Home Poker in Canada: Rake, Seat Fees and the Common Gaming House Test

The words that decide it

Section 197 of the Criminal Code contains the definitions behind Canada's gaming offences. A "game" is "a game of chance or mixed chance and skill", which comfortably covers poker. The key term is "common gaming house", defined in two parts in subsection 197(1).

Under paragraph (a), it is a place "kept for gain to which persons resort for the purpose of playing games". Under paragraph (b), it is a place kept or used for playing games:

1. in which a bank is kept by one or more but not all of the players;
2. in which all or any portion of the bets on or proceeds from a game is paid, directly or indirectly, to the keeper of the place;
3. in which, directly or indirectly, a fee is charged to or paid by the players for the privilege of playing or participating in a game or using gaming equipment; or
4. in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game.

Nothing in that list says "money changes hands". Friends playing for stakes at the kitchen table do not meet any of the tests just because they bet. What matters is whether the host, or anyone acting for the host, gains from the game, or whether the game itself is tilted.

Set-ups that cross the line

Each of the four sub-paragraphs maps onto a familiar way of running a game. The table puts common home-game arrangements next to the wording they run into.

The words "directly or indirectly" appear twice, and they matter. A charge collected as a "donation", a mandatory food-and-drink kitty or a cut taken by a friend on the host's behalf can still be read as a payment to the keeper or a fee to play. The Code does not list safe amounts or acceptable labels.

What a private game looks like

Section 204 sets out exemptions from the gaming-house and betting offences in sections 201 and 202. Paragraph 204(1)(b) covers "a private bet between individuals not engaged in any way in the business of betting". Subparagraph 204(1)(a)(iii) also exempts a person who holds stakes to pay them to "the winner of any bets between not more than ten individuals".

Read together with section 197, the text describes a game in which:

• every buy-in goes into the prize pool or the pots, and all of it is paid out to players;
• no one pays the host to sit down, use the cards and chips or join the tournament;
• the host plays on the same terms as everyone else, or does not play at all;
• the deal rotates, or the game has no house edge for whoever deals;
• nobody is in the business of organizing games or taking bets.

That is a description of the wording, not a guarantee. Whether a given game falls inside or outside the definition is a question for a court on the facts.

The social club exception, and who has to prove it

Subsection 197(2) gives one specific exception. A place occupied and used by an incorporated genuine social club, or a branch of one, is not a common gaming house under paragraph (a) or sub-paragraphs (b)(ii) and (iii) if no part of the bets or proceeds is paid to the keeper and no fee is charged to play, other than under a licence issued by the Attorney General of the province or a person or authority the Attorney General specifies.

Three limits are built in. The club has to be incorporated and genuine; the exception does not cover sub-paragraphs (b)(i) and (iv), so a player-kept bank or unequal chances are still caught; and subsection 197(3) puts the onus of proving that the exception applies on the accused. A group of friends who call themselves a club do not get the benefit of the exception by naming it.

Who can be charged, and with what

The offences are in section 201. Keeping a common gaming house is an indictable offence with a maximum of two years' imprisonment, or a summary conviction offence. Being found in one without lawful excuse, and knowingly letting a place be used as one as owner, landlord, lessor, tenant, occupier or agent, are summary conviction offences.

The definition of "keeper" is broad. It includes an owner or occupier, a person who assists or acts on behalf of one, a person who appears to do so, a person with care or management of the place, and anyone who uses a place "permanently or temporarily, with or without the consent of the owner or occupier". Renting a party room or borrowing a friend's basement does not move the role away from the person running the game.

Subsection 197(4) closes other gaps: a place can be a common gaming house even if only part of the game is played there, if the stake is held somewhere else, or if it is used only once in the paragraph (b) manner where the keeper has used another place on another occasion.

A short check before you host

• Count where every dollar goes. If any of it ends up with you or a helper rather than in a pot or prize, sub-paragraph (b)(ii) is in play.
• Do not charge to sit, to rent chips or to enter. That is sub-paragraph (b)(iii).
• Rotate the deal and avoid house-banked games. That covers (b)(i) and (b)(iv).
• Keep it private and occasional. A game run for profit points to paragraph (a).
• If you rent a venue, remember the landlord's own exposure under section 201(2)(b).

If you want a game with a rake that is legally run, it has to sit inside a provincially conducted scheme. Ontario's regulated market, covered in our Ontario guide, is one example, and our overview of Canadian online casinos explains the other provincial routes. Whatever format you choose, the responsible gaming page lists tools for setting limits.

This is general information about the text of the Criminal Code, not legal advice.