In early December of 2010, a certain Canadian card counter nicknamed “Banned” was playing blackjack at the Fallsview Casino Resort in Ontario. He had been playing there intermittently for two and a half years without incident, but on this particular occasion, he was asked to leave the table and not return—“You are banned for life,” he was told.
When Banned protested and asked for a reason, he was informed that they didn’t have to give him a reason. The player then demanded that he be given a written notice, but they said they didn’t have to. “Because it’s ‘private property,’” the pit boss explained, they didn’t have to answer his questions or respond to any of his requests.
Banned complained to the shift manager, whom he described as “very well-mannered.” Had Banned broken the law? Was blackjack card counting now illegal in Canada? Or had he crossed some invisible line? The shift manager still wouldn’t provide any information. Out of sheer frustration Banned turned to an online forum for blackjack players in search of some insight.
A Matter of Law
Forum members were sympathetic to Banned’s situation, but they couldn’t offer a clear explanation of why he had been singled out. “Card counting’s not illegal,” said one executive member, “but I think they can back you off.” The group’s moderator concurred with that opinion: “They can kick you out for whatever reason they invent.”
A member in Windsor referred to the Ontario Gaming Control Act, saying, “You can only be banned if you fall under the exclusion of individuals list…. if you have been banned elsewhere, you’re an employee or supplier, convicted cheat, or involved with organized crime you can be banned. If they ban you for any other reason …your rights are being violated.”
Each province and territory in Canada has its own Gaming Control Act, of course. A member in Quebec looked up the local casino games regulations and found “there is absolutely nothing in it that says that it’s illegal to count cards at blackjack.” As it turns out, that’s true all across Canada—not a single statute mentions card counting as illegal. But perhaps that’s not the issue.
A Benchmark Case
Back in 1994, members of future Blackjack Hall of Famer Tommy Hyland’s card counting team were arrested at the Casino Windsor. The press reported, “Three people won more than $100,000 over three days before they were stopped and accused of cheating at blackjack… One gambled while the other two sat at the table and used a bead system to illegally count cards….”
The prosecutor contended that “team play” constituted fraud. However, after more than a year in litigation, a judge ruled that their winnings were the result of “intelligent strategy,” not cheating. Ever since then, use of skill and “powers of observation” at Canada’s blackjack tables has been considered “legal.” But that hasn’t stopped casinos from using their prerogative as “private properties” to ban undesirable players, such as card counters.
Much like courts in Nevada and California, the Canadian judicial system has established that “the ‘right to exclude others’ is a ‘fundamental element of private property ownership.’ The same fundamental rights of private property ownership also extend to gaming establishments.” So the legality of card counting is actually a moot point with respect to who can be excluded from play.
As the Windsor forum member told Banned, “The letter and spirit of the law is not unambiguous; it is clearly on the side of the players. Protecting your rights, however, costs time and money … so generally keeping a low profile is the smart play.”