Full Text:Volume 1.1H

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Contents

GAMBLING AND GAMING

Gambling Offences


Gambling Offences
s. 201 of the Crim. Code
Election / Plea
Crown Election Indictment Summary
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court only (201(1), 202 and 203)
Prov. Court only (201(2))
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 14 days incarceration (second) (202 and 203)
30 days incarceration (third or more) (202 and 203)
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to gambling are found in Part VII of the Criminal Code relating to "Disorderly Houses, Gaming and Betting".

There are three classes of offences in relation to Gambling under the Criminal Code. Those offences relate Keeping a Gaming/Betting House (201), Betting and Book-Making (202), and Placing bets on behalf of others (203).

Pleadings

Offences under s. 201(1) [keeping gaming or betting house], 202 [betting, pool-selling, book-making, etc.] and 203 [placing bets on behalf of others] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 201(2) [person found in or owner permitting use] are straight summary conviction offence. The trial must be held in provincial court.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 201(1) [keeping gaming or betting house],
s. 202 [betting, pool-selling, book-making, etc.] or
s. 203 [placing bets on behalf of others]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 201(2) [person found in or owner permitting use] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 201(1), 201(2), 202 or 203, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Fingeprints and Photos

A peace officer who charges a person under s. 202 or 203 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 201(1) [keeping gaming or betting house],
202(1)(e)
OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 202(1)(a) to (d) or
203 [placing bets on behalf of others]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Keeping gaming or betting house

201 (1) Every person who keeps a common gaming house or common betting house is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
Person found in or owner permitting use

(2) Every one who

(a) is found, without lawful excuse, in a common gaming house or common betting house, or
(b) as owner, landlord, lessor, tenant, occupier or agent, knowingly permits a place to be let or used for the purposes of a common gaming house or common betting house,

is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 185; 2019, c. 25, s. 70.

CCC

Betting, pool-selling, book-making, etc.

202. (1) Every one commits an offence who

(a) uses or knowingly allows a place under his control to be used for the purpose of recording or registering bets or selling a pool;
(b) imports, makes, buys, sells, rents, leases, hires or keeps, exhibits, employs or knowingly allows to be kept, exhibited or employed in any place under his control any device or apparatus for the purpose of recording or registering bets or selling a pool, or any machine or device for gambling or betting;
(c) has under his control any money or other property relating to a transaction that is an offence under this section;
(d) records or registers bets or sells a pool;
(e) engages in book-making or pool-selling, or in the business or occupation of betting, or makes any agreement for the purchase or sale of betting or gaming privileges, or for the purchase or sale of information that is intended to assist in book-making, pool-selling or betting;
(f) prints, provides or offers to print or provide information intended for use in connection with book-making, pool-selling or betting on any horse-race, fight, game or sport, whether or not it takes place in or outside Canada or has or has not taken place;
(g) imports or brings into Canada any information or writing that is intended or is likely to promote or be of use in gambling, book-making, pool-selling or betting on a horse-race, fight, game or sport, and where this paragraph applies it is immaterial
(i) whether the information is published before, during or after the race, fight game or sport, or
(ii) whether the race, fight, game or sport takes place in Canada or elsewhere,

but this paragraph does not apply to a newspaper, magazine or other periodical published in good faith primarily for a purpose other than the publication of such information;

(h) advertises, prints, publishes, exhibits, posts up, or otherwise gives notice of any offer, invitation or inducement to bet on, to guess or to foretell the result of a contest, or a result of or contingency relating to any contest;
(i) wilfully and knowingly sends, transmits, delivers or receives any message that conveys any information relating to book-making, pool-selling, betting or wagering, or that is intended to assist in book-making, pool-selling, betting or wagering; or
(j) aids or assists in any manner in anything that is an offence under this section.


Punishment

(2) Every one who commits an offence under this section is guilty of an indictable offence and liable

(a) for a first offence, to imprisonment for not more than two years;
(b) for a second offence, to imprisonment for not more than two years and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.


R.S., 1985, c. C-46, s. 202; 2008, c. 18, s. 5.

CCC

Placing bets on behalf of others

203. Every one who

(a) places or offers or agrees to place a bet on behalf of another person for a consideration paid or to be paid by or on behalf of that other person,
(b) engages in the business or practice of placing or agreeing to place bets on behalf of other persons, whether for a consideration or otherwise, or
(c) holds himself out or allows himself to be held out as engaging in the business or practice of placing or agreeing to place bets on behalf of other persons, whether for a consideration or otherwise,


is guilty of an indictable offence and liable

(d) for a first offence, to imprisonment for not more than two years,
(e) for a second offence, to imprisonment for not more than two years and not less than fourteen days, and
(f) for each subsequent offence, to imprisonment for not more than two years and not less than three months.


R.S., c. C-34, s. 187; 1974-75-76, c. 93, s. 11.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving Keeping gaming or betting house under s. 201(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "keeps a common gaming house or common betting house".

Proving Person found in or owner permitting use under s. 201(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is either:
    1. found "in a common gaming house or common betting house and does not have a "lawful excuse" or
    2. the "owner, landlord, lessor, tenant occupier or agent" of a place and "permits a place to be let or used for the purposes of a common gaming house or common betting house"

Proving Betting, pool-selling, book-making, etc under s. 202(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. uses or knowingly allows a place under his control to be used for the purpose of recording or registering bets or selling a pool;
    2. imports, makes, buys, sells, rents, leases, hires or keeps, exhibits, employs or knowingly allows to be kept, exhibited or employed in any place under his control any device or apparatus for the purpose of recording or registering bets or selling a pool, or any machine or device for gambling or betting;
    3. has under his control any money or other property relating to a transaction that is an offence under this section;
    4. records or registers bets or sells a pool;
    5. engages in book-making or pool-selling, or in the business or occupation of betting, or makes any agreement for the purchase or sale of betting or gaming privileges, or for the purchase or sale of information that is intended to assist in book-making, pool-selling or betting;
    6. prints, provides or offers to print or provide information intended for use in connection with book-making, pool-selling or betting on any horse-race, fight, game or sport, whether or not it takes place in or outside Canada or has or has not taken place;
    7. imports or brings into Canada any information or writing that is intended or is likely to promote or be of use in gambling, book-making, pool-selling or betting on a horse-race, fight, game or sport, and where this paragraph applies it is immaterial ... whether the information is published before, during or after the race, fight game or sport, or ... whether the race, fight, game or sport takes place in Canada or elsewhere and the publication is not "a newspaper, magazine or other periodical published in good faith primarily for a purpose other than the publication of such information";
    8. advertises, prints, publishes, exhibits, posts up, or otherwise gives notice of any offer, invitation or inducement to bet on, to guess or to foretell the result of a contest, or a result of or contingency relating to any contest;
    9. wilfully and knowingly sends, transmits, delivers or receives any message that conveys any information relating to book-making, pool-selling, betting or wagering, or that is intended to assist in book-making, pool-selling, betting or wagering; or
    10. aids or assists in any manner in anything that is an offence under this section.

Proving Placing bets on behalf of others under s. 203 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
      1. places or offers or agrees to place a bet on behalf of another person for a consideration paid or to be paid by or on behalf of that other person,
      2. engages in the business or practice of placing or agreeing to place bets on behalf of other persons, whether for a consideration or otherwise, or
      3. holds himself out or allows himself to be held out as engaging in the business or practice of placing or agreeing to place bets on behalf of other persons, whether for a consideration or otherwise,

Interpretation of the Offence

Purpose

The primary concern of s. 202 is concerned with "bookmakers, pool sellers, gaming house keepers and their activities" as well as those who assist them. It is not concerned with those buy tickets or place bets.[1]

"Bookmaking"

The term bookmaking refers to the profession of taking or negotiating bets, keeping betting accounts. It is not limited to horseracing.[2]

"Betting" and "Gaming"

Acquiring a share of a lottery ticket can be a form of gaming or betting.[3]

Keeping Betting Devices (202(1)(b))

To make out an offence under s. 202(1)(b), the Crown is required to prove: [4]

  1. "that the [accused] kept devices in a place under her control" (actus reus);
  2. "that these devices were gambling devices" (actus reus); and
  3. "that the [accused] knew that the devices were gambling devices and knowingly kept them".
Recording or Registering (202(1)(d))

The recording that makes up the offence under s. 202(1)(d) must be that of the book-keeper, not the bettor.[5]

Constitutionality

Section 199 does not violate the Charter.[6]

The provision of s. 202(1)(b) is intra vires the authority of Parliament criminal law making powers.[7]

  1. R v Michael, 1974 ALTASCAD 48 (CanLII), per Moir JA, at para 22 ("The entire section is chiefly concerned with a certain class of society, bookmakers, pool sellers, gaming house keepers and their activities. In addition, the section is aimed at those who assist or aid these people, and their activities are made criminal. Parliament has not made it a crime to buy a pool ticket or to place a bet with the bookmaker.")
  2. R v Decome, 1991 CanLII 3847 (QC CA)
  3. R v World Media Brokers Inc., 1998 CanLII 27760 (ON CJ), per Fairgrieve J("... Brooke J.A.'s use of the word "game" to describe the risking of money that could produce either a win or loss. His Lordship also observed that the accused there had been properly acquitted by the trial judge of the charge of "placing bets for consideration", not because "bets" were not being placed, but because there was no "consideration" received by the accused for having done so. That, in my view, provides appellate authority for the obvious proposition, ..., that acquiring a share of a lottery ticket is a "bet" and a lottery is a "game", within the meaning of the Criminal Code.")
  4. R v Kent, 1994 CanLII 62 (SCC), [1994] 3 SCR 133
  5. Michael, supra, at para 20 ("In that sense they must apply to the records or register of the bookmaker and not to the mere writing of the appellant. In my view the writing by the appleeant was merely a convenient means of communicating the appellant’s selections for the day and the amounts he wished to wager on each horse to the bookmaker.")
  6. R v Huynh, 2009 ABQB 637 (CanLII), per Hawco J
  7. R v J.B.L. Amusements Ltd., 1998 CanLII 18037 (NL CA), per Gushue JA, at paras 8 to 14

Misc Definitions

PART VII
Disorderly Houses, Gaming and Betting
Interpretation
Definitions

197 (1) In this Part [Pt. VII – Disorderly Houses, Gaming and Betting (s. 197 to 213)],

bet means a bet that is placed on any contingency or event that is to take place in or out of Canada, and without restricting the generality of the foregoing, includes a bet that is placed on any contingency relating to a horse-race, fight, match or sporting event that is to take place in or out of Canada; (pari)

...
common betting house means a place that is opened, kept or used for the purpose of

(a) enabling, encouraging or assisting persons who resort thereto to bet between themselves or with the keeper, or
(b) enabling any person to receive, record, register, transmit or pay bets or to announce the results of betting; (maison de pari)

common gaming house means a place that is

(a) kept for gain to which persons resort for the purpose of playing games, or
(b) kept or used for the purpose of playing games
(i) in which a bank is kept by one or more but not all of the players,
(ii) 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,
(iii) 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
(iv) 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; (maison de jeu)

disorderly house means a common betting house or a common gaming house; (maison de désordre)

game means a game of chance or mixed chance and skill; (jeu)

gaming equipment means anything that is or may be used for the purpose of playing games or for betting; (matériel de jeu)

keeper includes a person who

(a) is an owner or occupier of a place,
(b) assists or acts on behalf of an owner or occupier of a place,
(c) appears to be, or to assist or act on behalf of an owner or occupier of a place,
(d) has the care or management of a place, or
(e) uses a place permanently or temporarily, with or without the consent of the owner or occupier thereof; (tenancier)

place includes any place, whether or not

(a) it is covered or enclosed,
(b) it is used permanently or temporarily, or
(c) any person has an exclusive right of user with respect to it; (local ou endroit)

public place includes any place to which the public have access as of right or by invitation, express or implied. (endroit public)

Exception

(2) A place is not a common gaming house within the meaning of paragraph (a) or subparagraph (b)(ii) or (iii) of the definition common gaming house in subsection (1) while it is occupied and used by an incorporated genuine social club or branch thereof, if

(a) the whole or any portion of the bets on or proceeds from games played therein is not directly or indirectly paid to the keeper thereof; and
(b) no fee is charged to persons for the right or privilege of participating in the games played therein other than under the authority of and in accordance with the terms of a licence issued by the Attorney General of the province in which the place is situated or by such other person or authority in the province as may be specified by the Attorney General thereof.
Onus

(3) The onus of proving that, by virtue of subsection (2) , a place is not a common gaming house is on the accused.

Effect when game partly played on premises

(4) A place may be a common gaming house notwithstanding that

(a) it is used for the purpose of playing part of a game and another part of the game is played elsewhere;
(b) the stake that is played for is in some other place; or
(c) it is used on only one occasion in the manner described in paragraph (b) of the definition common gaming house in subsection (1) [disorderly houses, gaming and betting – definitions], if the keeper or any person acting on behalf of or in concert with the keeper has used another place on another occasion in the manner described in that paragraph.

R.S., 1985, c. C-46, s. 197; R.S., 1985, c. 27 (1st Supp.), s. 29; 2014, c. 25, s. 12; 2019, c. 25, s. 69.1.
[annotation(s) added]

CCC

Exemptions

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties

Offences under s. 201(1) and 202(2) are straight indictable. The maximum penalty is 2 years incarceration.

Offences under s. 201(2) are straight summary conviction offences. The maximum penalty is 2 years incarceration.

Minimum Penalties

Offences under s. 201(1) and (2) have no mandatory minimum penalties.

For offences under s. 202 and 203 have a mandatory minimum of 14 days jail on a second conviction and 3 months jail on three or more convictions there is a mandatory minimum penalty of {{{2}}}.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 201(1) and (2), 202(2)
N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 202 and 203
With prior convictions
N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ranges

Discharges, either conditional or absolute, are a possible disposition for first-time offenders. [1]

  1. R v Colosimo, 2011 MBPC 70 (CanLII), per Pollack J

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order under s. 743.21 any A discretionary order prohibiting the offender from communicating with named persons while he is in custody.
Restitution Orders any A discretionary Order on application under s. 738, for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Weapons and Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

1985 to 2008

Betting, pool-selling, book-making, etc.

202. (1) Every one commits an offence who

(a) uses or knowingly allows a place under his control to be used for the purpose of recording or registering bets or selling a pool;
(b) imports, makes, buys, sells, rents, leases, hires or keeps, exhibits, employs or knowingly allows to be kept, exhibited or employed in any place under his control any device or apparatus for the purpose of recording or registering bets or selling a pool, or any machine or device for gambling or betting;
(c) has under his control any money or other property relating to a transaction that is an offence under this section;
(d) records or registers bets or sells a pool;
(e) engages in book-making or pool-selling, or in the business or occupation of betting, or makes any agreement for the purchase or sale of betting or gaming privileges, or for the purchase or sale of information that is intended to assist in book-making, pool-selling or betting;
(f) prints, provides or offers to print or provide information intended for use in connection with book-making, pool-selling or betting on any horse-race, fight, game or sport, whether or not it takes place in or outside Canada or has or has not taken place;
(g) imports or brings into Canada any information or writing that is intended or is likely to promote or be of use in gambling, book-making, pool-selling or betting on a horse-race, fight, game or sport, and where this paragraph applies it is immaterial
(i) whether the information is published before, during or after the race, fight game or sport, or
(ii) whether the race, fight, game or sport takes place in Canada or elsewhere,

but this paragraph does not apply to a newspaper, magazine or other periodical published in good faith primarily for a purpose other than the publication of such information;

(h) advertises, prints, publishes, exhibits, posts up, or otherwise gives notice of any offer, invitation or inducement to bet on, to guess or to foretell the result of a contest, or a result of or contingency relating to any contest;
(i) wilfully and knowingly sends, transmits, delivers or receives any message by radio, telegraph, telephone, mail or express that conveys any information relating to book-making, pool-selling, betting or wagering, or that is intended to assist in book-making, pool-selling, betting or wagering; or
(j) aids or assists in any manner in anything that is an offence under this section.
Punishment

(2) Every one who commits an offence under this section is guilty of an indictable offence and liable

(a) for a first offence, to imprisonment for not more than two years;
(b) for a second offence, to imprisonment for not more than two years and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

R.S., c. C-34, s. 186; 1974-75-76, c. 93, s. 11.

Placing bets on behalf of others

203. Every one who

(a) places or offers or agrees to place a bet on behalf of another person for a consideration paid or to be paid by or on behalf of that other person,
(b) engages in the business or practice of placing or agreeing to place bets on behalf of other persons, whether for a consideration or otherwise, or
(c) holds himself out or allows himself to be held out as engaging in the business or practice of placing or agreeing to place bets on behalf of other persons, whether for a consideration or otherwise,

is guilty of an indictable offence and liable

(d) for a first offence, to imprisonment for not more than two years,
(e) for a second offence, to imprisonment for not more than two years and not less than fourteen days, and
(f) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

R.S., c. C-34, s. 187; 1974-75-76, c. 93, s. 11.

CCC

See Also

References

Exemptions for Gaming Offences

General Principles

See also: Gambling Offences (Offence)
Exemption

204 (1) Sections 201 [keeping gaming or betting house] and 202 [betting, pool-selling, book-making, etc.] do not apply to

(a) any person or association by reason of his or their becoming the custodian or depository of any money, property or valuable thing staked, to be paid to
(i) the winner of a lawful race, sport, game or exercise,
(ii) the owner of a horse engaged in a lawful race, or
(iii) the winner of any bets between not more than ten individuals;
(b) a private bet between individuals not engaged in any way in the business of betting;
(c) bets made or records of bets made through the agency of a pari-mutuel system on running, trotting or pacing horse-races if
(i) the bets or records of bets are made on the race-course of an association in respect of races conducted at that race-course or another race-course in or out of Canada, and, in the case of a race conducted on a race-course situated outside Canada, the governing body that regulates the race has been certified as acceptable by the Minister of Agriculture and Agri-Food or a person designated by that Minister pursuant to subsection (8.1) and that Minister or person has permitted pari-mutuel betting in Canada on the race pursuant to that subsection, and
(ii) the provisions of this section and the regulations are complied with.
Exception

(1.1) For greater certainty, a person may, in accordance with the regulations, do anything described in section 201 [keeping gaming or betting house] or 202 [betting, pool-selling, book-making, etc.], if the person does it for the purposes of legal pari-mutuel betting.

Presumption

(2) For the purposes of paragraph (1)(c), bets made, in accordance with the regulations, in a betting theatre referred to in paragraph (8)(e), or by any means of telecommunication to the race-course of an association or to such a betting theatre, are deemed to be made on the race-course of the association.

Operation of pari-mutuel system

(3) No person or association shall use a pari-mutuel system of betting in respect of a horse-race unless the system has been approved by and its operation is carried on under the supervision of an officer appointed by the Minister of Agriculture and Agri-Food.

Supervision of pari-mutuel system

(4) Every person or association operating a pari-mutuel system of betting in accordance with this section in respect of a horse-race, whether or not the person or association is conducting the race-meeting at which the race is run, shall pay to the Receiver General in respect of each individual pool of the race and each individual feature pool one-half of one per cent, or such greater fraction not exceeding one per cent as may be fixed by the Governor in Council, of the total amount of money that is bet through the agency of the pari-mutuel system of betting.

Percentage that may be deducted and retained

(5) Where any person or association becomes a custodian or depository of any money, bet or stakes under a pari-mutuel system in respect of a horse-race, that person or association shall not deduct or retain any amount from the total amount of money, bets or stakes unless it does so pursuant to subsection (6).

Percentage that may be deducted and retained

(6) An association operating a pari-mutuel system of betting in accordance with this section in respect of a horse-race, or any other association or person acting on its behalf, may deduct and retain from the total amount of money that is bet through the agency of the pari-mutuel system, in respect of each individual pool of each race or each individual feature pool, a percentage not exceeding the percentage prescribed by the regulations plus any odd cents over any multiple of five cents in the amount calculated in accordance with the regulations to be payable in respect of each dollar bet.

Stopping of betting

(7) Where an officer appointed by the Minister of Agriculture and Agri-Food is not satisfied that the provisions of this section and the regulations are being carried out in good faith by any person or association in relation to a race meeting, he may, at any time, order any betting in relation to the race meeting to be stopped for any period that he considers proper.

Regulations

(8) The Minister of Agriculture and Agri-Food may make regulations

(a) prescribing the maximum number of races for each race-course on which a race meeting is conducted, in respect of which a pari-mutuel system of betting may be used for the race meeting or on any one calendar day during the race meeting, and the circumstances in which the Minister of Agriculture and Agri-Food or a person designated by him for that purpose may approve of the use of that system in respect of additional races on any race-course for a particular race meeting or on a particular day during the race meeting;
(b) prohibiting any person or association from using a pari-mutuel system of betting for any race-course on which a race meeting is conducted in respect of more than the maximum number of races prescribed pursuant to paragraph (a) and the additional races, if any, in respect of which the use of a pari-mutuel system of betting has been approved pursuant to that paragraph;
(c) prescribing the maximum percentage that may be deducted and retained pursuant to subsection (6) [Percentage that may be deducted and retained] by or on behalf of a person or association operating a pari-mutuel system of betting in respect of a horse-race in accordance with this section and providing for the determination of the percentage that each such person or association may deduct and retain;
(d) respecting pari-mutuel betting in Canada on horse-races conducted on a race-course situated outside Canada; and
(e) authorizing pari-mutuel betting and governing the conditions for pari-mutuel betting, including the granting of licences therefor, that is conducted by an association in a betting theatre owned or leased by the association in a province in which the Lieutenant Governor in Council, or such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, has issued a licence to that association for the betting theatre.


Approvals

(8.1) The Minister of Agriculture and Agri-Food or a person designated by that Minister may, with respect to a horse-race conducted on a race-course situated outside Canada,

(a) certify as acceptable, for the purposes of this section, the governing body that regulates the race; and
(b) permit pari-mutuel betting in Canada on the race.
Idem

(9) The Minister of Agriculture and Agri-Food may make regulations respecting

(a) the supervision and operation of pari-mutuel systems related to race meetings, and the fixing of the dates on which and the places at which an association may conduct those meetings;
(b) the method of calculating the amount payable in respect of each dollar bet;
(c) the conduct of race-meetings in relation to the supervision and operation of pari-mutuel systems, including photo-finishes, video patrol and the testing of bodily substances taken from horses entered in a race at such meetings, including, in the case of a horse that dies while engaged in racing or immediately before or after the race, the testing of any tissue taken from its body;
(d) the prohibition, restriction or regulation of
(i) the possession of drugs or medicaments or of equipment used in the administering of drugs or medicaments at or near race-courses, or
(ii) the administering of drugs or medicaments to horses participating in races run at a race meeting during which a pari-mutuel system of betting is used; and
(e) the provision, equipment and maintenance of accommodation, services or other facilities for the proper supervision and operation of pari-mutuel systems related to race meetings, by associations conducting those meetings or by other associations.
900 metre zone

(9.1) For the purposes of this section, the Minister of Agriculture and Agri-Food may designate, with respect to any race-course, a zone that shall be deemed to be part of the race-course, if

(a) the zone is immediately adjacent to the race-course;
(b) the farthest point of that zone is not more than 900 metres from the nearest point on the race track of the race-course; and
(c) all real property situated in that zone is owned or leased by the person or association that owns or leases the race-course.
Contravention

(10) Every person who contravenes or fails to comply with any of the provisions of this section or of any regulations made under this section is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Definition of “association”

(11) For the purposes of this section, association means an association incorporated by or pursuant to an Act of Parliament or of the legislature of a province that owns or leases a race-course and conducts horse-races in the ordinary course of its business and, to the extent that the applicable legislation requires that the purposes of the association be expressly stated in its constating instrument, having as one of its purposes the conduct of horse-races.
R.S., 1985, c. C-46, s. 204; R.S., 1985, c. 47 (1st Supp.), s. 1; 1989, c. 2, s. 1; 1994, c. 38, ss. 14, 25; 2008, c. 18, s. 6.

CCC

Lottery Offences


Lottery Offences
s. 206, 207, 207.1 and 209 of the Crim. Code
Election / Plea
Crown Election Indictment (206(1) and 209)
Summary (206(4), 207, and 207.1)
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to lottery are found in Part VII of the Criminal Code relating to "Disorderly Houses, Gaming and Betting".

Pleadings

Offences under s. 206(1) and 209 are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 206(4), 207, and 207.1 are straight summary conviction offence. The trial must be held in provincial court.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 206(1) or 209 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 206(4) , 207 , and 207.1 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

When charged under s. 206(1), 206(4), 207, 207.1 or 209, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 206(1), 206(4), 207, 207.1 or 209 OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Offence in relation to lotteries and games of chance

206 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction who

(a) makes, prints, advertises or publishes, or causes or procures to be made, printed, advertised or published, any proposal, scheme or plan for advancing, lending, giving, selling or in any way disposing of any property by lots, cards, tickets or any mode of chance whatever;
(b) sells, barters, exchanges or otherwise disposes of, or causes or procures, or aids or assists in, the sale, barter, exchange or other disposal of, or offers for sale, barter or exchange, any lot, card, ticket or other means or device for advancing, lending, giving, selling or otherwise disposing of any property by lots, tickets or any mode of chance whatever;
(c) knowingly sends, transmits, mails, ships, delivers or allows to be sent, transmitted, mailed, shipped or delivered, or knowingly accepts for carriage or transport or conveys any article that is used or intended for use in carrying out any device, proposal, scheme or plan for advancing, lending, giving, selling or otherwise disposing of any property by any mode of chance whatever;
(d) conducts or manages any scheme, contrivance or operation of any kind for the purpose of determining who, or the holders of what lots, tickets, numbers or chances, are the winners of any property so proposed to be advanced, lent, given, sold or disposed of;
(e) conducts, manages or is a party to any scheme, contrivance or operation of any kind by which any person, on payment of any sum of money, or the giving of any valuable security, or by obligating himself to pay any sum of money or give any valuable security, shall become entitled under the scheme, contrivance or operation to receive from the person conducting or managing the scheme, contrivance or operation, or any other person, a larger sum of money or amount of valuable security than the sum or amount paid or given, or to be paid or given, by reason of the fact that other persons have paid or given, or obligated themselves to pay or give any sum of money or valuable security under the scheme, contrivance or operation;
(f) disposes of any goods, wares or merchandise by any game of chance or any game of mixed chance and skill in which the contestant or competitor pays money or other valuable consideration;
(g) induces any person to stake or hazard any money or other valuable property or thing on the result of any dice game, three-card monte, punch board, coin table or on the operation of a wheel of fortune;
(h) for valuable consideration carries on or plays or offers to carry on or to play, or employs any person to carry on or play in a public place or a place to which the public have access, the game of three-card monte;
(i) receives bets of any kind on the outcome of a game of three-card monte; or
(j) being the owner of a place, permits any person to play the game of three-card monte therein.
Definition of “three-card monte”

(2) In this section, “three-card monte” means the game commonly known as three-card monte and includes any other game that is similar to it, whether or not the game is played with cards and notwithstanding the number of cards or other things that are used for the purpose of playing.

Exemption for fairs

(3) Paragraphs (1)(f) [lottery offences – disposing goods in game of chance with buy-in] and (g) [lottery offences – induce person to put money at risk in dice game, 3-card monte, punch board, or wheel of fortune], in so far as they do not relate to a dice game, three-card monte, punch board or coin table, do not apply to the board of an annual fair or exhibition, or to any operator of a concession leased by that board within its own grounds and operated during the fair or exhibition on those grounds.

Definition of “fair or exhibition”

(3.1) For the purposes of this section, “fair or exhibition” means an event where agricultural or fishing products are presented or where activities relating to agriculture or fishing take place.

Offence

(4) Every one who buys, takes or receives a lot, ticket or other device mentioned in subsection (1) [lottery offences – forms of offence] is guilty of an offence punishable on summary conviction.

Lottery sale void

(5) Every sale, loan, gift, barter or exchange of any property, by any lottery, ticket, card or other mode of chance depending on or to be determined by chance or lot, is void, and all property so sold, lent, given, bartered or exchanged is forfeited to Her Majesty.

Bona fide exception

(6) Subsection (5) [lottery sale void] does not affect any right or title to property acquired by any bona fide purchaser for valuable consideration without notice.

Foreign lottery included

(7) This section applies to the printing or publishing, or causing to be printed or published, of any advertisement, scheme, proposal or plan of any foreign lottery, and the sale or offer for sale of any ticket, chance or share, in any such lottery, or the advertisement for sale of such ticket, chance or share, and the conducting or managing of any such scheme, contrivance or operation for determining the winners in any such lottery.

Saving

(8) This section does not apply to

(a) the division by lot or chance of any property by joint tenants or tenants in common, or persons having joint interests in any such property; or
(b) [Repealed, 1999, c. 28, s. 156]
(c) bonds, debentures, debenture stock or other securities recallable by drawing of lots and redeemable with interest and providing for payment of premiums on redemption or otherwise.

R.S., 1985, c. C-46, s. 206; R.S., 1985, c. 52 (1st Supp.), s. 2; 1999, c. 28, s. 156; 2019, c. 25, s. 71.
[annotation(s) added]

CCC

207.
...

Offence

(3) Every one who, for the purposes of a lottery scheme, does anything that is not authorized by or pursuant to a provision of this section

(a) in the case of the conduct, management or operation of that lottery scheme,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, or
(ii) is guilty of an offence punishable on summary conviction; or
(b) in the case of participating in that lottery scheme, is guilty of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 207; R.S., 1985, c. 27 (1st Supp.), s. 31, c. 52 (1st Supp.), s. 3; 1999, c. 5, s. 6; 2014, c. 39, s. 171; 2018, c. 29, s. 17.

CCC

207.1
...

Offence

(3) Every one who, for the purpose of a lottery scheme, does anything that is not authorized by this section

(a) in the case of the conduct, management or operation of the lottery scheme,
(i) is guilty of an indictable offence and liable to imprisonment for a term of not more than two years, or
(ii) is guilty of an offence punishable on summary conviction; and
(b) in the case of participating in the lottery scheme, is guilty of an offence punishable on summary conviction.

...
1999, c. 5, s. 7.

CCC

Cheating at play

209 Every person who, with intent to defraud any person, cheats while playing a game or in holding the stakes for a game or in betting is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 209; 2019, c. 25, s. 72

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving Offence in relation to lotteries and games of chance under s. 206 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. makes, prints, advertises or publishes, or causes or procures to be made, printed, advertised or published, any proposal, scheme or plan for advancing, lending, giving, selling or in any way disposing of any property by lots, cards, tickets or any mode of chance whatever;
    2. sells, barters, exchanges or otherwise disposes of, or causes or procures, or aids or assists in, the sale, barter, exchange or other disposal of, or offers for sale, barter or exchange, any lot, card, ticket or other means or device for advancing, lending, giving, selling or otherwise disposing of any property by lots, tickets or any mode of chance whatever;
    3. knowingly sends, transmits, mails, ships, delivers or allows to be sent, transmitted, mailed, shipped or delivered, or knowingly accepts for carriage or transport or conveys any article that is used or intended for use in carrying out any device, proposal, scheme or plan for advancing, lending, giving, selling or otherwise disposing of any property by any mode of chance whatever;
    4. conducts or manages any scheme, contrivance or operation of any kind for the purpose of determining who, or the holders of what lots, tickets, numbers or chances, are the winners of any property so proposed to be advanced, lent, given, sold or disposed of;
    5. conducts, manages or is a party to any scheme, contrivance or operation of any kind by which any person, on payment of any sum of money, or the giving of any valuable security, or by obligating himself to pay any sum of money or give any valuable security, shall become entitled under the scheme, contrivance or operation to receive from the person conducting or managing the scheme, contrivance or operation, or any other person, a larger sum of money or amount of valuable security than the sum or amount paid or given, or to be paid or given, by reason of the fact that other persons have paid or given, or obligated themselves to pay or give any sum of money or valuable security under the scheme, contrivance or operation;
    6. disposes of any goods, wares or merchandise by any game of chance or any game of mixed chance and skill in which the contestant or competitor pays money or other valuable consideration;
    7. induces any person to stake or hazard any money or other valuable property or thing on the result of any dice game, three-card monte, punch board, coin table or on the operation of a wheel of fortune;
    8. for valuable consideration carries on or plays or offers to carry on or to play, or employs any person to carry on or play in a public place or a place to which the public have access, the game of three-card monte;
    9. receives bets of any kind on the outcome of a game of three-card monte; or
    10. being the owner of a place, permits any person to play the game of three-card monte therein.
  5. the prohibited conduct is not part of "an annual fair or exhibition", or relates "to any operator of a concession leased by that board within its own grounds and operated during the fair or exhibition on those grounds""

Proving lottery scheme conduct under s. 207 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "does anything that is not authorized by or pursuant to" s. 207 including:
    1. "conduct, management or operation of that lottery scheme"; and
    2. "participating in that lottery scheme".
  5. the prohibited conduct was "for the purpose of a lottery scheme";

Proving Cheating at play under s. 207.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "does anything that is not authorized by s. 207.1 (including "conduct, management or operation of the lottery scheme" or "participating in the lottery scheme")
  5. the prohibited conduct is "for the purpose of a lottery scheme";

Proving Cheating at play under s. 209 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "cheats while playing a game or in holding the stakes for a game or in betting"; and
  5. the culprit had "intent to defraud" the person.

Pyramid Schemes (206(1)(e))

The purpose of 206(1)(e) is to "protect persons from those who would exploit people who understandably dream of substantial monetary gains that materialize overnight".[1]

The crown must prove that there is a prohibited "scheme".[2]

The determination of whether a scheme is prohibited requires looking at the scheme itself to make the determination.[3]

The schemes addressed by s. 206(1)(e) are those "where a person paying a lesser valuable security shall become entitled to receive a greater valuable security as the result of the participation of others in the scheme."[4]

The primary issue is whether the scheme provides that a participant will receive a larger amount than he paid in due to other people, usually newer recruits, contributing.[5]

Just because a portion of the operation is a legitimate business does not exempt it from liability where another portion of the business engages in the prohibited conduct.[6]

  1. R v MacKenzie (1982), 1982 CanLII 2090 (ON CA), 66 CCC (2d) 528, per Cory JA, at p. 531
  2. MacKenzie, ibid., at p. 531
  3. MacKenzie, ibid., at p. 531
  4. R v Golden Canada Products, [1974] 1 W.W.R. 593, 15 CCC (2d) 1, 1973 ALTASCAD 124 (CanLII), per McDermid JA, at 8, aff'd (1975), 31 C.R.N.S. 396 (SCC), 1975 CanLII 1204 (SCC), per Laskin CJ
  5. Dream Home Contests (Edmonton) Limited v The Queen; Hodges v The Queen, 1960 CanLII 61 (SCC), [1960] SCR 414, 126 CCC 241, per Taschereau J at 250 ("whether, under the scheme, a participant will receive a larger amount of valuable security than he paid because other persons had contributed to the scheme")
    R v Canus of North America Ltd. (1964), 1964 CanLII 368 (SK CA), per Woods JA ("The nub of its requirement is that a larger sum may be payable because others may participate. ...The question to be answered ...is whether or not, under the scheme, the participant stands to receive a larger amount back than he paid in, because other persons have contributed. In other words, if the purchasers may become entitled to receive more than they pay because others have contributed, then the offence lies.") MacKenzie, supra, at p. 531
  6. Golden Canada Products Ltd, supra at page 200
    R v Friskie, 2001 CanLII 866 (SK PC), per Snell J, at para 8

Exemptions for Lottery Offences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties

Offences under s. 206 are straight indictable. The maximum penalty is 2 years incarceration.

Offences under s. 207(3)(a) and 207.1(3)(a) are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Offences under s. 207(3)(b) and 207.1(3)(b) are straight summary conviction offences. The maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Offences under s. 209 are straight indictable. The maximum penalty is 2 years incarceration.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 207(3)(a) and 207.1(3)(a) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 206, 207(3)(b) and 207.1(3)(b) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Exemptions for Lottery Offences

Permitted Lotteries

Permitted lotteries

207 (1) Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful

(a) for the government of a province, either alone or in conjunction with the government of another province, to conduct and manage a lottery scheme in that province, or in that and the other province, in accordance with any law enacted by the legislature of that province;
(b) for a charitable or religious organization, pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, to conduct and manage a lottery scheme in that province if the proceeds from the lottery scheme are used for a charitable or religious object or purpose;
(c) for the board of a fair or of an exhibition, or an operator of a concession leased by that board, to conduct and manage a lottery scheme in a province where the Lieutenant Governor in Council of the province or such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof has
(i) designated that fair or exhibition as a fair or exhibition where a lottery scheme may be conducted and managed, and
(ii) issued a licence for the conduct and management of a lottery scheme to that board or operator;
(d) for any person, pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, to conduct and manage a lottery scheme at a public place of amusement in that province if
(i) the amount or value of each prize awarded does not exceed five hundred dollars, and
(ii) the money or other valuable consideration paid to secure a chance to win a prize does not exceed two dollars;
(e) for the government of a province to agree with the government of another province that lots, cards or tickets in relation to a lottery scheme that is by any of paragraphs (a) to (d) [x] authorized to be conducted and managed in that other province may be sold in the province;
(f) for any person, pursuant to a licence issued by the Lieutenant Governor in Council of a province or such other person or authority in the province as may be designated by the Lieutenant Governor in Council thereof, to conduct and manage in the province a lottery scheme that is authorized to be conducted and managed in one or more other provinces where the authority by which the lottery scheme was first authorized to be conducted and managed consents thereto;
(g) for any person, for the purpose of a lottery scheme that is lawful in a province under any of paragraphs (a) to (f) [x], to do anything in the province, in accordance with the applicable law or licence, that is required for the conduct, management or operation of the lottery scheme or for the person to participate in the scheme; and
(h) for any person to make or print anywhere in Canada or to cause to be made or printed anywhere in Canada anything relating to gaming and betting that is to be used in a place where it is or would, if certain conditions provided by law are met, be lawful to use such a thing, or to send, transmit, mail, ship, deliver or allow to be sent, transmitted, mailed, shipped or delivered or to accept for carriage or transport or convey any such thing where the destination thereof is such a place.
Terms and conditions of licence

(2) Subject to this Act, a licence issued by or under the authority of the Lieutenant Governor in Council of a province as described in paragraph (1)(b) [x], (c) [x], (d) [x] or (f) [x] may contain such terms and conditions relating to the conduct, management and operation of or participation in the lottery scheme to which the licence relates as the Lieutenant Governor in Council of that province, the person or authority in the province designated by the Lieutenant Governor in Council thereof or any law enacted by the legislature of that province may prescribe.
(3)...

Definition of lottery scheme

(4) In this section, lottery scheme means a game or any proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g) [lottery offences – select forms of offence], whether or not it involves betting, pool selling or a pool system of betting other than

(a) three-card monte, punch board or coin table;
(b) bookmaking, pool selling or the making or recording of bets, including bets made through the agency of a pool or pari-mutuel system, on any race or fight, or on a single sport event or athletic contest; or
(c) for the purposes of paragraphs (1)‍(b) to (f) [x], a game or proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)‍(a) to (g) [lottery offences – select forms of offence] that is operated on or through a computer, video device, slot machine or a dice game.
Definition of slot machine

(4.01) In paragraph 4(c), slot machine means any automatic machine or slot machine, other than any automatic machine or slot machine that dispenses as prizes only one or more free games on that machine, that

(a) is used or intended to be used for any purpose other than selling merchandise or services; or
(b) is used or intended to be used for the purpose of selling merchandise or services if
(i) the result of one of any number of operations of the machine is a matter of chance or uncertainty to the operator,
(ii) as a result of a given number of successive operations by the operator, the machine produces different results, or
(iii) on any operation of the machine, it discharges or emits a slug or token.
Exception — charitable or religious organization

(4.1) ...

Exception re
pari-mutuel betting

(5) For greater certainty, nothing in this section shall be construed as authorizing the making or recording of bets on horse-races through the agency of a pari-mutuel system other than in accordance with section 204 [excemptions for gaming and betting offences].
R.S., 1985, c. C-46, s. 207; R.S., 1985, c. 27 (1st Supp.), s. 31, c. 52 (1st Supp.), s. 3; 1999, c. 5, s. 6; 2014, c. 39, s. 171; 2018, c. 29, s. 17.
[annotation(s) added]

CCC

Lotteries on Cruise Ships

Exemption — lottery scheme on an international cruise ship

207.1 (1) Despite any of the provisions of this Part relating to gaming and betting, it is lawful for the owner or operator of an international cruise ship, or their agent, to conduct, manage or operate and for any person to participate in a lottery scheme during a voyage on an international cruise ship when all of the following conditions are satisfied:

(a) all the people participating in the lottery scheme are located on the ship;
(b) the lottery scheme is not linked, by any means of communication, with any lottery scheme, betting, pool selling or pool system of betting located off the ship;
(c) the lottery scheme is not operated within five nautical miles of a Canadian port at which the ship calls or is scheduled to call; and
(d) the ship is registered
(i) in Canada and its entire voyage is scheduled to be outside Canada, or
(ii) anywhere, including Canada, and its voyage includes some scheduled voyaging within Canada and the voyage
(A) is of at least forty-eight hours duration and includes some voyaging in international waters and at least one non-Canadian port of call including the port at which the voyage begins or ends, and
(B) is not scheduled to disembark any passengers at a Canadian port who have embarked at another Canadian port, without calling on at least one non-Canadian port between the two Canadian ports.
Paragraph 207(1)(h) and subsection 207(5) [x] apply

(2) For greater certainty, paragraph 207(1)(h) [x] and subsection 207(5) [x] apply for the purposes of this section.

Offence

(3) ...

Definitions

(4) The definitions in this subsection apply in this section.

international cruise ship means a passenger ship that is suitable for continuous ocean voyages of at least forty-eight hours duration, but does not include such a ship that is used or fitted for the primary purpose of transporting cargo or vehicles. (navire de croisière internationale)
lottery scheme means a game or any proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g) [lottery offences – select forms of offence], whether or not it involves betting, pool selling or a pool system of betting. It does not include
(a) three-card monte, punch board or coin table; or
(b) bookmaking, pool selling or the making or recording of bets, including bets made through the agency of a pool or pari-mutuel system, on any race or fight, or on a single sporting event or athletic contest. (loterie)

1999, c. 5, s. 7.

CCC

Prize Fights


Prize Fights
s. 83 of the Crim. Code
Election / Plea
Crown Election Summary
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court only
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to prize fights are found in Part II of the Criminal Code relating to "Offences Against Public Order".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 83 [prize fight] Summary Offence(s) N/A No

Offences under s. 83 are straight summary conviction offence. The trial must be held in provincial court.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 83 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 83, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 83 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Engaging in prize fight

83. (1) Every one who

(a) engages as a principal in a prize fight,
(b) advises, encourages or promotes a prize fight, or
(c) is present at a prize fight as an aid, second, surgeon, umpire, backer or reporter,

is guilty of an offence punishable on summary conviction.

Definition of “prize fight”

(2) In this section, “prize fight” means an encounter or fight with fists, hands or feet between two persons who have met for that purpose by previous arrangement made by or for them, but does not include

(a) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province if the sport is on the programme of the International Olympic Committee or the International Paralympic Committee and, in the case where the province’s lieutenant governor in council or any other person or body specified by him or her requires it, the contest is held with their permission;
(b) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province if the sport has been designated by the province’s lieutenant governor in council or by any other person or body specified by him or her and, in the case where the lieutenant governor in council or other specified person or body requires it, the contest is held with their permission;
(c) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province with the permission of the province’s lieutenant governor in council or any other person or body specified by him or her; and
(d) a boxing contest or mixed martial arts contest held in a province with the permission or under the authority of an athletic board, commission or similar body established by or under the authority of the province’s legislature for the control of sport within the province.

R.S., 1985, c. C-46, s. 83; R.S., 1985, c. 27 (1st Supp.), s. 186; 2013, c. 19, s. 1.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving prize fights under s. 83 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit either:
    1. engaged "as a principal" in a fight;
    2. advised, encouraged or promoted a fight; or
    3. was present at a fight "as an aid, second, surgeon, umpire, backer or reporter"; and
  5. the fight is a "prize fight".

Interpretation of the Offence

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 83 [prize fight] N/A two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 83 are straight summary conviction offences. The maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 83 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • None
General Sentencing Orders
Order Conviction Description
Non-communication order under s. 743.21 any A discretionary order prohibiting the offender from communicating with named persons while he is in custody.
Restitution Orders any A discretionary Order on application under s. 738, for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Weapons and Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.

History

Engaging in prize fight

83. (1) Every one who

(a) engages as a principal in a prize fight,
(b) advises, encourages or promotes a prize fight, or
(c) is present at a prize fight as an aid, second, surgeon, umpire, backer or reporter,

is guilty of an offence punishable on summary conviction.

Definition of “prize fight”

(2) In this section, “prize fight” means an encounter or fight with fists or hands between two persons who have met for that purpose by previous arrangement made by or for them, but a boxing contest between amateur sportsmen, where the contestants wear boxing gloves of not less than one hundred and forty grams each in mass, or any boxing contest held with the permission or under the authority of an athletic board or commission or similar body established by or under the authority of the legislature of a province for the control of sport within the province, shall be deemed not to be a prize fight.
R.S., 1985, c. C-46, s. 83; R.S., 1985, c. 27 (1st Supp.), s. 186.

CCC

See Also

References

HATE SPEECH AND LIBEL

Defamatory Libel


Defamatory Libel
s. 300, 301, and 302 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 or 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Section 300, 301, and 302 describes three offences.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 300 [publishing defamatory libel known to be false],
s. 301 [publishing defamatory libel]
s. 302 [extortion by libel]
Hybrid Offence(s) OK Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], or 302 [extortion by libel] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 300 [publishing defamatory libel known to be false],
s. 301 [publishing defamatory libel], or
s. 302 [extortion by libel]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], and 302 [extortion by libel] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], and 302 [extortion by libel] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 300 [publishing defamatory libel known to be false],
s. 301 [publishing defamatory libel], and
s. 302 [extortion by libel]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Defamatory Libel

...

Punishment of libel known to be false

300 Every person who publishes a defamatory libel that they know is false is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 300; 2019, c. 25, s. 118.

CCC

Punishment for defamatory libel

301 Every person who publishes a defamatory libel is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 301; 2019, c. 25, s. 118.

CCC

Prior to September 19, 2019, s. 301 read:

Punishment for defamatory libel

301. Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.*
R.S., c. C-34, s. 265.
* found unconstitutional, see below

CCC

Extortion by libel

302 (1) Every one commits an offence who, with intent

(a) to extort money from any person, or
(b) to induce a person to confer on or procure for another person an appointment or office of profit or trust,

publishes or threatens to publish or offers to abstain from publishing or to prevent the publication of a defamatory libel.

Idem

(2) Every one commits an offence who, as the result of the refusal of any person to permit money to be extorted or to confer or procure an appointment or office of profit or trust, publishes or threatens to publish a defamatory libel.

Punishment

(3) Every person who commits an offence under this section is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 302; 2019, c. 25, s. 119.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

There are three offences relating to Defamatory Libel.

Proving publishing defamatory libel known to be false under s. 300 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit publishes materials
  5. the materials amounted to defamatory libel
  6. the culprit knows the materials is false

Proving extortion by libel under s. 302 should include:

  1. identity of the accused as the culprit
  2. the jurisdiction of the incident
  3. the time and date of the incident
  4. the culprit does any one of the prohibited conduct:
    1. publishes,
    2. threatens to publish,
    3. offers to abstain from publishing, or
    4. offers to prevent the publishing
  5. the subject matter of publishing is defamatory libel
  6. the culprit intended to either
    1. extort money from any person or
    2. induce the person to confer on or procure for another person an appointment or office of profit or trust.

Interpretation of the Offence

Mens rea

The offence under s. 300 is a specific intent offence that requires knowledge of falsity and intention to defame.[1]

Constitutionality

The offence of publishing defamatory libel under s. 301 is of no force and effect as it violates s. 2 of the Charter is not savable under s. 1 of the Charter.[2]

Section 300 is constitutional.[3]

  1. R v Stevens (1993), 82 CCC (3d) 97, 1993 CanLII 14706 (MB PC), per Giesbrecht J
    R v Lucas, [1998] 1 SCR 439, 1998 CanLII 815 (SCC), per Cory J
  2. R v Lucas, 1995 CanLII 6024 (SK QB), (1995) 129 Sask R 53 (QB), per Hrbainsky J
    R v Byron Prior, 2008 NLTD 80 (CanLII), per Hoegg J
    R v Gill, 1996 CanLII 8147 (ON SC), 1996 CarswellOnt 1314 (Gen. Div.), per Lally J
  3. Lucas (SCC), supra
    R v Stevens, 1995 CanLII 5594 (MB CA), per Scott CJ

Extortion

See "extortion" as defined in s. 346 (extortion).

Defamatory Libel defined

Definition

298. (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.
Mode of expression
(2) A defamatory libel may be expressed directly or by insinuation or irony

(a) in words legibly marked on any substance; or
(b) by any object signifying a defamatory libel otherwise than by words.

R.S., c. C-34, s. 262.

CCC

Publishing defined

Publishing

299 A person publishes a libel when he

(a) exhibits it in public;
(b) causes it to be read or seen; or
(c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any person other than the person whom it defames.

R.S., 1985, c. C-46, s. 299; 2018, c. 29, s. 31.

CCC

Definition of Newspaper

Definition of newspaper

297 In sections 303 [proprietor and manager responsible], 304 [selling book containing defamatory libel] and 308 [fair report of public meeting], "newspaper" means any paper, magazine or periodical containing public news, intelligence or reports of events, or any remarks or observations thereon, printed for sale and published periodically or in parts or numbers, at intervals not exceeding thirty-one days between the publication of any two such papers, parts or numbers, and any paper, magazine or periodical printed in order to be dispersed and made public, weekly or more often, or at intervals not exceeding thirty-one days, that contains advertisements, exclusively or principally.
R.S., c. C-34, s. 261.
[annotation(s) added]

CCC

Presumption Responsibility

Proprietor of newspaper presumed responsible

303 (1) The proprietor of a newspaper shall be deemed to publish defamatory matter that is inserted and published therein, unless he proves that the defamatory matter was inserted in the newspaper without his knowledge and without negligence on his part.

General authority to manager when negligence

(2) Where the proprietor of a newspaper gives to a person general authority to manage or conduct the newspaper as editor or otherwise, the insertion by that person of defamatory matter in the newspaper shall, for the purposes of subsection (1) [proprietor of newspaper presumed responsible], be deemed not to be negligence on the part of the proprietor unless it is proved that

(a) he intended the general authority to include authority to insert defamatory matter in the newspaper; or
(b) he continued to confer general authority after he knew that it had been exercised by the insertion of defamatory matter in the newspaper.
Selling newspapers

(3) No person shall be deemed to publish a defamatory libel by reason only that he sells a number or part of a newspaper that contains a defamatory libel, unless he knows that the number or part contains defamatory matter or that defamatory matter is habitually contained in the newspaper.
R.S., c. C-34, s. 267.
[annotation(s) added]

CCC

Special Plea for Offence

Section 607(2) states:

607...

In case of libel

(2) An accused who is charged with defamatory libel may plead in accordance with sections 611 [plea of justification] and 612 [when plea of justification is necessary].
...
R.S., 1985, c. C-46, s. 607; R.S., 1985, c. 27 (1st Supp.), s. 126, c. 30 (3rd Supp.), s. 2, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 2000, c. 24, s. 45; 2013, c. 13, s. 9; 2018, c. 11, s. 29.
[annotation(s) added]

CCC

Libel, plea of justification

611 (1) An accused who is charged with publishing a defamatory libel may plead that the defamatory matter published by him was true, and that it was for the public benefit that the matter should have been published in the manner in which and at the time when it was published.

Where more than one sense alleged

(2) A plea that is made under subsection (1) [plea of justification in libel charge] may justify the defamatory matter in any sense in which it is specified in the count, or in the sense that the defamatory matter bears without being specified, or separate pleas justifying the defamatory matter in each sense may be pleaded separately to each count as if two libels had been charged in separate counts.

Plea in writing

(3) A plea that is made under subsection (1) [plea of justification in libel charge] shall be in writing and shall set out the particular facts by reason of which it is alleged to have been for the public good that the matter should have been published.

Reply

(4) The prosecutor may in his reply deny generally the truth of a plea that is made under this section.
R.S., c. C-34, s. 539.
[annotation(s) added]

CCC

Plea of justification necessary

612 (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of a plea of justification under section 611 unless the accused is charged with publishing the libel knowing it to be false, in which case evidence of the truth may be given to negative the allegation that the accused knew that the libel was false.

Not guilty, in addition

(2) The accused may, in addition to a plea that is made under section 611, plead not guilty and the pleas shall be inquired into together.

Effect of plea on punishment

(3) Where a plea of justification is pleaded and the accused is convicted, the court may, in pronouncing sentence, consider whether the guilt of the accused is aggravated or mitigated by the plea.
R.S., c. C-34, s. 540.

CCC

Special Requirements on Counts

Special Provisions respecting Counts
Sufficiency of count charging libel

584 (1) No count for publishing a seditious or defamatory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper or other written matter, is insufficient by reason only that it does not set out the words that are alleged to be libellous or the writing that is alleged to be obscene.

Specifying sense

(2) A count for publishing a libel may charge that the published matter was written in a sense that by innuendo made the publication thereof criminal, and may specify that sense without any introductory assertion to show how the matter was written in that sense.

Proof

(3) It is sufficient, on the trial of a count for publishing a libel, to prove that the matter published was libellous, with or without innuendo.

R.S., 1985, c. C-46, s. 584; 2018, c. 29, s. 64.

CCC

Sufficiency of count relating to fraud

586 No count that alleges false pretences, fraud or any attempt or conspiracy by fraudulent means is insufficient by reason only that it does not set out in detail the nature of the false pretence, fraud or fraudulent means.
R.S., c. C-34, s. 515.

CCC

Special Verdicts

Verdicts in cases of defamatory libel

317 Where, on the trial of an indictment for publishing a defamatory libel, a plea of not guilty is pleaded, the jury that is sworn to try the issue may give a general verdict of guilty or not guilty on the whole matter put in issue on the indictment, and shall not be required or directed by the judge to find the defendant guilty merely on proof of publication by the defendant of the alleged defamatory libel, and of the sense ascribed thereto in the indictment, but the judge may, in his discretion, give a direction or opinion to the jury on the matter in issue as in other criminal proceedings, and the jury may, on the issue, find a special verdict.
R.S., c. C-34, s. 281.

CCC

Defences

Principles and Factors of Sentencing

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 300 [publishing defamatory libel known to be false] N/A 5 years incarceration
s. 302 [extortion by libel] N/A 2 years incarceration

Offences under s. 300, 301 and 302 are straight indictable. The maximum penalty is 5 years incarceration for s. 300 and 302 and 2 years incarceration for s. 301.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 300, 301, 302 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Costs
Costs to successful party in case of libel

751. The person in whose favour judgment is given in proceedings by indictment for defamatory libel is entitled to recover from the opposite party costs in a reasonable amount to be fixed by order of the court.
R.S., 1985, c. C-46, s. 751; 1995, c. 22, s. 6.

CCC

How recovered

751.1 Where costs that are fixed under section 751 are not paid forthwith, the party in whose favour judgment is given may enter judgment for the amount of the costs by filing the order in any civil court of the province in which the trial was held that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the opposite party in the same manner as if it were a judgment rendered against that opposite party in that court in civil proceedings. 1995, c. 22, s. 6.

CCC

Principles

Ranges

see also: Defamatory Libel (Sentencing Cases)

Damages Orders

Miscellaneous Provisions
Costs to successful party in case of libel

751 The person in whose favour judgment is given in proceedings by indictment for defamatory libel is entitled to recover from the opposite party costs in a reasonable amount to be fixed by order of the court.
R.S., 1985, c. C-46, s. 751; 1995, c. 22, s. 6.

CCC

How recovered

751.1 Where costs that are fixed under section 751 are not paid forthwith, the party in whose favour judgment is given may enter judgment for the amount of the costs by filing the order in any civil court of the province in which the trial was held that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the opposite party in the same manner as if it were a judgment rendered against that opposite party in that court in civil proceedings.
1995, c. 22, s. 6.

CCC

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 300 or 302
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 300, 301, and 302 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

References
Related Offences

Public Incitement of Hatred


Public Incitement of Hatred
s. 319 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Judicial Release Only (s. 318)
Release by Officer, Officer-in-charge, or Judge (s. 319)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2, 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to public incitement of hatred are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 318 [advocating genocide] Indictable Offence(s) N/A OK Symbol.png X Mark Symbol.png (under 14 years max)
s. 319(1) [public incitement of hatred] and
s. 319 (2) [wilful promotion of hatred]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 318 [advocating genocide] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Offences under s. 319(1) [public incitement of hatred] and (2) [wilful promotion of hatred] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 318 [advocating genocide]
s. 319 [public incitement of hatred and wilful promotion of hatred]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 318 [advocating genocide], 319(1) and (2) , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 318 and 319 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 318 [advocating genocide] OK Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png
s. 319(1) [public incitement of hatred] and
s. 319 (2) [wilful promotion of hatred]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png

Offences under s. 318 and 319(1) and (2) require the consent of the Attorney General to prosecute.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Advocating genocide

318 (1) Every person who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

Definition of “genocide”

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of “identifiable group”

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12; 2017, c. 13, s. 3; 2019, c. 25, s. 120.

CCC

Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

...

Consent

(6) No proceeding for an offence under subsection (2) [wilful promotion of hatred] shall be instituted without the consent of the Attorney General.

R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving advocating genocide under s. 318 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "advocates or promotes" genocide by "following acts committed with intent to destroy in whole or in part any identifiable group.

Proving Public incitement of hatred under s. 319(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit communicated statements;
  5. the statements were in a "public place";
  6. the statements incdite "hatred against a group;
  7. the group is an "identifiable group";
  8. the incitement is "likely to lead to a breach of the peace"; and
  9. the culprit knew or was wilfully blind to the likelihood.

Proving Public incitement of hatred under s. 319(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit communicates statements;
  5. the communication was not in "in private conversation";
  6. the culprit "wilfully promotes hatred against" a group;
  7. the group is an "identifiable group".

Draft Form of Charges

See also: Draft Form of Charges


Interpretation of the Offence

Promotion of Hatred

Wilful promotion of hatred requires the Crown to prove "beyond a reasonable doubt that the [accused] made some or all of the statements alleged in the information and whether the statements made, as a matter of fact, promoted hatred of the [identifiable group]".[1]

Totality of Circumstances

The judge must consider the "totality of the evidence".[2]

This may include factors such as:[3]

  • terminology and history of the ethnic group
  • Location where the rally was held
  • actions and speech of the rally members
  • the contexts fo the speech or words spoken
  • symbols and banners
  • the "ethnic flavour" of the event
Mens Rea

The minimum mens rea required is wilful blindness and not mere reckelssness.[4]

This should require:[5]

  1. a subjective realization
  2. of the likely result of his actions
  3. deliberately avoid actual knowledge while engaging in or pursuing the activity.
  1. R v Krymowski, [2005] 1 SCR 101, 2005 SCC 7 (CanLII), per Charron J
  2. Krymowski, ibid., at para 19
    R v Ahenakew, 2008 SKCA 4 (CanLII), per Richards JA (3:0), at para 21 (" in considering a charge under s. 319(2), a trial judge must consider not only the words used by the accused, but the circumstances and context in which they were spoken.")
  3. Krymowski, ibid., at para 19
  4. R v Harding, 2001 CanLII 21272 (ON CA), per Weiler JA (3:0)
  5. Harding, ibid., at para 63

Advocating Genocide

The offence under s. 319 only concerns the "most intense forms of dislike".[1]

Causation

The section does not require proof that the communication caused actual hatred or violence.[2]

Wilful Promotion

It is necessary for the Crown to prove that:[3]

  1. the accused's "conscious purpose .. was to promote hatred against [the identifiable group]", or
  2. "they foresaw that the promotion of hatred against that group was certain or morally certain to result from the [prohibited act]" despite doing the act "as a means of achieving" an ancillary purpose
Constitutionality

Section 319(2) was found to violate the freedom of expression under .s 2(b) but was upheld under s. 1.[4]

The reverse onus found in s. 319(3)(a) violates the presumption of innocence under s.11(d) of the Charter but was upheld as a reasonable limitation.[5]

  1. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 SCR 100, per McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ
  2. Mugesera, ibid.
  3. R v Buzzanga and Durocher, 1979 CanLII 1927 (ON CA), per Martin JA
  4. R v Keegstra, [1990] 3 SCR 697, 1990 CanLII 24 (SCC), per Dickson CJ
  5. R v Keegstra, 1996 CanLII 221 (SCC), [1996] 1 SCR 458, per Iacobucci J

Definitions

319
...

Definitions

(7) In this section,
...
"communicating" includes communicating by telephone, broadcasting or other audible or visible means;
...
"identifiable group" has the same meaning as in section 318 [advocating genocide];
...
"public place" includes any place to which the public have access as of right or by invitation, express or implied;
...
"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

CCC

Promotion of Hatred

The promotion of hatred is a question of fact determined by the judge.[1]

"The word ‘promotes’ indicates active support or instigation" as well as "foment or stir up". It "indicates more than simple encouragement or advancement."[2]

To promote hatred, more than "mere encouragement" is required.[3]

It is not necessary to prove that the communication actually caused hatred.[4]

To determine whether the communication promotes hatred the court must "consider the [communication] objectively but with regard for the circumstances in which the [communication] was given, the manner and tone used, and the persons to whom the message was addressed."[5] The standard is different from the "reasonable observer" standard as it takes into account the nature of the audience itself.[6]

  1. R v Krymowski, 2005 SCC 7 (CanLII), [2005] 1 SCR 101, per Charron J, at para 18
  2. R v Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697, per Dickson CJ, at pp. 776-777
  3. Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 SCR 100, per McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ at 100-7
  4. Mugesera, ibid., at paras 100 to 107
  5. Mugesera, ibid., at para 106
  6. Mugesera, ibid., at para 109

Private Conversation

The offence under s. 319(2) excludes any communication that is in "private conversation".

This suggests that an "expression of hatred in a place accessible to the public is not sufficient".[1] There needs to be a subjective mens rea, and as a result a "conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public."[2]

  1. R v Keegstra, 1990 CanLII 24, [1990] 3 SCR 697, per Dickson CJ at 772
  2. Keestra, ibid. at 773 (cited to SCR)

Mens Rea

The mens rea of the offence requires "either an intent to promote hatred or knowledge of the substantial certainty of such".[1]

"Wilful" can include wilful blindness.[2] It most be more than mere recklessness.[3]

  1. ' 'R v Keegstra, 1990 CanLII 24, [1990] 3 SCR 697, per Dickson CJ at 785
    Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (CanLII), [2005] 2 SCR 100, per McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ, at para 104
  2. R v Harding, 2001 CanLII 28036 (ON SC), per Dambrot J and upheld at 2001 CanLII 21272 (ON CA), per Weiler JA
  3. Harding, ibid.

Defences

The statutory defences are set out in s.319 (b), which states:

s. 319...

Defences

(3) No person shall be convicted of an offence under subsection (2) [wilful promotion of hatred]

(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

...
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 318 [advocating genocide] N/A 5 years incarceration
s. 319 [public incitement of hatred and wilful promotion of hatred] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 319 [public incitement of hatred and wilful promotion of hatred] Indictment Election 2 years incarceration

Offences under s. 318 [advocating genocide] are straight indictable. The maximum penalty is 5 years incarceration.

Offences under s. 319 [public incitement of hatred and wilful promotion of hatred] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 318 [advocating genocide] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 319 [public incitement of hatred and wilful promotion of hatred] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Public Incitement of Hatred (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Sentencing Profile

Offence-specific Orders
Order Conviction Description
DNA Orders s. 318
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Forfeiture Orders

Section 319 provides its own manner of forfeiture:

319 (1) ...

Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

Exemption from seizure of communication facilities

(5) Subsections 199(6) [telephones exempt from seizure] and (7) [exception to telephone seizure exemption] apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.
...
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

CCC

History

See Also

Related Offences
References

History of Public Incitement of Hatred

History of s. 318

See also: List of Criminal Code Amendments and Public Incitement of Hatred (Offence)

2017 to present

Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of “genocide”

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of “identifiable group”

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12; 2017, c. 13, s. 3.

CCC

The changes from 2017 are underlined.

2014 to 2017

Advocating genocide

318 (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of genocide

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of identifiable group

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12.

CCC

The changes from 2014 are underlined.

2004 to 2014

Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of “genocide”

(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of “identifiable group”

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1.

CCC

1985 to 2004

Advocating genocide

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of “genocide”

(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of “identifiable group”

(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion or ethnic origin.
R.S., c. 11(1st Supp.), s. 1.

CCC

History of s. 319

2004 to Present

Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Defences

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

Exemption from seizure of communication facilities

(5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.

Consent

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

Definitions

(7) In this section,
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;
“identifiable group” has the same meaning as in section 318;
“public place” includes any place to which the public have access as of right or by invitation, express or implied;
“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.

CCC

1985 to 2004

Public incitement of hatred

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Defences

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

Exemption from seizure of communication facilities

(5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.

Consent

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

Definitions

(7) In this section,
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;
“identifiable group” has the same meaning as in section 318;
“public place” includes any place to which the public have access as of right or by invitation, express or implied;
“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203.

CCC

REGULATORY OFFENCES

Regulatory and Provincial Offences

General Principles

Regulatory offences (or "public welfare" offences) come in three categories:[1]

  1. mens rea offences: offences that require "some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence".
  2. "strict liability" offences: offence with no mens rea where the act creates a prima facie case that requires the accused to show "all reasonable care".
  3. "absolute liability" offences: offences where it is "not open to the accused to exculpate himself by showing that he was free of fault."

Only true criminal matters can be "mens rea offences".[2]

The elements of provincial or regulatory offences, defences and all evidential standards must be proven on a balance of probabilities [3]

In strict liability offences the Crown does not need to prove intent. The defences of due diligence and mistake of fact are valid defences.[4]

In absolute liability offences the Crown does not need to prove intent.The defence of due diligence is not available.[5]

All offences outside of the Criminal Code that are not defined as indictable are deemed to be summary offences.[6]

Similarly, the provisions within the Code that concern indictable offences will relate to indictable offences found in other Acts and provisions in the Code concerning summary offences will apply to summary offences in other Acts unless otherwise stated.[7]

Applicability of the Criminal Code

All federal summary and indictable offences are subject to the procedures of the Criminal Code except where otherwise provided. As stated in s. 34(2) of the Interpretation Act:

34
...

Criminal Code to apply

(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.
...
R.S., c. I-23, s. 27.

CCC

The general approach is that unless the Act creating the offence explicitly excludes the application of the Criminal Code, then it will have application.[8]

  1. R v Kanda, 2008 ONCA 22 (CanLII), per MacPherson JA, at para 17 citing R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
  2. Kanda, ibid., at para 18
  3. Bryant, Lederman, Fuerst "The Law of Evidence in Canada" (Third Edition, LexisNexis Canada Inc. 2009) p. 221, para 5.85
  4. R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J
    R v Chapin, [1979] 2 SCR 121, 1979 CanLII 33 (SCC), per Dickson J
  5. Sault Ste. Marie, supra
  6. see s. 34(1)(b) of the Interpretation Act ("Where an enactment creates an offence, ...the offence is deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence;")
  7. see s. 34(2) of the Interpretation Act ("All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of that Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.")
    see also provincial summary proceedings acts:
    Summary Proceedings Act, RSNS 1989, c 450, s. 7
  8. R v Del Mastro, 2016 ONSC 2071 (CanLII), per Shaughnessy J, at paras 148 and 149 (“law is well settled that, ...the provisions of the Criminal Code will apply to offences created under another Act of Parliament, unless Parliament has clearly expressed an intention to the contrary…The general rule is that the Criminal Code is only ousted, if the statute in issue contains a ‘complete code.’ However, the fact that a statute may be silent, or that the statute has some provision touching upon the same subject matter as a provision in the Criminal Code, is not sufficient to manifest an intention on the part of Parliament to exclude the Criminal Code”)
    R v Dalum, 2012 BCSC 210 (CanLII), per Russell J

Inspections and Investigations

An inspection is the same as a search within the meaning of s. 8 of the Charter, however, given that it is non-criminal, no warrant is needed so long as it is authorized by a statute.[1]

An inspection will turn into a full investigation once "the predominant purpose" of an officer's inquiry "is the determination of penal liability".[2] It is this moment where the "adversarial relationship crystallizes".[3] Once an investigation has begun, the inspecting agent must then comply with all procedural requirements for search and seizure.[4]

  1. Comité paritaire de l'industrie de la chemise v Potash; Comité paritaire de l'industrie de la chemise v Sélection Milton, [1994] 2 SCR 406, 1994 CanLII 92 (SCC), per La Forest J
  2. R v Jarvis, 2002 SCC 73 (CanLII), (2002), 219 DLR (4th) 233 (SCC) , per Iacobucci and Major JJ
    R v Ling, 2002 SCC 74 (CanLII), (2002), 169 CCC (3d) 46 (SCC), per Iacobucci and Major JJ
  3. R v Lempen, 2008 NBCA 86 (CanLII), per Bell JA
  4. R v Canada Brick Ltd., 2005 CanLII 24925 (ON SC), per Hill J, at para 11
    R v D'Amour, 2002 CanLII 45015 (ON CA), per Doherty JA

Determining Category of Offence

There is a presumption that regulatory offences are "strict liability".[1]

The judge should consider factors to determine the type of offence:[2]

  1. overall regulatory pattern and context of the section,
  2. the subject matter or type of conduct regulated;
  3. the purpose of the act;
  4. the community interest in its regulation
  5. the nature of the penalty; and
  6. the precision of the language used

Offences that use language suggestive of a mens rea, such as “wilfully”, “with intent”, “knowingly”, or “intentionally”, will likely be "mens rea offences".[3] However, wording such as "cause" or "permit" will more typically be used in strict liability offences.[4]

The greater the penalty to more likely it will be a "mens rea offence".[5]


Even where the penalty is "severe", the offence may still be strict liability where the public safety is not compromised by the conduct and the wording of the offence does not indicate guilt as require proof.[6]

  1. R v Kanda, 2008 ONCA 22 (CanLII), per MacPherson JA, at para 19
  2. Kanda, ibid., at para 19
    see also R v Hickey (1976), 1976 CanLII 663 (ON SC), 29 CCC (2d) 23 (Ont. Div. C.T.), per Galligan J rev'd 30 CCC (2d) 416, 70 DLR (3d) 689, 1976 CanLII 653 (ON CA), per Jessup JA
    R v Cooke, 2001 CanLII 17868 (MB PC), per Joyal J citing Hickey, supra
  3. R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J, at p. 374
    R v Gopher, 2017 SKQB 50 (CanLII), per RS Smith J, at para 31
  4. Sault Ste Marie, supra, at p. 1328
    Gopher, supra, at para 32
  5. Sault Ste. Marie, supra, at p. 374
  6. R v Blackburn, 1980 CanLII 455 (BC CA), per McFarlane JA

Strict Liability Offences

Offences of "public welfare" are prima facie presumed to be strict liability offences.[1] This includes offences contained in regulatory statutes and are prima facie strict liability offences.[2]

An Ontario seatbelt law under provincial road Act was not found to be strict liability.[3]

  1. Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII), [2006] 1 SCR 420 [Lévis], per LeBel J, at para 16
  2. Cook v Saskatchewan (Attorney General) (1983), 1983 CanLII 2012 (SK QB), 23 Sask R 236 (QB), per Halvorson J
  3. e.g. R v Kanda, 2008 ONCA 22 (CanLII), per MacPherson JA

Absolute Liability Offences

Absolute liability offences are somewhat rare and exceptional.[1] There must be "clear proof of legislative intent" before an offence will be considered one of absolute liability.[2]

The classification of the offence as absolute liability will depend on the statutory language including:[3]

  • the regulatory pattern adopted by the Legislature,
  • the subject matter of the legislation,
  • the importance of the penalty, and
  • the precision of the language used will be primary considerations.
Constitutionality

Absolute liability Offences that are punishable by a period of imprisonment violate s. 7 of the Charter and are not permissible.[4] Such offences with penal consequences should be treated as strict liability in order to comply with the Charter.[5]

  1. Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII), [2006] 1 SCR 420 [Lévis], per LeBel J, at para 17
  2. Levis, ibid., at para 17
  3. Levis, ibid., at para 17
  4. R v Cancoil Thermal Corp. and Parkinson, 1986 CanLII 154 (ONCA), per Lacourciere JA
  5. Canoil, ibid.

See Also

Regulatory Offences

General Principles

Sentencing of corporate offenders for regulatory offences should consider:

  1. the conduct, circumstances and consequences of the offence,
  2. the terms and aims of the relevant enactment or regulation, considered in the larger context of comparable regulation and legitimate corporate functioning in the relevant areas, and
  3. the participation, character and attitude of the corporation offender, considered in the larger context of corporations engaged in relevant industrial or business activity,

all with a view of identifying the aggravating and mitigating factors. [1]

For the most part, the enforcement of the violated regulations can be achieved by the imposition of fines.[2]

The primary objective of the fine is deterrence.[3]

The amount of a fine will be determined based on factors including:[4]

  • the size of the company involved,
  • the scope of the economic activity in issue,
  • the extent of actual and potential harm to the public,
  • the maximum penalty prescribed by the statute,
  • the need to enforce regulatory standards by deterrence.
  1. R v General Scrap Iron & Metals Ltd., 2003 ABQB 22 (CanLII), per Watson J, at para 35
  2. R v Cotton Felts Ltd., (1982), 2 CCC (3d) 287 (Ont. C.A.), 1982 CanLII 3695 (ON CA), per Blair JA, at pp. 294-295 ("To a very large extent the enforcement of [regulatory] statutes is achieved by fines imposed on offending corporations.")
  3. see discussion R v Canadian Consoli, 2013 ABPC 120 (CanLII), per Walter J, at para 10
  4. Cotton Felts Ltd., supra

See Also

Regulatory Motor Vehicle Offences

Careless Driving

All provinces have some form of motor vehicle offence relating to careless driving.[1]

Onus and Standard of Proof

The standard of proof is "proof beyond a reasonable doubt".[2]

Proving careless driving will usually require:

  1. the accused drove in a manner prohibited by the section
    1. the accused drove without "due care and attention"
  1. ON: s. 130 (careless driving) Highway Traffic Act
  2. R v Beauchamp, [1953] OR 422-434 (ONCA), 1952 CanLII 60 (ON CA), per MacKay JA

See Also

INCOHATE OFFENCES

Attempts and Accessories After the Fact


Attempts and Accessories After the Fact
s. 463 of the Crim. Code
Election / Plea
Crown Election varies
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction varies
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. varies
Minimum varies
Maximum varies
Indictable Dispositions
Avail. Disp. varies
Minimum varies
Maximum varies
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to attempts and accessories after the fact are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings

Offences under s. 463 will be summary conviction, hybrid, or straight indictable depending on the pleadings of the main offence that is the subject of the attempt or accessory. The pleadings available for the main offence will apply.

Accessory after the fact to murder is a straight indictable offence. The defence has an election of Court under s. 536.

Release

Offences under s. 463 will be summary conviction, hybrid, or straight indictable depending on the pleadings of the main offence that is the subject of the attempt or accessory. The release options of the main offence will apply.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offences Designations

The designations associated with s. 463 offences will match the main offence making up the subject matter of the 463 offence.

Offence Wording

Attempts, accessories

463. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who attempt to commit or are accessories after the fact to the commission of offences:

(a) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years;
(b) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable;
(c) every one who attempts to commit or is an accessory after the fact to the commission of an offence punishable on summary conviction is guilty of an offence punishable on summary conviction; and
(d) every one who attempts to commit or is an accessory after the fact to the commission of an offence for which the offender may be prosecuted by indictment or for which he is punishable on summary conviction
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding a term that is one-half of the longest term to which a person who is guilty of that offence is liable, or
(ii) is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 463; R.S., 1985, c. 27 (1st Supp.), s. 59; 1998, c. 35, s. 120.

CCC

Murder

Accessory after fact to murder

240. Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life.
R.S., c. C-34, s. 223.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XX of the Criminal Code.

Proof of the Offence

Proving Attempt under s. 463 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. attempted to commit the predicate offence.
    1. act that is more than mere preparation
    2. intent to commit the offence

Proving accessory after the fact under s. 463 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit knew a crime had been committed
  5. the culprit intended to aid the principal or a party to the offence in escaping
  6. the culprit did an act that enabled the principle to escape (arrest, trial, punishment)

Proving Accessory After the Fact to Murder under s. 240 should include:

  1. the elements of accessory under s. 463:
  2. the offence that had been committed was murder;
  1. R v Young (1950) 10 C.R. 142, 98 CCC 195 (Que.CA), 1950 CanLII 380 (QC CA), per St Jaques J
    R v Camponi, 1993 CanLII 1163 (BCCA), per Wood J, at para 10

Interpretation

Stay of Proceedings Against Principal Does Not Provide Remedy

A charge of accessory after-the-fact to murder still will apply even aware of the charges against the principle of been stayed.[1]

  1. R v Camponi, 1993 CanLII 1163 (BC CA), per Wood JA

Attempts

Accessory

Sentencing Principles and Ranges for Attempts

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties

The offence may be hybrid, summary conviction or straight indictable, depending on the type of index offence. The maximum penalty varies depending on the penalty of the index offence. Where the index offence has a maximum penalty of life, the maximum penalty is 14 years incarceration under s. 463(a). Where the index offence has a maximum penalty of 14 years or less, the maximum penalty is half the duration of the maximum penalty of the index offence under s. 463(b). Where the index offence is punishable on summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 463(c). Where the index offence is hybrid under s.463(d), the maximum penalty is half the duration of the maximum penalty of the index offence, if prosecuted by indictment, or two years less a day jail and/or a $5,000 fine (from Sept 19, 2019), if prosecuted by summary conviction.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Available dispositions will match those of the index offence, except that offences with index offences punishable with maximum penalty of 14 years will not have a prohibition on discharges or conditional sentences.

Sentencing Principles and Ranges for Accessory

Maximum Penalties

The offence may be hybrid, summary conviction or straight indictable, depending on the type of index offence. The maximum penalty varies depending on the penalty of the index offence. Where the index offence has a maximum penalty of life, the maximum penalty is 14 years incarceration under s. 463(a). Where the index offence has a maximum penalty of 14 years or less, the maximum penalty is half the duration of the maximum penalty of the index offence under s. 463(b). Where the index offence is punishable on summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 463(c). Where the index offence is hybrid under s.463(d), the maximum penalty is half the duration of the maximum penalty of the index offence, if prosecuted by indictment, or two years less a day jail and/or a $5,000 fine (from Sept 19, 2019), if prosecuted by summary conviction.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Available dispositions will match those of the index offence, except that offences with index offences punishable with maximum penalty of 14 years will not have a prohibition on discharges or conditional sentences.

Principles

The offence of accessory after the fact is a serious offence against the administration of justice. It contributes to any number of serious offences to avoid detection as well as the investigators ability to clear the innocent.[1]

A sentence of incarceration is considered the norm.[2]

  1. R v Wisdom, 1992 CarswellOnt 1757 (Gen.Div.)(*no CanLII links) , per Watt J, at paras 27 and 28 ("Accessoryship after the fact frustrates the legitimate investigation of crime. It is as much a part of such investigation to clear the innocent, as it is to convict the guilty. To the extent that accessories deflect the investigation and investigators from their proper or true course, the attendant risks are obvious.")
  2. Wisdom, ibid.

Factors

Factors include:[1]

  • the nature, extent and duration of the accessory’s involvement;
  • the age and experience of the accessory;
  • the nature, extent and duration of the relationship, if any between the accessory and the relevant principal;
  • the presence or absence of any coercion of a threat to the accessory or others to obtain the accessory’s participation
  • the nature of the accessory’s assistance; and
  • the antecedents, present status and realistic prospects of the accessory.

Where the offender has knowledge of the murder even before it was going to happen is an aggravating factor.[2] Also, where the offender had a larger role in the offence after the murder, such as in the disposal of a body, will be aggravating.[3]

Where the offender was motivated by fear from the principle to the murder will mitigate the level of moral culpability.[4]

  1. R v Gilbert, 2006 NSPC 58 (CanLII), per MacDougall J
    R v Wisdom, [1992] OJ No 3110 (Ont. C. J. – Gen. Div.)(*no CanLII links)
  2. R v Steadman, 2008 BCSC 1613 (CanLII), [2008] BCJ 2284 (SC), per Barrow J, at para 51
  3. Steadman, ibid., at para 51
  4. Steadman, ibid., at para 51
    Turpin, supra
    Lowe, supra
    Ropchan, supra

Ranges

In British Columbia, the range was set at between 18 months to 5 years.[1]

In the Northwest Territories, the range for accessory has been put at between 2 to 7 years in the context of a homicide. [2]

  1. R v Steadman, 2008 BCSC 1613 (CanLII), [2008] BCJ 2284 (SC), per Barrow J, at para 53
  2. R v Tutin, 2004 NWTSC 20 (CanLII), per Vertes J, at para 2 ("I find that the range of sentence for this type of offence is two to seven years")

Ancillary Sentencing Orders for Accessory

Offence-specific Orders
Order Conviction Description
DNA Orders s. 240
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Pre-Trial and Trial Issues