Lottery Offences (Offence): Difference between revisions
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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.<ref> | 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.<ref> | ||
{{CanLIIRPC|Dream Home Contests (Edmonton) Limited v The Queen; Hodges v The Queen|22vqf|1960 CanLII 61 (SCC)|[1960] SCR 414, 126 CCC 241}}{{perSCC|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")<br> | {{CanLIIRPC|Dream Home Contests (Edmonton) Limited v The Queen; Hodges v The Queen|22vqf|1960 CanLII 61 (SCC)|[1960] SCR 414, 126 CCC 241}}{{perSCC|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")<br> | ||
{{ | {{CanLIIRP|Canus of North America Ltd|g7blr|1964 CanLII 368 (SK CA)|1 CCC 91}}{{perSKCA|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.") | ||
{{supra1|MacKenzie}}{{atp|531}}<br> | {{supra1|MacKenzie}}{{atp|531}}<br> | ||
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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.<ref> | 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.<ref> | ||
{{supra1|Golden Canada Products Ltd}} at page 200<br> | {{supra1|Golden Canada Products Ltd}} at page 200<br> | ||
{{ | {{CanLIIRP|Friskie|1c3mt|2001 CanLII 866 (SK PC)|15 CPR (4th) 512}}{{perSKPC|Snell J}}{{atL|1c3mt|8}} | ||
</ref> | </ref> | ||
Revision as of 08:49, 24 June 2021
| 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 (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 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 |
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| s. 206(1) [offence in relation to lotteries and games of chance] or 209 [cheating at play] |  |
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| s. 206(4) [buys, takes or receives a lot, ticket in lottery scheme], 207 [unlawful participation in lottery], and 207.1 [unlawful participation in lottery] | |
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(summary offence)
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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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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 | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 206(1), 206(4), 207, 207.1 or 209 | |
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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]
207.
[omitted (1) and (2)]
- 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.
[omitted (4), (4.01), (4.1) and (5)]
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.
207.1
[omitted (1) and (2)]
- 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.
[omitted (4)]
1999, c. 5, s. 7.
- 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
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
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Proving Offence in relation to lotteries and games of chance under s. 206 should include:
Proving lottery scheme conduct under s. 207 should include:
Proving Cheating at play under s. 207.1 should include:
Proving Cheating at play under s. 209 should include:
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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]
- ↑
R v MacKenzie, 1982 CanLII 2090 (ON CA), 66 CCC (2d) 528, per Cory JA, at p. 531
- ↑
MacKenzie, ibid., at p. 531
- ↑
MacKenzie, ibid., at p. 531
- ↑ R v Golden Canada Products, 1973 ALTASCAD 124 (CanLII), [1974] 1 WWR 593, 15 CCC (2d) 1, per McDermid JA, at 8, aff'd (1975), 31 CRNS 396 (SCC), 1975 CanLII 1204 (SCC), per Laskin CJ
- ↑
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 CanLII 368 (SK CA), 1 CCC 91, 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
- ↑
Golden Canada Products Ltd, supra at page 200
R v Friskie, 2001 CanLII 866 (SK PC), 15 CPR (4th) 512, per Snell J, at para 8
Exemptions for Lottery Offences
Participation of Third Parties
- 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
| Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
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| s. 206(1) [offence in relation to lotteries and games of chance] or 209 [cheating at play] | ||||
| 206(4) [buys, takes or receives a lot, ticket in lottery scheme], 207 [unlawful participation in lottery], and 207.1 [unlawful participation in lottery] |
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
- 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 2 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 2 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 |
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| s. 207(3)(a) and 207.1(3)(a) | any | |
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| s. 206, 207(3)(b) and 207.1(3)(b) | N/A | |
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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
- 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| 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. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 206, 207, 207.1 or 209 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended 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
- Level Zero
- Criminal Law
- Offences
- Offences Punishable on Summary Conviction
- Offences with Maximum Penalty of 2 Years Less a Day
- 1999, c. 28
- 1985, c. C-46
- 2019, c. 25
- 1985, c. 27 (1st Supp.)
- 1999, c. 5
- 2014, c. 39
- 2018, c. 29
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of 2 Years
- Straight Indictable Offences
- Hybrid Offences
- Straight Summary Offences
- Offences with No Mandatory Minimum