Gambling Offences (Offence)
| This page was last substantively updated or reviewed January 2022. (Rev. # 96386) |
| Gambling Offences | |
|---|---|
| s. 201 and 202 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)) |
| 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. |
|
| 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). There is also a related offence for breach of gambling rules or regulations (204).
- 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] |
 |
|
|
|
|
| s. 201(2) [person found in or owner permitting use] | |
|
|
 |
(summary offence)
|
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.
When charged under s. 201(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.
- Fingerprints and Photos
A peace officer who charges a person under s. 201(1), 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 | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 201(1) [keeping gaming or betting house], s. 202(1)(e) |
|
|
|
|
(under 10 years max)
|
| s. 201(2) [person found in or owner permitting use] s. 202(1)(a) to (d), (f) to (g) [betting, book-making, etc.] s. 203 [placing bets on behalf of others] and s. 204 [contravention of gambling rules] |
|
|
|
|
(under 10 years max)
|
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.
- 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.
- 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.
204
[omitted (1), (1.1), (2), (3), (4), (5), (6), (7), (8), (8.1), (9) and (9.1)]
- 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.
[omitted (11)]
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.
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 |
| 202(1)(a) | "..., did use or allow to be used, a place under his or her control, to wit: [location, including address], for the purpose of recording or registering bets or selling a pool, contrary to section 202(1)(a) of the Criminal Code." | |
| 202(1)(b) | "..., contrary to section 202(1)(b) of the Criminal Code." | |
| 202(1)(c) | "..., contrary to section 202(1)(c) of the Criminal Code." | |
| 202(1)(d) | "..., contrary to section 202(1)(d) of the Criminal Code." | |
| 202(1)(e) | "..., contrary to section 202(1)(e) of the Criminal Code." | |
| 203(a) | "..., contrary to section 203 of the Criminal Code. | |
| 206(1)(a) | "..., contrary to section 206(1)(a) of the Criminal Code." | |
| 209 | cheating | "..., did, with the intent to defraud [name1], cheat while playing the game [name of game], in holding stakes for the game [name of game], or in betting on [name of game] contrary to section 209 of the Criminal Code." |
Proof of the Offences
|
Proving Keeping gaming or betting house under s. 201(1) should include:
Proving Person found in or owner permitting use under s. 201(2) should include:
Proving Betting, pool-selling, book-making, etc under s. 202(1) should include:
Proving Placing bets on behalf of others under s. 203 should include:
|
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]
- "that the [accused] kept devices in a place under her control" (actus reus);
- "that these devices were gambling devices" (actus reus); and
- "that the [accused] knew that the devices were gambling devices and knowingly kept them".
An honest and reasonable belief that the illegal devices were legal is not a defence.[5]
- 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.[6]
- Disseminate Betting Information (202(1)(f))
The source of the information making up an offence under s. 202(1)(f) does not have to be from an illegal operation.[7]
- Constitutionality
Section 199 does not violate the Charter.[8]
The provision of s. 202(1)(b) is intra vires the authority of Parliament criminal law making powers.[9]
- ↑ R v Michael, 1974 ALTASCAD 48 (CanLII), 5 WWR 749, 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.")
- ↑ R v Decome, 1991 CanLII 3847 (QC CA), 63 CCC (3d) 460
- ↑ R v World Media Brokers Inc, 1998 CanLII 27760 (ON CJ), 132 CCC (3d) 180, 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.")
- ↑ R v Kent, 1994 CanLII 62 (SCC), [1994] 3 SCR 133
- ↑ R v Potter, 1978 CanLII 2532 (PE SCTD)
- ↑ 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.")
- ↑ R v Ede, 1993 CanLII 14672 (ON CA), 84 CCC (3d) 447, per curiam
- ↑ R v Huynh, 2009 ABQB 637 (CanLII), per Hawco J
- ↑ R v J.B.L. Amusements Ltd., 1998 CanLII 18037 (NL CA), 123 CCC (3d) 419, 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 (ss. 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 bawdy-house" [Repealed, 2019, c. 25, s. 69.1]
"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)
"prostitute" [Repealed, 2014, c. 25, s. 12]
"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]
Exemptions
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
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. 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 | |
|
|
|
|
|
|
| s. 202 and 203 With prior convictions |
N/A | |
|
|
|
|
|
|
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]
- ↑ R v Colosimo, 2011 MBPC 70 (CanLII), 271 Man R (2d) 198, per Pollack J
Ancillary Sentencing 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. |
Record Suspensions and Pardons
Convictions under s. 201 to 203 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".
History
See Also
- References