July 17, 1943

LIB

Thomas Reid

Liberal

Mr. REID:

I think these amendments might very well be left over for a time at least, although some of the amendments proposed may seem to have considerable merit. I am glad that the minister is open to suggestions, but the amendments proposed do not in my opinion take care entirely of the situation. I have in mind that in British Columbia there is published the B. C. Breeders' Gazette and Racing Manual, and under this amendment a man might be charged simply because he had this publication in his possession as betting or aiding betting material. I suggest that delayed consideration be given to the amendments.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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IND

Alan Webster Neill

Independent

Mr. NEILL:

I must agree with the hon. member for York-Sunbury that the amendment proposed by the minister does not do much to relieve the objections. I look at it in this way. It says "used or intended", and there is a comma there. That settles that. That brings within the act the person who uses or intends to use. Then if it had gone on to say "and equipped" it would have been different, but it says "or". A man "intending to use," can be convicted on those words, even though not "equipped". That is a separate offence so to speak. I do not see a great deal of improvement in it.

The hon. member for Lake Centre suggested that the minister had left it for the house to decide whether it wanted gambling or otherwise, but that was not my view. I think the minister was doing a very fine thing when he proposed to take away the support of the government from the measure and leave it to be decided by those who are the representatives of the people. Certainly the question as it presents itself to my mind is not: Do we want betting? The question is: Do we want a worse evil created as regards the liberty of the subject than would be created by doing away with this section altogether? As the minister has been kind enough to put it up to the house, I would move, in order to crystallize the situation, that section 7 be struck out.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Douglas King Hazen

National Government

Mr. HAZEN:

In my opinion the amendment proposed to be made by section 7 to section 227 of the criminal code is most objectionable, and I think the amendment which the Minister of Justice moved this morning, if I understood it correctly, is almost equally objectionable. This amendment is a departure from one of the fundamental principles of our criminal law-that before a person can be charged with a crime he must have committed an overt act or must have failed to do something which the law says he shall do. This amendment makes it a crime for a person to have a wrongful intent. It is a retrograde step, an encroachment on the principles of British justice. If this amendment becomes law it places in jeopardy the freedom and security of the citizens of this country. It seems to me that if there is one duty more than another that members of parliament owe to their constituents, it is to be zealous in guarding their freedom and security and maintaining the fundamental principles of British justice.

In the fourteenth century the opinion was held by some legal authorities in England that the intention to commit a crime constituted an offence. In the sixteenth century such an objectionable doctrine was overruled, and the principle was established that the intention to commit a wrong was not in itself a crime. The reason for this change in the law, I think, is obvious. It was made, I believe, because of the extreme difficulty, if not impossibility, of proving what was going on in another person's mind at a particular time, and because of the fact that even if that were proved, it was impossible to find that that person might not on further consideration change his mind and commit no offence. This amendment, if it becomes law, is a step back towards the middle ages.

In Holdsworth's History of English Law, volume 8, page 443, I read the following:

It was well settled in the 16th century (in spite of the opinion to the contrary held in the 14th century) that a mere intention to commit a crime, unaccompanied by any overt act, entailed no criminal liability. "The imagination of the mind to do wrong" it was held in Hales v. Petit (1563) Plowden, page 259, without an act done, is not punishable in our law, neither is the resolution to do that wrong, which he does not, punishable but the doing of the act is the only point which the law regards; for until the act is done it cannot be an offence to the world, and when the act is done it is punishable.

That case quoted by Holdsworth was decided in the reign of Queen Elizabeth.

I turn now to a judgment delivered in the twentieth century, to a judgment of Mr. Justice Riddell, of the Supreme Court of

Criminal Code-Betting

Ontario, in the case of Rex v. McCarthy, decided a few years ago, and I read these words:

. . . an intent is not enough for as Chief Justice Bryan said in Year Book 17 Edward IY, 2 pi. 2-

I might say that this case was decided before the reign of Queen Elizabeth:

"The devil himself cannot try the thought of a man".

And Judge Riddell adds:

It would he hopeless to look for greater subtility in the courts. Intending to commit a crime is not the same as attempting to commit it.

Our criminal code provides that a person is liable to a year's imprisonment who is found guilty of keeping any disorderly house; that is to say any bawdy house, common gaming house, or common betting house. A common betting house is defined by section 227, which is the section now proposed to be amended, as:

A house, a room or place (d) opened, kept or used for the purpose of facilitating or encouraging or assisting in the making of bets,

And so forth. That is a good definition. That is a real definition of what a common betting house should be. But this amendment would change that definition. It would define a common betting house as a house, office, room or place used-and here are the words to which I wish to call attention-"or intended, or likely to be used, for that purpose". The definition goes altogether too far; it makes an intention a crime.

I would ask hon. members what they would think if a person in their constituency was summoned to court charged that between a certain day and a certain day in a certain month he did unlawfully intend to keep a disorderly house, to wit, a common betting house at a certain named place for the purpose of betting contrary to section 229 of the Criminal Code of Canada. A man is charged with the intention of doing something, charged with an idea he has in his mind and which he may subsequently change. The whole thing is absolutely wrong and is absolutely out of place in this age.

What a man may intend to do and what he actually does are, very often, two entirely different things. Second thoughts are often best, yet under this amendment it is an offence to intend to do an act even though that intention is not carried out and the act is never done. It seems to me that this is going entirely too far, and that you cannot justify upon any principle a law of this kind.

There are various classes of crimes. Some are more serious than others. Betting is not

one of our more serious crimes; in fact some corporations are permitted under certain statutes, restricted as to time and place, to operate pari-mutuel systems of betting. Why should it be necessary to make such a drastic alteration, for a minor crime, in the principles of our criminal law? It seems to me that that is a question which is hard to answer. A precedent should not be established. We are told, in the explanatory notes to this bill, page 2, that under the code as at present worded-

. . . the crown, in order to obtain a conviction, must prove that the house, office, room or place alleged to be a common betting house was actually opened, kept or used for the purpose ... of facilitating or encouraging or assisting in the making of bets. . . .

I submit that that is exactly what should be proved if justice is to prevail in this country. A man is presumed to be innocent until he is proved guilty, and it seems to me that the onus should be on the crown to prove that the house, room or place alleged to be a common betting house was in fact used for that purpose by the accused, before it can obtain a conviction for the offence.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

That is the law to-day.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Douglas King Hazen

National Government

Mr. HAZEN:

That is the law to-day. That is the law they propose to change by this amendment. This explanatory note goes on to say that:

Under the amendment it will be sufficient if the crown proves that the house, office, room or place was used or intended or likely to be used for such purposes.

* This clearly shows that the amendment proposes to make an intention an offence, and I say we should have none of it.

AVe are told that the suggested amendment was submitted by the attorney general of Ontario and concurred in by the attorney general of British Columbia, and I think the minister said to-day that a third attorney general had suggested this amendment, although the name of the province he represents does not appear in the notes to the bill. But I would say this, that there are some crown prosecutors who take an exaggerated view of offences which, when all is said and done, are not very serious offences. They take an exaggerated view of them on some occasions when they fail to secure convictions. Some crown prosecutors are over-zealous, and look for easy ways and short-cuts to obtain convictions when they believe offences have been committed. To change a fundamental principle of our criminal law to make it easy to obtain convictions against citizens of this

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country, who may be innocent, is a step in the wrong direction; it is a departure from British principles of justice and a step towards a new despotism.

Under our criminal law a person must do an overt act before he can be charged with a criminal offence. That principle is based on reason and common sense. It has stood the test of time. It should not be encroached upon to enable over-zealous crown prosecutors to obtain convictions for a crime which cannot be regarded as a very serious one. There may be parts of Canada in which a good deal of betting is going on at the present time, but to take a step of this kind to put an end to it is, it seems to me, introducing a cure which is and will prove to be much worse than the disease. So far as I am able to, I protest strongly against the proposed amendment, and if I am in order I will second the amendment to the amendment made by the hon. member for Comox-Alberni.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Howard Charles Green

National Government

Mr. GREEN:

I rise to support wholeheartedly the section as it has now been submitted by the Minister of Justice. I praise him for bringing in this amendment to the code and also for making the improvement which has been made to-day. I suggest that he will not go very far wrong if he listens to the points made this morning by my colleague the hon. member for Lake Centre, who is one of the outstanding defence counsel of Canada. I was very much impressed by his submission this morning, and when he said that the amendment as it now reads is a reasonable amendment I think that may be taken as gospel truth.

Some suggestion has been made that this is [DOT] only a matter of a minor offence, that there is nothing much to it, that it is only a little bit of betting on the side. Well, actually in British Columbia, and I believe in Ontario, this is a big-money racket, having, I believe, widespread connections with the underworld; and the betting is not on local horse races but on races held in the United States.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

The Kentucky derby.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Howard Charles Green

National Government

Mr. GREEN:

It is on races of all kinds conducted in the states. It is estimated that from the city of Vancouver daily there has been wagered a sum of S30,000 under this scheme. The bookies who are in this business are not inoffensive, ignorant, innocent people; they are mighty keen business men who have figured out a way to defeat the law. That is the situation, and surely the parliament of Canada can face it and can put through an adequate remedy. I know that in our province the attorney general has been trying for

several years to get an amendment put through to this effect. As hon. members know, he is Hon. R. L. Maitland, KjC., who also is one of the leading defence counsel of Canada and is thoroughly acquainted with the criminal code. He has been convinced for years that this amendment is needed. He is convinced that if such an amendment is not made these bookies will run wild.

That is the feeling in our province. I have here a press clipping of May 28, the day after the Minister of Justice introduced this bill, in which we find the following statement by the chief of police:

"Bookmakers have had their innings in Vancouver," says police chief Donald Mackay. "They're on the defensive now. It's been a long, hard struggle to curtail their activities, but if the proposed amendments to the criminal code are passed the bookies will be forced out of business." -

The next day there appeared in the Vancouver Daily Province, one of the leading newspapers of Canada, an editorial under the title, "Teeth in the Law", the last two paragraphs of which read:

There is no doubt about the evil or the difficulty. Bookmaking on horse-racing and some other popular forms of sport has literally found its way into innumerable holes and corners from which the ordinary processes of the law have been increasingly impotent to dislodge it.

It is bad enough when it is honest if illegal bookmaking within the gambler's code-bad in its demoralization of the lives of its addicts. It is worse when it becomes, as all experience shows, that it increasingly tends to become, a conscienceless racket. It is time long past due that the laws against the exploitation of gambling were provided with effective teeth.

It is all right for us to argue about what happened in Queen Elizabeth's time.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Douglas King Hazen

National Government

Mr. HAZEN:

I did not argue about what

happened in Queen Elizabeth's time.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Howard Charles Green

National Government

Mr. GREEN:

Then I withdraw that. It is all right for us to look back over the centuries and try to maintain the majesty of the law, British justice, and so on and so forth; but here is a condition, an evil that must be met, and it cannot be met by the provinces but only by the dominion parliament. I suggest that the law-abiding public of Canada are entitled to receive this protection from parliament at this time and I urge on the minister that he carry out his original intention and put through this amendment.

Mr. KIN'LEY: The idea expressed in this legislation seems to violate my sense of fair play. I am a layman, but I have had experience with amendments to the criminal law, both in the provincial legislature and here, and while I realize that the minister

Criminal Code-Betting

is dealing with organized crime to a degree, and therefore must use drastic means in coping with it, I suggest however that when, instead of throwing out your net to catch criminals, you throw that net over a citizen and say to him, "Get out of it if you can," that is hardly British fair play. The thing that bothers me about this betting legislation is that the principle involved is that it is a criminal offence to take a chance. But everybody in the country does it. I cannot find many people in my section of the country who do not in some way orother take a chance or who are not in some way entertained by getting close to theborder of this betting law. In order tosatisfy public opinion we invoke the church and say that if the church does it it is

permissible, or if the mayor of the town allows it you can have a bingo game or any of the other games usually played at fairs and exhibitions, which are therefore gambling places.

The difficulty about these provisions is that they affect all the people of the country, and when you make a law of this kind so drastic that the natural frailties of the people in a community are apt to be made crimes, that is not a good1 thing. It seems to me the minister might take into consideration the fact that he is dealing with a subject that has a great many applications. Even persons who play bridge may be affected; numberless people have bridge games where they give prizes and gamble a little. When you bring all these people into the net of criminal prosecution, I suggest that you are doing something about which we can hardly be enthusiastic. I trust the minister will consider this matter carefully.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Grote Stirling

National Government

Mr. STIRLING:

The minister has told us that when this amendment saw the light of day he received many representations from the public. We know the opinions expressed of three of the attorneys general, and I should like to know whether he has received representations from the other six. If so, have any of them opposed this suggestion?

Mr. ST. LAURENT: The only other attorney general who has made comment to the department in respect of these classes since the bill was published is the new attorney general for Ontario, who said that in his view it would be desirable to postpone this until at least another session so that it might have further consideration. He was, I think, the only other attorney general who communicated with the department about these sections since the bill becam'e public.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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LIB

Vincent-Joseph Pottier

Liberal

Mr. POTTIER:

The member for Lake

Centre indicated that there was no new offence, that the offence was not enlarged, but that it was a matter of procedure. Are the words "likely to be used" left in the section?

Mr. ST. LAURENT: Yes.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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LIB

Vincent-Joseph Pottier

Liberal

Mr. POTTIER:

I submit that we are enlarging the offence. The original section used the words " opened, kept or used." This amendment uses the words "intended or likely to be used"-I am leaving out the other words about outfitting and equipping. The words "likely to be used" are left in the section.

Mr. ST. LAURENT: They are left in but are qualified by the amendment, "equipped in such a manner as to be likely." The likelihood is to be judged not generally but from the amount of equipment and outfitting that is found on the premises.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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LIB

Vincent-Joseph Pottier

Liberal

Mr. POTTIER:

I still submit that we are creating a criminal offence which would not have been there before this amendment was introduced. On the general policy, I rather agree with the member for York-Sunbury and the member for St. John-Albert. We have to be careful about these amendments where we try to bring in by procedure what could not be got under the general common law. We saw what happened in the amendments to the customs act. The officials of the national revenue department found it difficult to obtain convictions. We saw one amendment after another, until it got to the stage that they could call in anyone, and he would have to answer all kinds of questions, and in some instances be asked to sign a statement. The result was that this procedure became wholesale, and they answered nothing. The law defeated itself. By trying to bring about convictions through matters of procedure they got no convictions at all, and the law was abused to such an extent that it received no respect.

I am always suspicious and afraid of these amendments which have as their fundamental purpose the making of convictions which otherwise could not be obtained. In some instances an offence may be enlarged so as to make it easy for officials who otherwise could not obtain a conviction. The suggestion of the new attorney general for Ontario, who I am sure must be a good one, should be examined, and it would be well to wait until next year. If he has not already been consulted, I should like to have the attorney general for Nova Scotia consulted in the matter.

Criminal Code-Betting

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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CCF

Angus MacInnis

Co-operative Commonwealth Federation (C.C.F.)

Mr. MacINNIS:

I have very little to say, because in a certain sense this is a matter for lawyers. Yet I think it is dangerous to leave it with the lawyers, because there may be more than one vested interest in a matter of this kind. To my mind, so long as the word "intended" or "likely" is in the section, I do not think it can be satisfactory. I must confess to knowing nothing about gambling or betting houses. I shall put the case in another way. If we were dealing with some matter affecting labour, a subject about which I claim to know something, and we found there was a section in a labour law providing that a trade union or an officer of a trade union were guilty of an offence if he intended to or was likely to advocate a strike, I would object to such a law. For the same reason in this case I shall have to vote against the amendment. Nevertheless I believe there is a great deal in what was said by the hon. member for Vancouver South and the hon. member for Lake Centre as to the evils with which we are dealing, and the facility with which the law can be evaded. I believe it has always been an axiom with us that a guilty person should go free rather than that an innocent person should be convicted. Because of the two points I have mentioned I shall have to vote against the amendment.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

As I expressed some opinions on the section at an early stage in the discussion, I should like to say one more thing. The minister brings in a government measure which has the approval of council. This is government policy. It will not do for the minister to say, under our system of responsible government, "Here it is; take it or leave it".

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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LIB

Paul Joseph James Martin (Parliamentary Assistant to the Minister of Labour)

Liberal

Mr. MARTIN:

We ought to grasp at the opportunity to kill this thing.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

Probably so. However I am taking exception to the principle upon which the minister is sponsoring this bill. He should never have brought it in unless it had his approval. In dealing with criminal law under our system of responsible government, it will not do for the minister to come to parliament and say, "Here it is; take it or leave it." I have seen that happen before, and it is not responsible government at all.

I was inclined to vote for the amendment of the hon. member for Comox-Albemi. However, a startling statement has been made by the hon. member for Vancouver South, one which makes me uneasy. If in the city of Vancouver there is a system of organized crime with which the authorities have diffi-

culty in dealing, under legislation now existing, admittedly that is an evil for which the Department of Justice is responsible, because it is the department clothed with the responsibility for enacting substantively or proposing criminal law in this parliament. Under these circumstances we are given occasion to pause and consider.

I have a suggestion to make to the minister. In my opinion he must assume responsibility for the bill. He ought to be sure there is a real case in support of it, one which cannot be met by the ordinary provisions of law as they stand to-day. He ought to satisfy himself on that point. If it cannot be dealt with, and we cannot stamp out that which is admittedly or at least is alleged to be a substantial evil-and I am impressed by what the hon. member for Vancouver South said in that regard-then he ought to put this bill through. But he ought to be seized of what the facts are. If in the opinion of those charged with the responsibility of administering the law in Vancouver this is the only way of dealing with it, with the modifications suggested by the minister, then parliament should not lightly throw this out upon the statement of a mere academic principle. Because there is no doubt that to a large extent we are doing away with the question of guilty intent if we pass this legislation. We must not forget that which the lawyers call mens rea, something which varies with various crimes. Very little of it is required in certain classes of criminal cases, and in other cases one must show very strong criminal intent.

My suggestion to the minister is that he let this matter stand until next session, that in the meantime it be reviewed by the Department of Justice, and further information obtained. The statement that 130,000 a day is leaving the city of Vancouver, through an organization of bookmakers, is a startling one.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Douglas King Hazen

National Government

Mr. HAZEN:

It would have to get by the exchange board in some way.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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NAT

Richard Burpee Hanson

National Government

Mr. HANSON (York-Sunbury):

I have

been wondering about that. How in the world do the foreign exchange control board let this money go out of the country for this purpose? The whole position ought to be reviewed, and I suggest that the minister let this section stand over until next session. If the department is convinced that the law as at present worded cannot be enforced, then let the minister come before parliament, with the support of the government behind him. I do not believe we know enough about the factual position to pass the

Criminal Code-Betting

legislation this year, or to vote one way or another. From what I have heard, I would be embarrassed if I were to vote either way, because I have never yet knowingly supported the wrong. I may have been wrong, and I may have often supported1 the wrong, but I never have done so knowingly, and I do not wish to be put in that position to-day.

Topic:   CRIMINAL CODE
Subtopic:   AMENDMENTS WITH RESPECT TO BETTING, PREVIOUS OFFENCE CHARGED, ETC.
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July 17, 1943