University of Calgary PRISM: University of Calgary's Digital Repository Alberta Gambling Research Institute Alberta Gambling Research Institute 1983 The history of the law of gaming in Canada Robinson, Ronald G. Royal Canadian Mounted Police (RCMP) http://hdl.handle.net/1880/1477 Other http://creativecommons.org/licenses/by-nc-nd/2.0/ Attribution Non-Commercial No Derivatives 2.0 Downloaded from PRISM: https://prism.ucalgary.ca h r Sgt. R.G. (Ron) Robinson R.C.M.P. Gaming Specialist THE HISTORY OF THE LAW OF GAMING IN CANADA THE OPINIONS EXPRESSED IN THIS PAPER ARE THOSE OF THE AUTHOR AND NOT NECESSARILY THOSE OF THE ROYAL CANADIAN MOUNTED POLICE NOR OTHER MEMBERS OF THE ROYAL CANADIAN MOUNTED POLICE, NATIONAL GAMING SECTION. COPYRIGHT 1983 RONALD GEORGE ROBINSON ALL SIGHTS RESERVED. NO PART OF THIS PAPER MAY HE REPRODUCED-, STORED IH A RETRIEVAL SYSTEM, OR TRANSMITTED, IN ANY FORM, OR 3Y ANY MEANS, ELECTRONIC, MECHANICAL, PHOTOCOPYING, RECORDING OR OTHERWISE, WITHOUT THE PRIOR PERMISSION OF THE AUTHOR. - 2RISTSD AND BOUND IN CANADA. - - THE HISTORY OF THE LAW OF GAMING IN CANADA SAMING SPECIALIST FIELD UNDERSTUDY PROGRAM ROYAL CANADIAN MOUNTED POLICE RESEARCH PAPER NO.l SUBMITTED BY; RONALD G. ROBINSON, SGT. UNDERSTUDY NATIONAL GAMING SECTION R.C.M. POLICE EDMONTON, ALBERTA TABLE OF CONTENTS PAGE ABSTRACT ....................................................... (i) CHAPTER ONE ENGLISH GAMING LEGISLATION AMD ITS EFFECT ON THE CANADIAN EXPERIENCE ...~................................................ 1 EFFECT OF ENGLISH GAMING LAWS ON CANADA ........................ 16 CHAPTER THO FACTORS MOTIVATING THE PASSING OF GAMING LAWS IN ENGLAND AND THEIR EFFECT ................................................. 28 CHAPTER THREE CANADIAN GAMING LEGISLATION - THE FORt'ATIVE YEARS .............. 37 CANADIAN GAMING LEGISLATION - COMING OF AGE .................... 53 STATUTORY EVOLUTION OF CONTEMPORARY PART V - CRIMINAL CODE Section 179(1} "Bet" & "Common Betting House" ........ 70 Section 179(1) "Common Gaming House".................. 72 Section 179(1) "Disorderly House" .................... 73 Section 179(1) "Game" ................................ 74 Section 179(1) "Ganing Equipment" .................... 76 Section 179(U "Keeper" .............................. 78 Section 179(1) "Place" ............................... 79 Section 179(2) "Bona Fide Social Club" ............... 80 Section 179(4) "Gaming House - Part of Game Played Elsewhere" ........................... 81 Section 180 "Presumptions" ........................ 82 Section 181 "Warrant to Search" Seizure-Arrest- Forfeiture ........................... 84 Section 183 (Repealed) "Examination of Persons Arrested in Disorderly Houses ........ 86 Section 184 "Obstruction ...................7...... 89 Section 185 "Keeping Gaining or Betting House" ..... 9fl Section 186 "Betting-Pool Selling-Bookmaking ...... 93 Section 187 "Placing Bets on Belialf of Others ..... 94 Section 188 "Exemption" Pari-Mutuel System ........ 95 Section 189 "Illegal Lotteries - Games of Chance".. 97 Section 190 "Permitted Lotteries" ................. 103 Section 191 "Gambling in Public Conveyances ....... 106 Section 192 "Cheating at Play" .................... 106 FACTORS MOTIVATING THE PASSING OF GAMING LAWS IN CANADA AND THEIR EFFECT ................................................. 103 1953-54 "Joint Committee of the house of Commons and the Senate on Capital Punishment, Corporal Punishment and Lotteries" Parliament of Canada ....... 120 1968-69 "Standing Committee on Justice and Legal Affairs" Parliament of Canada ........................ 123 Outline and Interpretation of "Permitted Lotteries Clause 190 Criminal Code and its Unparalleled Historical Significance" ............................. 125 Gauging the Effectiveness of Canadian Gaming Law in Relation to the Level of Enforcement .............. 137 RIBLIOGSAPHY ................................................... 146 TABLE OF STATUTES .............................................. 143 "THE HISTORY OF THE LAW OF GAMING IN CANADA" BY: RONALD G. ROBINSON It has been said that the law of gaming is the creature of statute.1 Never has there ever existed a better example of a truism. The regulation and organization of man's games by government appears to be a recurring feature in his history. It was the purpose of this study to examine the more prominent attempts of both English and Canadian governments, by the imposition of parliamentary statutes, royal proclamations, statutes of Canada and the Criminal Code of Canada, to dictate the nature of ganing activity one could indulge in. The period studi ed begins with thirteenth century England and ends at the time of writing, which is A.D. 1983. It is valid to state that Canadian gambling legislation is steeped in the roots of English precedent as is that of the United States. Although the English were loathe to codify much of their law, the common law system being held in reverence because of its suitability to judicial' interpretation, we in the colonies structured our codi fi ed sanctions around England's common law provisions. 1. STREET, H.A., LAW OF GAMING (1937) (11) It is relevant to this study to comment upon the motives behind the legislation in question on occasion. Certain provisions have, throughout the decades, managed to come into prominence 1 n the courts. Accordingly, cases of Interest will be subject to quotation, especially those of this century. While not all-encompassing, this Investigation into gaming legislation and its reasons for being 1s reasonably comprehensive. Much of the contemporary provisions in the Crimiial Code appear to he ambiguous and inconsistent to the uninitiated, and a straightforward reading of Part V will not provide rel1ef. In fact, the reasons for certain sanctions, 1n particular the prohibited games described under Section 189(1)(g), nave been lost to history. That is to say, all parliamentary sources have been exhausted without success in some instances,--however few. •-••-~ Readers must bear in mind that in Canada, between 1892 and 1970, the law disallowed anything but part-mutual racetrack betting and ganes of chance whose regul ar1 ty was to be determined by each provi nee. Some " exceptions were made for agricultural fairs. Until 1970, Canada's garning 1 aws remained relat1vely unchanged as compared to their Inception in the f1rst Criminal Code In 1892. As mentioned, the Code of 1892 had as Its origin various English statutes dating from the sixteenth century and in the case of gaming houses, the thirteenth century. It is only since 197n, therefore, that legalized gambling has / burgeoned into its present state in Canada. The law of gaming's historic progression is presented in the material that follows. Hopefully, it will i provide a measure of insight, interpretation and understanding as to what has brought us to the status-quo. ENGLISH GAMING LEGISLATION AND ITS EFFECT ON THE CANADIAN EXPERIENCE (1285-1853) Historians long ago grasped the Importance of law to history. They knew that medieval political theories were expressed in legal terms and also the political conflicts of seventeenth century England; yet they knew also that a country's law takes us far beyond It's constitution, to every social activity important enough to seem worth regulating?2 This paper 1s concerned with a sodal activity which the governments of England -and Canada have continually deemed to be worthwhile regulating. Gaming has been regulated, for various reasons, since the time of the Conqueror through to present day. The legislation of morality was as controversial then as it 15 now. Legislation of early periods is, of course, still available for examination. One of the earliest gaining pursuits, fencing, was outlawed by EDWARD I 1n 1285.3 2. Harding, A., A Social History of English Law, {Penguin, 1956), P.7 3. 13 Edward I. c.7. Statutes of the Realm The Tudor Monarchs were particularly prolific in this field of legislation and accordingly many sixteenth century Englishmen were prosecuted for playing unlawful games. It follows that Vth of February in the 38th year, and c., Ryhill of Moston Thrower; Anthony Barry of Manchester (Joiner cancelled) Butcher, did play at the Bowls on Newton Heath, contrary to lawe. That games such as football and bowling could be considered contrary to the law seems incredible to us now. Nevertheless, in England until the mid-nineteenth century, the games of football, dice and bowling were prohibited for the masses. The Canadian prohibition against dice games contained in Section 189(.l)(g) of the Criminal Code has its origins in Tudor legislation. In fact, in theory, Englishmen could still be prosecuted under an act of HENRY VIII as late as I960.5 Of some interest is the concept of English statute-law as compared with royal proclamations. Statute-Law is that which is enacted in Parliament and the ultimate power of same is obvious. Royal proclamations, however, were surrounded in controversy in the fifteenth and sixteenth centuries. 4. Grofton, M.T., A History of Newton Chapelry in the Ancient Parish of Manchester (Chetham Society, 1904) Vol.2, P.73. 5. 33 Henry III, c.9. Statutes of the Realm A Proclamation of any period may call attention to and enforce the observation of some existing law, makes a new regulation or prohibition in virtue of a recognized prerogative of the Crown, formally announced some executive act, or (before the great Civil War) enforce the rights of the Crown as the feudal chief of the Kingdom.6 STEELE'S view then limits the actual legal