July 17, 1943

LIB

John James Kinley

Liberal

Mr. KINLEY:

Everybody does.

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):

Not this type of betting, bookmaking and the like. I do not think we ought to make it easier. I suggest further, that there is a principle involved. Before proceeding I say the minister must justify the use of this language.

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

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

Would the minister explain, when he rises to reply to the hon. member for York-Sunbury, what the amendment is going to be to section 8, so that we may discuss it now?

Mr. ST. LAURENT: With respect to section 8 I had intended, if section 7 is adopted, to ask the committee to add:

Provided however that the provisions of this paragraph shall not apply to the publication of news or records in relation to any race, fight, game or sport, or to contestants therein, in the ordinary course of publishing a bona fide newspaper.

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 helps.

Mr. ST. LAURENT: Before proceeding further may I make my position clear, because I believe what I shall say will be informative. The criminal law, including criminal procedure, is within the exclusive jurisdiction of parliament. But the administration of criminal law is within the jurisdiction and is the responsibility of the attorneys general of the provinces. It is perhaps the one instance in connection with which legislative jurisdiction is in one body and administrative jurisdiction is in one or more other bodies. This is the only place where an amendment can be made to the substantive law, or to the procedure. The attorneys general of the provinces have the responsibility of enforcing

Criminal Code-Betting

the law, and therefore they are closely connected with the application of the rules of procedure we lay down. From time to time they make representations to the federal department that, in their view, certain improvements should be made in the procedure. The stand taken by the federal department is that when a plausible case is made out for one of these representations it would be improper for the department not to bring it before parliament. Parliament is composed of people representative of the population of the whole country. They are at the same time inhabitants of Canada and of their own respective provinces.

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 minister is carrying that doctrine further than his predecessor. He had to be convinced it was a proper change before he would bring it in.

Mr. ST. LAURENT: That may be; but my view is that when a plausible case is made out by an attorney general or by attorneys general for an amendment with respect to procedure I feel it my duty to bring it before parliament, because parliament is the only body which can deal with and pronounce upon it. I would not take the same view with respect to the creating of substantive crimes. That, in my opinion, is on a different footing.

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 minister thinks this is a matter of procedure.

Mr. ST. LAURENT: The principle behind this amendment is the desire that betting should be curtailed. The section which it is now proposed to amend is not one which creates a crime, but rather one which defines a common betting house. There is another provision which says it is an offence to keep a common betting house.

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

George Russell Boucher

Progressive Conservative

Mr. BOUCHER:

' It really enlarges the crime, though.

Mr. ST. LAURENT: No, I submit not. It does not change the thing which parliament wished to curtail.

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):

Therefore it is a matter of procedure.

Mr. ST. LAURENT: It is a matter of procedure, as to how we shall go about it, to lessen what was looked upon as the evil of betting.

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):

Not quite "that; it is the intermediate stage.

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

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

It has to do with the evidence upon which convictions may be secured.

Mr. ST. LAURENT: Of course that is practically the same thing. These provisions of the criminal code cannot be expressed only in the form of pious wishes; they have to be accompanied by provisions whereby they can be enforced against those who would not give way to the expression of a pious wish. There have been representations from the attorneys general of three provinces that the, to them, evil of betting was increasing, and) that it would be of advantage to tighten up the methods of restriction provided by the code; and the form in which the amendments were first presented here was the form suggested by those gentlemen. After the bill was printed and became known, representations were received by the department making objections of the kind voiced here this morning by the hon. member for Comox-Alberni. On considering the matter I thought the objections were well taken and that the mere word "likely" was too broad. For that reason I have brought in this morning the suggestion that it should not be left so that anything at all could be held to be "likely", but that it should be confined to a place outfitted or equipped1 with the things usually found in places used for that purpose. I do confess that this removes the necessity of proving subjective intent on the part of the person prosecuted, but the purpose of the law is not to assure the purity of mind of the person charged; what is aimed at is to curb the effect, and this would make it sufficient to prove objectively that what had been provided was a thing that brought about the result we wished to eliminate. My position in that regard is that I am going to suggest that section 9 be dropped. That section concerns the telegraph and telephone companies. We in the department had thought that by using this language we would be giving them further protection, but they do not think that is so, and for that reason I am going to ask the committee to allow this section 9 to be dropped.

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):

Was section 9 asked for by any of the attorneys general?

Mr. ST. LAURENT: What was asked for by the attorneys general was much more drastic than I would care to submit to the house; I do not think there was a plausible, case made out for it. What was asked for by some attorneys general was that it be a crime to let any of this news come over the wires. I did not think there was a plausible case presented, because that would curb legitimate activities at the same time that it would

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eliminate the thing these attorneys general wanted to eliminate. I thought that on balance the inconvenience of curbing legitimate activities would be greater than the inconvenience of being unable to prevent the facilities from being used from time to time for purposes that may be undesirable.

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

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

What attorneys

general suggested the changes that were made in sections 7 and 8?

Mr. ST. LAURENT: Section 7 was suggested by the attorney general of Ontario and the attorney general of British Columbia, and concurred in by the deputy attorney general of Alberta. Section 8 was suggested by the deputy attorney general of Alberta, concurred in by the attorney general of British Columbia, and favourably commented upon by the former attorney general of Ontario.

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

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

Who was that?

Mr. ST. LAURENT: Mr. Conant. My position with respect to what is to be left of sections 7 and 8 is that I bring them before the house, and represent to the house that they have been suggested by the attorneys general of two or three provinces; that they appear plausible, and that this is the only body which can deal effectively with the matter. I am going to listen, to see if the proposals receive support from any of the representatives of the population of Canada, and if they do not receive that support I think I shall be entitled to conclude that the evil suggested by the attorneys general is not sufficiently apparent to have created a very great impression. That is the position. I do not think it would have been proper for me to say to them, "No, you cannot even get this before parliament." They are the ones who are administering these laws, and they say it would appear to them desirable to have them tightened up in this way. They have pointed out that there was a growing evil of increased betting by people who should not be using their resources at this time in that way; that large sums were being lost, and the suggestion was made that it required conversion into American exchange for the profits arising out of these transactions to be transmitted to those to whom they were finally destined. But if the situation is not such that members of this house have seen the evil and recognized that something should be done about it, I do not intend to insist upon the passage of even these modified sections 7 and 8.

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

George Russell Boucher

Progressive Conservative

Mr. BOUCHER:

Could the minister give any figures that would indicate the number of unsuccessful charges that have been laid, and the number of successful charges? I speak with some experience in the matter, and I have in mind that it is more difficult to get the principals to lay charges against the keepers of common gaming houses than to secure a conviction once a charge is laid. That being so, I do not know that we are getting anywhere by taking this action. I think perhaps the minister could persuade us of the necessity of this amendment if he could show' us that there has been great difficulty in securing convictions, that in spite of so many charges having been laid, few convictions have been registered. That would definitely indicate that an amendment to the procedure w'as necessary, that communities desiring to stamp out this evil had done their best but that something in the law made it so difficult to obtain convictions that the social reform desired was impeded. Unless that situation is made evident, however, I do not think we should so extend procedure as to enlarge the crime and thus make it more difficult to institute an action and secure a conviction. I think it is generally acknowledged that if a penalty is very severe it has the effect of lessening the number of charges laid. If the provisions dealing with intent are made very wdde, it leads to great variation in the way in which these matters are dealt with by various judges or magistrates. It may be found that in certain communities, where revenue is sought, they revert at times to a loose and easy way of getting convictions, the purpose being to secure fines rather than to bring about a moral uplift. We should look at that carefully and not facilitate the securing of convictions by magistrates or judicial officers who may be seeking to obtain revenue rather than to raise the moral standing of their community. I think all of us know that in certain communities for many years the gambling interests have been prosecuted periodically. They pay their fines and the next day return to business and carry on for some time unmolested. It is hard to convince the public that there is a wholehearted desire to stamp out gambling, that there is not just a desire to obtain revenue.

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):

Surely that is not done in Ottawa.

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

George Russell Boucher

Progressive Conservative

Mr. BOUCHER:

I shall not make any

comment as to where it is done. Perhaps if we read the news about the Ottawa district we might find some reference to this. I do

Criminal Code-Betting

not think we should make it easier for those who go after convictions to obtain them in the court.

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

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

I find it difficult to follow the argument which has been advanced by the Minister of Justice as to why these amendments were introduced. In my opinion this amendment does not result in the constitution of any new offence or in the widening of an offence. It is purely procedural; it provides an opportunity for the crown to establish that an offence has been committed without having to prove, as has heretofore been the case, that the premises are kept or used for the purposes of making bets. As originally set out in the bill the proposed section would have constituted the most dangerous invasion of the rights of the individual that could possibly be imagined. The hon. member for Comox-Alberni pointed out the situation quite clearly, not only to-day but last evening. However, the amendment which is now suggested does not appear to me to be open to the objection that could be taken to the original amendment.

Mr. ST. LAURENT: Certainly not to the same degree.

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

John George Diefenbaker

Progressive Conservative

Mr. DIEFENBAKER:

Not to the same degree. The words of the amendment are, "intended to be used," in other words intent must be established. Then the amendment reads, "or outfitted or equipped in such a manner as to be likely to be used." The operation of a gaming house where people resort or have the opportunity to lay bets is a crime according to the law of the land. As I see it, all that is being asked for by this new amendment is that the crown be not required to prove something that it has been almost impossible to prove affirmatively, namely, that the premises have been kept or used for the purpose of facilitating bets.

There have been quite a number of cases in which courts of appeal have held that the evidence was not sufficient to bring the charge within the strict provisions of the code. I cannot understand the minister's attitude when he says that if hon. members of the house do not think that betting is serious and widespread the amendment will not be proceeded with. As I say, this does not constitute a new offence; it does not make a crime of something which has not been a crime heretofore; all it does is to facilitate the conviction of the wrongdoer who heretofore has been able to secure an acquittal.

Generally speaking, these particular provisions have been the statute law of the land for over forty years, or for almost one hundred years under the common law, without amendment. The modern bookmaker is able to evade the law as it stands at present. I feel that the objection which was pertinent when the bill was introduced, namely the words "or likely to be used" has been removed. As a matter of fact, I think the Minister of Justice is to be commended for having introduced the number of amendments he has. The criminal code is hopelessly out of date in many of its sections. There are a great number of anomalous sections and there has been no endeavour since our criminal law was first codified to revise it with a view to bringing it up to date. Different interpretations have been placed upon the same section by different courts. We continue year after year to use the same code, making only a few changes or adding a patch here and there instead of once and for all bringing it up to date after a period of fifty years. We should appoint a parliamentary committee, or a committee representative of the attorneys general and composed of outstanding counsel, to go over the code and bring it up to date, to the end that the purpose of the codification may be secured, namely, that the law shall be clear so that justice shall be done. Sections have been permitted to remain in the statutes which have no meaning whatever. "Or" has been interpreted as "and", an interpretation that is contrary to the actual intention. This is but one example of a section that should be revised.

I do feel that the minister should give consideration to the desirability of having carried out a piece of work that would be monumental in its results, that would be tremendous in its scope. It would require some years of effort, but it would make our criminal code something worthy of our country. Codification is intended to represent the law as it actually is at the moment it is codified. I ask the minister to give consideration to taking what I believe would be one of the most forward-looking and advanced steps that could possibly be made, namely, the removing of the anomalies that now exist in many sections and the recodifying of the criminal law thereby bringing it up to date and in accordance writh modern practice.

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

Thomas Reid

Liberal

Mr. REID:

I do not think an attempt should be made to intimate that members of the committee are in favour of the encouragement of betting or gaming houses. I do not think that need be stressed at all. My chief objection to the amendment is that it places a greater burden on the accused to prove further that he is innocent, and that is something which I believe we should not do. The old adage that a man is innocent until he is proved guilty would not obtain under this

Criminal Code-Betting

legislation, and the amendments proposed only make the position of the accused worse in his having to prove himself innocent.

The minister has said that two attorneys general have asked for this amendment, including the attorney general of Ontario. Has the minister brought his information up to date? There is a new attorney general for the province of Ontario, and he might not approve this 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):

Who is he? Mr. GRAYDON: They change so often.

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