Criminal Code of Canada - section 197(3) - Onus

section 197(3)

INTRODUCTION AND BRIEF DESCRIPTION

The accused must prove that a place is not a common gaming house.

SECTION WORDING

197(3) The onus of proving that, by virtue of subsection (2), a place is not a common gaming house is on the accused.

EXPLANATION

Section 197(3) of the Criminal Code of Canada places the burden of proof on the accused to demonstrate that a location in question is not a common gaming house. This provision is important because gambling has been considered an antisocial and criminal activity for a long time in Canadian society. Gambling activities can occur in various forms, including card games, dice games, and betting on games of sports, among others. Section 197(2) provides a broad definition of a "common gaming house" as any place where any games are being conducted or where any betting or wagering takes place. Such a place could be a club, bar, or any other establishment that offers gambling as an activity to patrons. When law enforcement officers arrest individuals for gambling activities, they will allege that such individuals were found in a common gaming house. In such situations, it is up to the accused to prove that the location in question was not being used as a common gaming house. The burden of proof is a crucial legal principle as it ensures that the accused is innocent until proven guilty. The onus of proof under section 197(3) applies only to the accused, and they must provide convincing evidence that refutes the prosecution's allegations. The accused could provide evidence of the establishment's business practices, such as offering non-gambling-related amenities or services, to argue that the location was not used as a common gaming house. In summary, section 197(3) of the Criminal Code of Canada is a provision that places the responsibility of proving that a location is not a common gaming house on the accused. This provision ensures that individuals are innocent until proven guilty and enhances Canada's regulatory frameworks for gambling activities.

COMMENTARY

Section 197(3) of the Criminal Code of Canada serves as a crucial element in prosecuting those who are involved in illegal gaming activities. It states that the accused bears the burden of proof when it comes to proving that a place is not a common gaming house, by virtue of subsection (2). In this commentary, the importance and implications of this section of the Criminal Code of Canada will be discussed. Section 197(2) of the Criminal Code of Canada defines a common gaming house as a place where a person conducts or manages unlawful games. Such games include dice, card or any other game of chance for money or other valuable consideration. Anyone who is found guilty of keeping or being involved in a common gaming house is subject to punishment under the Criminal Code of Canada. The maximum punishment is two years in prison, according to section 201 of the Criminal Code. Section 197(3) imposes the onus of proof on the accused, stating that the accused must prove that a place is not a common gaming house by virtue of subsection (2). This puts the burden of responsibility on the accused to prove their innocence rather than the prosecution to prove their guilt. This is a significant difference from other parts of the Criminal Code of Canada in which the burden of proof is on the prosecution to establish the guilt of the accused beyond a reasonable doubt. The rationale for imposing the burden of proof on the accused in cases of common gaming houses is that it can be challenging for the prosecution to gather evidence and prove beyond a reasonable doubt that a place is being used for illegal gaming activities. The accused, on the other hand, has more detailed information about the activities being conducted in the said location. The accused can provide tangible evidence to support their claims that the place is not a common gaming house. The burden of proof being on the accused also serves as a deterrent factor, as it discourages people from engaging in illegal gambling activities. If an accused finds it challenging to prove that a place is not being used as a common gaming house, they are less likely to take part in such activities. This, in turn, helps in curbing illegal gaming practices. Furthermore, section 197(3) does not violate the fundamental principle of presumption of innocence. The accused is entitled to rebut the presumption of guilt by proving that a place is not a common gaming house. The accused can do so by providing evidence to show that no gambling activities were being conducted in the said location. In conclusion, Section 197(3) of the Criminal Code of Canada shifts the burden of proof onto the accused in cases of common gaming houses. This section is crucial in prosecuting those involved in illegal gaming activities. The accused bears the onus of proving that a place is not a common gaming house. This is a necessary measure to deter individuals from engaging in illegal gaming activities and to ensure that only those who are genuinely innocent are acquitted.

STRATEGY

Section 197(3) of the Criminal Code of Canada places the onus on the accused to prove that a place is not a common gaming house. This section is relevant to individuals who have been charged with operating or being found in a common gaming house. Some strategic considerations when dealing with this section of the Criminal Code of Canada include: 1. Gathering evidence: The accused must take measures to gather evidence to prove that the place in question is not a common gaming house. This could include taking photographs, obtaining witness statements, and conducting research on the premises. 2. Legal representation: It is essential to have legal representation in any criminal matter. In this case, a lawyer can help the accused navigate the legal system and develop a defense strategy that will help them prove that the place in question is not a common gaming house. 3. Understanding of the law: The accused must have a good understanding of the law, particularly the definition of a common gaming house, before they can mount an effective defense. This will enable them to identify any loopholes or technicalities in the prosecution's case and refute them. Some strategies that could be employed to prove that a place is not a common gaming house include: 1. Establishing proof of ownership: One way of proving that a premises is not a common gaming house is to demonstrate that the accused is the legitimate owner or tenant of the premises. This could involve producing lease agreements, rental receipts, or utility bills that show that the accused has control over the property. 2. Demonstrating legitimate use: Another way of proving that a place is not a common gaming house is to establish that the premises has a legitimate use, such as a private residence or a business. This could involve producing evidence such as business registration documents, tax returns, and invoices to show that the premises is used for a lawful purpose. 3. Presenting expert testimony: The accused could also present expert testimony from individuals with knowledge and experience related to the premises in question. For instance, an architect could testify about the design and layout of the building, while a professional investigator could offer insight into how the premises was used. In conclusion, when dealing with section 197(3) of the Criminal Code of Canada, the accused should take steps to gather evidence, seek legal representation, and have a good understanding of the law. Strategies that could be employed to prove that a place is not a common gaming house include establishing proof of ownership, demonstrating legitimate use, and presenting expert testimony. A strong defense will help the accused to refute the prosecution's case and avoid conviction.