Criminal Code of Canada - section 198(2) - Conclusive presumption from slot machine

section 198(2)

INTRODUCTION AND BRIEF DESCRIPTION

A place with a slot machine is presumed to be a common gaming house under the Criminal Code of Canada.

SECTION WORDING

198(2) For the purpose of proceedings under this Part, a place that is found to be equipped with a slot machine shall be conclusively presumed to be a common gaming house.

EXPLANATION

Section 198(2) of the Criminal Code of Canada declares that any place found to be equipped with a slot machine will be assumed to be a common gaming house for the purpose of legal proceedings under this section. This means that if a slot machine is found within a location, it will be deemed that the location is being used for illegal gambling activities, regardless of whether or not there is evidence to support this claim. The provision was introduced in the Criminal Code to address issues surrounding illegal gambling and prevent individuals from operating illegal gambling houses without appropriate licensing and permits. This provision is meant to create a deterrent effect and discourage individuals from engaging in such activities. The provision is important as it defines the legal parameters within which authorities can take legal action against those suspected of operating illegal gambling houses. By deeming a place equipped with a slot machine a common gaming house, the law provides a clear framework for prosecution and makes it easier for law enforcement agencies to uncover and dismantle illegal gambling operations. However, it is essential to note that the provision only applies to slot machines and not other forms of gambling. Therefore, if a location is found to be indulging in other forms of gambling, such as poker, lottery, or sports betting, it will not be presumed to be a common gaming house under this section. Furthermore, the burden of proof remains on the prosecution to prove that the location is being used for illegal gambling activities beyond a reasonable doubt.

COMMENTARY

Section 198(2) of the Criminal Code of Canada creates a legal presumption that a place equipped with a slot machine is a common gaming house, which is an offence under section 201. This presumption makes it easier for the prosecution to prove its case, as it shifts the burden of proof onto the accused to rebut the presumption. This presumption reflects the legislative intent to discourage and prevent illegal gambling activities, which can lead to social harm, including addiction, financial loss, and criminal activities. By treating places with slot machines as common gaming houses, the law targets not only the owners and operators of such places but also their patrons who contribute to the profits of illegal gambling. However, this presumption can also raise issues of fairness and accuracy in the legal process. Because a presumption is a legal fiction that assumes a fact without actual evidence, it can lead to erroneous conclusions if not properly tested. For instance, a place with a slot machine may not actually be used for gambling, such as a private collector's display or an arcade game for entertainment purposes only. Without further evidence to support the presumption, the accused may face unjust conviction based on mere presence of a slot machine. To address such concerns, the courts have developed a two-stage test to determine whether the presumption has been rebutted. First, the accused must show that the slot machine was not used or intended to be used for gambling. This can be done by presenting evidence of the machine's function, location, ownership, operation, and history. In some cases, the accused may also argue that the machine was exempted by law, such as for charitable or religious purposes. Second, if the accused fails to rebut the presumption, the Crown must prove beyond a reasonable doubt that the accused had control, management, or direction over the common gaming house, or participated in its operation, or even attended it as a customer. This requires the Crown to prove a higher level of mens rea or criminal intention than the mere presence of a slot machine, and may involve evidence of financial transactions, surveillance, or witness statements. Overall, section 198(2) of the Criminal Code of Canada serves an important public policy objective of combating illegal gambling activities. However, its use must be carefully balanced against the principles of fairness and accuracy in the legal process, by allowing the accused to challenge the presumption and requiring the Crown to prove its case beyond a reasonable doubt. As with any criminal offence, the law should aim to deter and punish wrongdoing while also protecting the rights and freedoms of individuals.

STRATEGY

Section 198(2) of the Criminal Code of Canada is a critical piece of legislation that increases the risk of prosecution for individuals or entities found to have slot machines on their premises. The section creates a presumption that a place that has a slot machine is a common gaming house, without the need to prove or establish any other evidence. The presumption shifts the burden of proof in criminal proceedings from the prosecution to the accused, and can make it easier for the prosecution to obtain a conviction. Given the serious consequences of a conviction for a common gaming house, individuals and entities dealing with slot machines must carefully consider their legal and strategic options. In particular, there are several strategies that could be employed to avoid or minimize the risk of prosecution under section 198(2), including: 1. Compliance with Licensing Regulations One strategy that businesses could employ to minimize the risks of prosecution for operating a common gaming house would be to meet all licensing requirements established by the Government. The licensing details may vary depending on the category of gaming device but meeting these requirements may act as proof that the machines are not being used criminally. 2. Legal Defenses Another strategy that individuals or entities dealing with slot machines may consider is to mount a legal defense to the presumption of a common gaming house. While the presumption is conclusive, it is not necessarily irrebuttable, and an accused may present evidence to show that the slot machines were not used in a manner that constitutes gaming. A legal defense may be successful if the accused can provide compelling evidence that the slot machines are used for legitimate purposes, such as amusement rather than for gambling purposes. 3. Negotiation with the Prosecutor Individuals or entities dealing with slot machines may also consider negotiating with the prosecutor to avoid charges or obtain a favorable plea deal. Specifically, the prosecutor may be willing to reduce or dismiss charges if the accused agrees to take remedial measures to address the slot machine's presence, such as removing them from the premises. Negotiation can be effective as it can save costs of litigation and can reduce the risk of negative publicity. 4. Proactive Measures Another strategy that individuals or entities dealing with slot machines may consider is to take proactive measures to avoid being charged with illegal gambling. This may include disposing of the machines, implementing policies and procedures that discourage or prohibit illegal gambling, or seeking legal advice to ensure compliance with all applicable laws and regulations. Effective proactive steps can help avoid criminal charges associated with illegal gambling, and protect individuals from exposure to a high-risk environment. In conclusion, Section 198(2) of the Criminal Code of Canada increases the risk of prosecution for individuals and entities found to have slot machines on their premises. The implications include a fine by penalties or conviction. Therefore, it is essential that businesses carefully consider their legal and strategic options when dealing with this section of the Criminal Code. By meeting licensing requirements, engaging in legal defenses, negotiating with the prosecutor, and implementing proactive measures, businesses can personalize their strategies to protect themselves from criminal and financial consequences associated with illegal gambling. While these approaches cannot guarantee immunity, they can mitigate the risks and minimize damage.