Lottery Offences (s. 206, 207, 207.1 and 209) Charges in Canada: Offences, Defences, Punishments

Lottery offences are covered under s. 206, 207, 207.1 and 209 of the Criminal Code, found in Part VII. Part VII covers “Disorderly Houses, Gaming and Betting”.

Lottery offences, specifically s. 206, 207, 207.1 and 209, are hybrid offences with a Crown election. This means that depending on the circumstances of your case, the Crown may choose to proceed summarily or by indictment. If an accused is prosecuted by indictment, there is also a Defence election of court under s. 536(2) of the Criminal Code.

Examples

Some examples of lottery offences may include the following:

• The accused advertised a plan to dispose of property by tickets or other modes of chance;
• The accused managed the operation of a lottery scheme;
• The accused, in hosting a lottery scheme aboard an international cruise ship, failed to meet all of the conditions required for this, such as having all participants aboard the ship;
• The accused cheated while playing a betting game.

Defences

The defences available to a lottery offence charge are entirely dependent on the facts of your case.

However, some defences to a lottery offence charge may include:

• The accused was wrongly identified as the person who committed the lottery offence;
• The accused followed all directives in order to lawfully participate in a lottery scheme;
• The accused was under duress when they committed a lottery offence; and
• The accused was not arrested lawfully.

Punishment

A Lottery Offence charge is a hybrid offence which entails a maximum punishment as follows:  

• Imprisonment for a term not exceeding 2 years.

Lottery offences, notably those listed in s. 206, 207, 207.1 and 209, are all hybrid offences with a maximum punishment of two years in jail, if prosecuted by indictment, and a minimum punishment of 6 months in jail and/or a $5000 fine if prosecuted summarily.

A lottery offence charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

The Guilty Act (Actus Reus)  

The actus reus for a lottery offence under s. 206 is established by proof, beyond a reasonable doubt, of the following:

• The accused at a specified date and time, in the correct jurisdiction, made or caused to be made, a proposal or plan;
• This plan entailed the advancing, or disposing, of property in any way by a mode of chance.

OR

• The accused sold, or otherwise assisted, in the sale of a ticket that would provide a means for disposing of property by a mode of chance.

OR

• The accused sent or allowed to be sent an item;
• This item is one that is used for carrying out a proposal or plan for disposing property via modes of chance.

OR

• The accused managed an operation;
• This operation determined the winner of property to be disposed of.

OR

• The accused conducted an operation through which a person, pays money or security or obligation, can receive, through the scheme, a larger amount of money or security than they paid in the beginning;
• This money was available by reason of other people having paid under the operation.

OR

• The accused disposed of goods by or through a game of chance and skill where the competitor paid money or security;

OR

• The accused induced another to stake money or property on the result of.a operation of chance, such as a dice game or three-card monte;

OR

• The accused carried on or offered to carry on three-card monte in a public place; or
• The accused employed another to play three-card monte in a public place.

OR

• The accused received bets on the outcome of a game of three-card monte.

OR

• The accused was the owner of a place outlined in s. 206; and
• The accused permitted another to play three-card monte within the place.

The actus reus for a lottery offence under s. 207 is established by proof, beyond a reasonable doubt, of the following:

• The accused did something that was not authorized by s. 207, that is:
• The accused was not a member of government acting lawfully, the accused was not a charitable or religious organization with a licence, was not a member of a fair or exhibition or a lessee of a licensed or lawful concession, did not agree with the government of another province, as a government member, that tickets or other material can be used in the other province, did not, pursuant to a licence or designation, conduct a lottery scheme that was authorized, did not do what was required for the proper conduct within a lottery scheme, and did not make or cause to be made something related to gaming that would be used in a lawful place.

As this is a section that explains what is allowed in terms of lotteries, the actus reus here would be the accused doing something that is not expressly permitted by this section.

The actus reus for a lottery offence under s. 207.1 is established by proof, beyond a reasonable doubt, of the following:

• The accused did not, as the owner, operator, or agent, of an international cruise ship, did not comply with all of the conditions required by s. 207.1 to lawfully conduct or operate a lottery scheme during a trip on the cruise ship;

OR

• The accused did not, as a person participating in a lottery scheme, follow all of the conditions required by s. 207.1.

As this is a section that explains what is allowed in terms of lotteries, the actus reus here would be the accused doing something that is not permitted by this section. Section 207.1 requires all participants in the lottery scheme to be on the ship, for the lottery scheme to not be linked in any means of communication with a lottery scheme off ship, the lottery scheme is not located within five nautical miles of a Canadian port where the ship calls or is supposed to call, and the ship is registered and its voyage registered with some additional conditions.

The actus reus for a lottery offence under s. 209 is established by proof, beyond a reasonable doubt, of the following:

• The accused cheated while playing a lottery game or holding the stakes for such a game.

The actus reus refers to the act or the omission itself that constitutes the physical elements of a crime. Thus, the physical aspect of a lottery offence would be constituted by any physical act that constitutes this charge.

The Guilty Mind (Mens Rea)

The mens rea for a lottery offence under s. 206 includes proving, beyond a reasonable doubt, that:

• The accused knowingly made or caused to be made a plan;
• The accused knew this plan proposed to dispose of property through a mode of chance.

OR

• The accused knowingly sold tickets or assisted in their sale;
• The accused knowingly provided means for disposing of property via a mode of chance by doing so.

OR

• The accused knowingly sent an item or allowed to be sent an item;
• The accused knew the item would be used for a modes of chance proposal for the disposal of property.

OR

• The accused knowingly managed a lottery-type operation;
• The accused did so, knowing that the operation would determine the winner of property to be disposed of.

OR

• The accused knowingly conducted an operation; and
• The accused knew that the operation allowed for individuals to receive a larger amount of money than they paid for in the beginning, due to other having paid under the operation.

OR

• The accused knowingly disposed of goods by or through a game of chance where the competition paid money or security;
• The accused knowingly participated in the game of chance, knowing its parameters.

OR

• The accused knowingly induced another to stake money or property on the result of an operation of chance;

OR

• The accused knowingly carried on or offered to carry on three-card monte in a public place; or
• The accused knowingly employed another to play three-card monte in a public place.

OR

• The accused knowingly received bets on the outcome of a game of three-card monte.

OR

• The accused was the owner of betting place as outlined in s. 206;
• The accused knowingly permitted others to place three-card monte within the place they own.

The mens rea for a lottery offence under s. 207 includes proving, beyond a reasonable doubt, that:

• The accused knowingly did something that was not authorized by s. 207, that is:
• The accused knowingly was not a member of government acting lawfully, the accused was not a charitable or religious organization with a licence, was not a member of a fair or exhibition or a lessee of a licensed or lawful concession, did not agree with the government of another province, as a government member, that tickets or other material can be used in the other province, did not, pursuant to a licence or designation, conduct a lottery scheme that was authorized, did not do what was required for the proper conduct within a lottery scheme, and did not make or cause to be made something related to gaming that would be used in a lawful place.

As this is a section that explains what is allowed in terms of lotteries, the mens rea here would be that the accused knew they were not complying with the conditions listed in s. 207.

The mens rea for a lottery offence under s. 207.1 includes proving, beyond a reasonable doubt, that:

• The accused was the owner, operator, or agent, of an international cruise ship; and
• The accused knowingly did not comply with all of the conditions required by s. 207.1 to conduct or operate a lottery scheme lawfully during a trip on the cruise ship;

OR

• The accused was a person participating in a lottery scheme aboard an international cruise ship; and
• The accused knowingly did not comply with all of the conditions required by s. 207.1.

The mens rea for a lottery offence under s. 209 includes proving, beyond a reasonable doubt, that:

• The accused intended to defraud a person while playing a lottery game or holding the stakes for such a game.

Mens rea is defined as the knowledge or intention of committing the crime. Thus, knowing that one has committed a lottery offence as outlined in the offence section, consists of the mens rea of the charge.

Defences

How to Beat a Lottery Offence Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a lottery offence charge.

Factual innocence

Factual innocence is one possible, strong, defence against a lottery offence charge. If you can prove, using the facts and evidence of your case, that you were not engaged in an act under s. 206, 207, 207.1 or 209, or that the evidence cannot place you as the perpetrator of a lottery offence charge, then you may be able to defend yourself by stating that you were factually innocent.

Duress

Another possible defence to a lottery offence charge is duress. Duress is proven when the five criteria listed below are met.

• That there was a threat of present/future death or physical harm,
• That the accused reasonably believed the threat would be carried out,
• That the accused had no safe way to avoid the harm,
• That it is because of the threat that the accused did what they did, and
• That the harm that the accused caused was not disproportionate to the harm that was threatened against the accused.

All five of the elements of duress must be met for the defence of duress to apply.

Necessity

To be able to raise a defence of necessity, you must show that your actions were reasonably involuntary and unavoidable. Necessity is raised where there are emergency situations or self-preservation or preservation of others required. The key to raising this defence is to prove that your actions were truly involuntary. You, as the accused, have the burden to establish that this defence is likely. To do this, you must prove all three elements of the defence:

• The accused must have been in imminent danger;
• The accused must have had no reasonable alternative to the actions the accused took; and
• The harm inflicted by the accused has to be proportional to the harm the accused avoided.

Identity 

A defence based on the identity of the perpetrator may be a defence to a lottery offence charge. For this defence to be raised successfully in court, you would have to prove that you did not commit this act. Alternatively, if you can prove that you were not there at the time the offence was committed, you would raise an alibi defence. This is a defence that states that the accused was wrongfully convicted. Evidence that can be submitted to create a solid identification defence is eyewitness identification, DNA evidence, media, and fingerprints.

Any applicable Charter defences 

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years for those convicted of a lottery offence charge.

For persons found guilty of lottery offences, all dispositions are available: they may receive a discharge under s. 730 of the Criminal Code, a suspended sentence under s. 731(1)(a), a stand-alone fine under s. 731(1)(b), custody under s. 718.3 and s. 787, custody and probation under s. 731(1)(b), a custody and fine under s. 734, or a conditional sentence under s. 742.1 of the Criminal Code.

Some general sentencing orders, such was restitution orders under s. 738 or victim fine surcharges, as well as general forfeiture order, such as forfeiture of offence-related property under s. 490.1 of the Criminal Code, are also possible additions. Strategic Criminal Defence may also help you lower your jail sentence and orders sought through discussions with the Crown prosecutors.

As the maximum jail sentence for all of the listed lottery offences is 2 years, the court cannot order a discretionary DNA order under s. 487.04 (c), (d) or (e), of the Criminal Code.

207. 206, 207, 207.1 and 209 offences are eligible for records suspensions under s. 3 and 4 of the Criminal Records Act. This means that the offender can apply for the suspension of this specific offences, five years after the sentencing, if they are prosecuted summarily.

Frequently Asked Questions  

Can you go to jail for Lottery Offences?

Yes, you can go to jail for lottery offences under the Criminal Code if you are found guilty of them. If the Crown decides to proceed by indictment, lottery offence charges carry a maximum sentence of no more than two years in jail. If the Crown proceeds summarily, the maximum sentence is 6 months in jail and a $5,000 fine. Therefore, there is a possibility that you may go to jail for a lottery offence prosecuted by indictment or summarily.

What is the maximum penalty for Lottery Offences?

The maximum penalty for lottery offences is two years in jail, if prosecuted by indictment. Therefore, if the Crown decides to proceed by indictment, you may, if found guilty, face up to two years in jail. However, with a summary prosecution, jail time is significantly lower, and goes to a maximum of 6 months in jail and a potential fine of $5000, if found guilty.

Is Lottery Offences an indictable offence?

Lottery offence are hybrid offences. Though s. 206(1) and 209 previously were indictable offences, they were amended in recent years to become hybrid offences. This means that the Crown can choose whether they want to proceed summarily or by indictment. If they choose to proceed summarily, the offence punishment is lower; with 6 months in jail and a $5000 fine being the maximum. If the Crown chooses to proceed by indictment, the maximum is two years in jail.

Published Decisions  

R v Taylor and Ravenshoe Services, 2006 BCPC 562 (CanLII)

The two accused, Mr. Taylor and Ravenshoe Services Ltd., operated an unlawful international lottery business, based primarily in Ontario, though the two accused worked out of British Columbia. Their business was sending out designed solicitations to people with the intention of enticing them to buy interests in European and Canadian lottery tickets. The accused had active roles, including calculating chances of winning, picking up the mail, compiling data, tracking tickets, and depositing cheques received from participants. The two plead guilty to having printed a scheme, the Canadian Lottery Buyers Association, to dispose property by modes of chance in Canadian lotteries. This was contrary to s. 206(1)(a). The two accused, Mr. Taylor and Ravenshoe Services Ltd., also offered, for sale, tickets in foreign lotteries where individuals could dispose their money in foreign national lotteries by random number draws, contrary to s. 206(1)(b).

The court found that the material distributed tempted others to make a risk where they would not otherwise do so. There were certain aggravating factors as well including the history of involvement in domestic lotteries of the accused, the sophistication of the illegal lottery scheme, and the large amount of funds received. The court upheld both sentences and submitted that fines were in order, as well as a probationary term of one year for Mr. Taylor.

You can read the full decision here.

R v Friskie, 2003 SKCA 72 (CanLII)

The accused had marketed a product named Skybiz 2000 that fell within the meaning of s. 206(1)(e), for a couple of years, and had received over 100,000 USD over her time working for them. Originally convicted of a s. 206(1)(e) offence, the accused appealed this conviction and aimed to prove that the scheme was a legitimate business rather than a sham in this court.

The court therefore examined whether the Skybiz compensation structure was lawful commercial activity, and whether it fell within section 206(1)(e) and found that the section has a wide range, and can encompass multi-level marketing schemes, such as Skybiz 2000.

The court concluded that those who purchased the product due to Frisk’s recommendation, were at risk if they also failed to sell the product. The scheme is a pyramid scheme, which causes harm to many participants. The court dismissed Friskie’s appeal against conviction.

You can read the full decision here.

R v World Media Brokers Inc., (2003) 171 OAC 99 (CanLII)

The accused appealed their conviction on eight charges based on their creation and use of a scheme to sell shares of tickets in a foreign lottery. The accused attempted several defences, finally attempting to argue for a s. 207(1)(h) exemption. A s. 207(1)(h) exemption states that it is lawful for an individual to print anything betting-related in Canada that would be lawfully used elsewhere. The trial judge found the exemption narrow enough to not encompass their actions and also concluded that their activities violated United States law as well.

The Court of Appeal agreed with the trial judge, finding the exemption in s. 207(1)(h) was not available to the defendants, and concluded that the appeals to conviction and sentence should both be dismissed.

You can read the full decision here.

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