Date: 19980209
Docket: T-570-97
IN THE MATTER OF s. 204(1)(c) of the Criminal Code, R.S.C.
1985, c. C-46, as amended
AND IN THE MATTER OF s. 7(2) of the Pari-Mutuel Betting
Supervision Regulations, SOR/91-365, as amended
BETWEEN:
THE ONTARIO JOCKEY CLUB,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order setting aside a decision of the Executive Director of the Canadian Pari-Mutuel Agency. That decision refused to amend the applicant's pari-mutuel betting permit to include therein permission to accept wagers on horse races run by the applicant through on line personal computer betting, that is, without the attendance of the person placing the bet at the race-course. The Executive Director refused the request for an amended permit, by letter dated March 19, 1997, on the ground that to grant such would be a contravention of section 204 of the Criminal Code.
[2] It is important to set out the full text of the refusal letter because there is disagreement as to the reasons underlying the refusal:
| I am in receipt of your letter of March 11, 1997. |
| Section 204 of the Criminal Code defines the legal exceptions to the gambling prohibitions of sections 201 to 203. Section s. 7(2) of the Pari-Mutuel Betting Supervision Regulations does not give me the authority to amend the provisions of s. 204 of the Criminal Code. I therefore decline your request to amend The Ontario Jockey Club's Pari-Mutuel Betting Permit. |
[3] Counsel for the applicant argues that the basis of this decision is the Executive Director's view that on line computer wagering does not come within the exception described in subparagraph 204(1)(c)(i) of the Criminal Code because the person placing the bet is not physically present at the race-course. Counsel for the applicant argues, however, that when an on line system is used, "bets made or records of bets made" are made on the race-course where the races are held. Alternatively, if both are not made on the race course, records of bets are so made and this is sufficient for the system to fall within the exemption set out in paragraph 204(1)(c) of the Criminal Code.
[4] Section 204 describes the circumstances in which the general provisions of the Criminal Code prohibiting the keeping of gaming houses, gaming and betting do not apply:
204(1) Sections 201 and 202 do not apply to
| (a) any person or association by reason of his or their becoming the custodian or depository of any money, property or valuable thing staked, to be paid to |
| (i) the winner of a lawful race, sport, game or exercise, |
| (ii) the owner of a horse engaged in a lawful race, or |
| (iii) the winner of any bets between not more than ten individuals; |
| (b) a private bet between individuals not engaged in any way in the business of betting; |
| (c) bets made or records of bets made through the agency of a pari-mutuel system on running, trotting or pacing horse-races if |
| (i) the bets or records of bets are made on the race-course of an association in respect of races conducted at that race-course or another race-course in or out of Canada, and, in the case of a race conducted on a race-course situated outside Canada, the governing body that regulates the race has been certified as acceptable by the Minister of Agriculture and Agri-Food or a person designated by that Minister pursuant to subsection (8.1) and that Minister or person has permitted pari-mutuel betting in Canada on the race pursuant to that subsection, and |
| (ii) the provisions of this section and the regulations are complied with. |
| (1.1) For greater certainty, a person may, in accordance with the regulations, do anything described in section 201 or 202, if that person does it for the purposes of legal pari-mutuel betting. |
| (2) For the purposes of paragraph (1)(c), bets made, in accordance with the regulations, in a betting theatre referred to in paragraph (8)(e), or by telephone calls to the race-course of an association or to such a betting theatre, are deemed to be made on the race-course of the association. |
| (3) No person or association shall use a pari-mutuel system of betting in respect of a horse-race unless the system has been approved by and its operation is carried on under the supervision of an officer appointed by the Minister of Agriculture and Agri-Food. |
...
(underlining added)
[5] Despite counsel for the applicant's able argument, subparagraph 204(1)(c)(i) must be interpreted in the light of subsection 204(2). The latter provision expressly "deems" tele-theatre betting and telephone account betting to be made on the race-course. If subparagraph 204(1)(c)(i) carries the meaning for which the applicant argues, subsection 204(2) would not be necessary. One assumes that legislators do not incorporate redundant and unnecessary provisions in legislation. This is a standard principle of statutory interpretation.
[6] It is conceded by both parties that the purpose of section 204 is to prohibit illegal off-track bookmaking and to ensure that betting occurs through a regulated and approved pari-mutuel system at the race-course. Requiring betting to occur at the racetrack is a way of making sure it is effectively regulated. The applicant is of the view that the on line system meets those policy objectives. The respondent is of the view that it does not.
[7] While the rules of statutory interpretation favour the respondent's position, it is not necessary for present purposes for me to make a finding with respect to the correct interpretation of subsection 204(1)(c). Counsel for the respondent has put forward persuasive arguments that regardless of the answer to that question, the present application must be dismissed.
[8] Counsel notes, in the first place, that the March 19, 1997 letter is not limited to subparagraph 204(2)(c)(i). It refers to section 204, in general, which requires that in order for the exemption described by paragraph in 204.2(c) to apply both subparagraphs (ii) and (i) must be satisfied. Subparagraph (ii) requires compliance with the Pari-Mutuel Betting Supervision Regulations, SOR/91-365 as amended. Section 53 of those Regulations states:
| 53. Except as provided in sections 76 to 89, no association shall accept bets or instructions to bet on a race from any person by telephone, telegram or any other means of communication that originates from outside the race-course at which the race is taking place. |
(emphasis added)
Sections 76 to 89 deal with the exceptions for telephone account betting and tele-theatre betting.
[9] Counsel for the respondent also points out that approval of an on line computer betting system is not, under the statute and regulations, something that would be authorized, in any event, by a permit or an amendment to a permit. In order to obtain a permit the requirements of sections 3(1)(a), 3(2) and 4-11 of the Regulations must be met. A permit is a basic requirement for pari-mutuel betting but it only deals with a limited number of matters. These include, for example, the type of bets that can be made at the racetrack (e.g. daily double, quinella, exactor) on a specified number of days and times during a particular year. Even when a permit has been obtained, however, the association still needs approval of the systems and facilities it proposes to use. Section 3 of the Regulations provides:
| No association shall conduct pari-mutuel betting unless |
| (a) the association has been issued a permit; and |
| (b) the pari-mutuel system and the facilities for its supervision and operation have been approved. |
[10] Counsel for the respondent points out that the applicant holds a valid permit. It is approval under paragraph 3(1)(b) that is required to conduct an on line betting system, not a permit pursuant to paragraph 3(1)(a). The applicant has not applied for systems approval under paragraph 3(1)(b) for the on line betting system it proposes to use. It is clear that an amendment to the permit would not be effective to accomplish the result the applicant seeks.
[11] For the reasons given, this application for judicial review must be dismissed.
B. Reed Judge
OTTAWA, ONTARIO
February 9, 1998