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"A criminal in one place, a gentleman in another" : regulating early Canadian gambling venues Bliss, James Robert Quartus 2000

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"A C R I M I N A L IN O N E P L A C E , A G E N T L E M A N IN A N O T H E R :  REGULATING E A R L Y CANADIAN GAMBLING VENUES  by  J A M E S R O B E R T Q U A R T U S BLISS  B . A . , The University of Western Ontario, 1992 L L . B . , The University of Victoria, 1997  A THESIS S U B M I T T E D IN P A R T I A L F U L F I L M E N T O F THE REQUIREMENTS FOR THE DEGREE OF  MASTER OF L A W S in T H E F A C U L T Y OF G R A D U A T E STUDIES, F A C U L T Y OF L A W  W e accept this thesis as conforming to the required standard  T H E UNIVERSITY OF BRITISH C O L U M B I A October 2000 Copyright, James Robert Quartus Bliss, 2000  UBC  Special Collections - Thesis Authorisation Form  Page 1 of 1  In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f the r e q u i r e m e n t s f o r an advanced degree a t the U n i v e r s i t y o f B r i t i s h Columbia, I agree that the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and study. I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y purposes may be g r a n t e d by the head o f my department o r by h i s o r her r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t copying o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be a l l o w e d without my w r i t t e n p e r m i s s i o n .  Department o f The U n i v e r s i t y o f B r i t i s h Columbia Vancouver, Canada Date  05  j\o  jot  http://www.library.ubc.ca/spcoll/thesauth.htrnl  10/3/00  ii  Abstract This thesis examines the legal history o f regulating early gambling venues in Canada. Two case studies illustrate the manner in which a 'spatially oriented' legal regime emerged: early Chinese gambling dens in Victoria and Vancouver, and racetracks in Ontario.  The term 'spatially oriented' recognizes that gambling law, both past and  present, regulates gambling places rather than the activity o f gaming itself. Moreover, the application o f the law was spatially inconsistent: early Chinese gambling dens received a discriminate amount o f police scrutiny while an express exemption in the criminal law insulated racetrack betting from sanction.  The theoretical perspectives o f  moral regulation and critical legal geography are used to show that discourses o f law, liberalism, race and morality are inextricably linked to 'place.'  In particular, the  relationship between law and place is highlighted to show how moral and ideological geographies may be both reflected in law, and created by law. The implication for early Canadian gambling venues was the development o f a reputation o f respectability for particular forums, such as the racetrack, versus the association o f criminal connotations with unlicensed social gambling clubs, such as the Chinese gambling den.  Table of Contents Abstract  .  Acknowledgments  .  .  .  .  .  .  .  .  ii  .  .  .  .  .  .  .  .  iv  Chapter One: Introduction, Theory, Methodology, Literature Review and Outline I:  Introduction  .  .  .  II: III: IV: V:  Theoretical Perspectives Methodology . . Literature Review . Outline . .  . .  .  . .  .  I: II: III: IV: V: VI: VII: VIII: IX: X:  .  Bibliography  .  .  .  . .  1  . .  . . .  4 7 13 17  .  20  .  .  .  .  .  .  . .  . .  20 21 . . 24 Venues i n Britain 28 . . 30 . . 32 39 . . 41 . . 55 .  .  58  . . Morality . . . . . . . . . .  58 60 62 64 69 73 86 88 89 95  .  Introduction . . . . English Background . . . Canadian Background . . Anti-Gambling Discourse and Protestant Challenging the Racetrack in England Challenging the Racetrack in Canada Canadian Aftermath . . . British Aftermath . . . The Canadian B i l l Summary . . . .  Chapter Four: Conclusion .  .  .  .  Introduction . . . Background . Chinese Games . . . A B r i e f History o f Regulating Gambling Early Gambling Legislation in Canada Chinese Gambling and the L a w . Analysis Cultural Context . . . Summary . . . .  Chapter Three: Challenging the Racetrack  .  . .  Chapter T w o : Suppressing Chinese Gambling Dens I: II: III: IV: V: VI: VII: VIII: IX:  .  1  .  . .  .  .  .  .  .  .  .  .  97 . 1 0 6  IV  Acknowledgments First and foremost I would like to acknowledge the guidance provided by m y thesis supervisor, Wes Pue. H i s assistance and encouragement throughout this project has been immeasurable. M y secondary reader Tina Loo also provided many helpful comments throughout the writing and rewriting stages. The following individuals also deserve acknowledgment for their assistance: Joel Bakan, Gillian Calder, John McLaren, Mark Stevenson, and L i z Twitchell. In addition, I would like to acknowledge the inspiration and support provided to me by m y family.  1  Chapter One: Introduction, Theory, Methodology, Literature Review and Outline  I: Introduction In A p r i l 2000, the director o f a Vancouver social club escaped conviction on a charge o f keeping a common gaming house because the prosecution could not prove he was the "keeper" o f the operation.  1  The club was frequented mostly by older persons  who passed their time playing poker. The lawyer for the club suggested to the media that the Crown was targeting the competition o f government-licensed charity casinos. The director o f the club warned that the demand for social gambling would likely create a black market i f enforcement o f the gaming house provisions continued: These clubs are going to go underground. There w i l l be no protection to the public - there w i l l be a lot o f criminal aspects to it. A t least out in the open, they can police these things. If they start running things like they do in Chinatown, they are going to open up a can o f worms. 2  Gambling is not illegal in Canada, but operating an unlicensed betting house or gaming house that is not a genuine social club is an indictable offence with a maximum of two years imprisonment; race-courses are excepted from the betting house and poolselling provisions o f the Canadian Criminal Code (the "Code"). Thus Canada's 3  gambling legal regime is spatially selective: rather than regulating gambling itself, the law regulates gambling places. The nature o f the venue and the type o f gaming activity it features determines whether or not it operates within the law. Moreover, as this introductory case demonstrates, whether a gaming venue attracts legal surveillance is dependent upon the discretion o f law enforcement personnel. The point o f this thesis  1  2  3  Salim Jawa, "Gambling going 'underground,'" The Province, April 6, 2000, A18. Ibid.  (1985), R.S.C, c. 46, sections 197(2) and 201(1).  however, is not to draw conclusions about the desirability o f the current regulatory framework. The significance o f the introductory case is its theme o f legal, moral, and racial distinctions in the places at which people gamble. The club director's statement regarding social gambling distinguishes between public venues, and dubious semi-public venues - open to the public - or to those ' i n the know,' yet operating contrary to the law, removed from the public view. Second, his mention o f "Chinatown" is linked closely with "criminal aspects," "underground" gaming, and difficulties in effective policing. A final point he raises is the inference that the public needs protection from such "underground" gaming clubs. The importance o f the club director's comments for the purpose o f this thesis is the timeless, and the placeless quality o f his remarks concerning the respectability and the policing o f particular gambling venues. H e is speaking in the year 2000, but his remarks would not seem out of place a century earlier in Vancouver: "Gambling is an organized vice o f extraordinary financial strength, and the Chinese especially are given up to its practice." N o r would they be out o f place in Britain where the racecourse betting 4  company, Tattersalls, was heralded b y one Member o f Parliament in 1902 as "respectable" and distinguished from other " i l l conducted clubs." Even in Sydney, 3  Australia in 1891, a Royal Commission saw fit "to make a diligent and full inquiry ... in  W. Peter Ward, "The Oriental Immigrant and Canada's Protestant Clergy, 1858-1925," (1974), 22 B.C. Studies, 40-55, at 47. Note 15 attributes the comments to Reverend S.S. Osterhout, Methodist superintendent of Oriental missions in British Columbia, (January 1919), Western Methodist Recorder. David Dixon, "Class Law: The Street Betting Act of 1906," (1980), 8 International Journal of the Sociology of Law 101-128, at 107. For the original source, see England, Report on the Select Committee of 4  5  the House of Lords on Betting (1901-1902), 445 H.C. 388.  3  the matter o f alleged illicit gambling and immoralities among the Chinese . . . and the alleged bribery or misconduct o f any members o f the Police force in relation thereto."  6  This thesis explores the historical origins o f Canada's spatially selective gambling regime. T w o case studies provide the narrative: the regulation o f Chinatown gambling dens in Victoria and Vancouver between 1900 and 1920, and the legal challenge to racetrack betting in Toronto between 1906 and 1910. I have selected these venues for discussion because on the same day in 1909, two amendments to the criminal law were introduced in Parliament targeting each respective venue. The provision relating to Chinese gambling dens passed that session with no debate. The racetrack bill went to a Special Committee and garnered significant media attention before its subsequent defeat after a protracted debate which transcended party lines; instead, Parliament enacted a legal exemption for betting at the track.  The lawmakers in favour o f exempting the  racetrack from criminal sanction relied upon the image o f ' B r i t i s h respectability,' coupled with liberal notions o f individual freedom in an effort to resist the moral reformers' campaign to criminalize racetrack betting. However, during the same debate, nobody argued that the liberty o f Chinatown gambling proprietors was encroached upon by the amendment to the criminal law that limited their personal property rights by increasing the power o f police to enter and search. The result was that the racetrack and the Chinese gambling den fell into different legal categories despite the fact that both held cultural significance for the patrons beyond mere entertainment. Thus the regulation o f betting became contingent upon the place where it occurred. A n individual could freely bet at the racetrack, but faced a fine or  New South Wales, 1891-1892 New South Wales Report of the Royal Commission on Alleged Chinese Gambling and Immorality and Charges of Bribery Against Members of the Police Force (Sydney: Charles  6  4  imprisonment for the same activity in a Chinese gambling den. This unequal legal treatment o f a similar activity conducted in different places, reveals how discourses o f morality, liberty and law not only structure social and spatial conflicts, but also reflect existing relations o f power and race embedded in popular conceptions o f "place."  7  II: Theoretical Perspectives The first perspective I use to explore the legal history o f Canada's gambling regime is the Foucaultian concept o f governance and its relation to law.  8  Within this  perspective I w i l l discuss a distinct type o f governance, moral regulation. M o r a l regulation is a practice o f governing that attempts to structure the possible field o f action o f others through the process o f self-government techniques that encourage ethical selfformation.  9  Particularly important is the governmental technique o f "dividing practices"  - the process o f defining who, what, and where are objects o f governance efforts.  10  Governing involves the interplay between power and resistance, which occurs within a field o f ' k n o w l e d g e ' .  11  'Knowledge' in this sense, refers to the existence o f a  discourse that serves as the regime o f 'truth' and provides the rationale for governmental  Potter, 1891-1892), at 19. The dynamic between power, racial discourse and place is explored in Kay Anderson, "The Idea of Chinatown: The Power of Place and Institutional Practice in the Making of a Racial Category," (1987), 7  77:4 Annals of the Association of American Geographers 580-598, at 580. Alan Hunt, Explorations in Law and Society: Toward A Constitutive Theory of Law, (London: Routledge  8  Inc., 1993), 301-333; Hunt and Gary Wickham, Foucault and Law: Towards A Sociology of Law as Governance, (London: Pluto Press, 1994); Nikolas Rose and P. Miller, Governing the Soul: The Shaping of the Private Self (London: Routledge, 1990); Rose and Miller, "Political Power Beyond the State: Problematics of Government," (1992), 43:2 British Journal of Sociology 173-205; Rose, "Governing "Advanced" Liberal Democracies," in Andrew Barry, Thomas Osborne, and Rose, (eds.), Foucault and Political Reason, (London: UCL, 1996); Rose and Mariana Valverde, "Governed by Law?" (1998), 7:4 Social and Legal Studies 541-551; Rose, "Governing Liberty," in Richard V. Ericson and Nico Stehr, (eds.), Governing Modern Societies, (Toronto: University of Toronto Press, 1999); and Davina Cooper, Governing Out of Order: Space, Law and the Politics of Belonging, (London: Rivers Oram Press, 1998). Mitchell Dean, "A social structure of many souls: Moral regulation, government, and self-formation," (1994), 19:2 Canadian Journal of Sociology, 145-167, at 155-156: Dean suggests that the process of the political subjectification of individuals into specified categories involves techniques and discourses of selfgovernance reducible to ethical self-formation. Hunt and Wickham, Foucault and Law, supra, at 94-95. 9  10  5  targets and the nature o f the techniques employed.  12  For instance, gambling, like other  vices such as prostitution and drunkenness, was often discussed by reformers i n moralized terms. Its Protestant opponents argued that individuals who could not control their betting urges were harmful to themselves, their families, the church, and b y extension, the rest o f society. Hence the moral dimension surrounding gambling was the result o f the "linkage posited between subject, object, knowledge, discourse, practices and their projected social consequences."  13  When non-coercive techniques such as  sermons, editorials and public education pamphlets had little impact on the spread o f commercialized gambling, moral reformers argued that a more coercive governmental strategy was justified: the use o f formal law to suppress public betting. The themes o f power, knowledge, surveillance and resistance are significant components i n analyzing the discursive linkages that constructed the racetrack as a respectable and legal gambling venue, and the Chinese gambling den as an immoral forum worthy o f suppression. However, moral regulation is not a predictive theory. It channels empirical study, but requires collateral theoretical support.  14  The usefulness o f the governance  perspective lies in the recognition that moral regulation involves the exercise o f power within a field o f knowledge constituted through discursive formation that involves the convergence, clash and marginalization o f competing discourses.  13  For the purpose o f  this thesis, the importance o f the moral regulation perspective is the recognition that diverse discursive elements combined and competed to produce different legal outcomes  " Ibid., at 12-13, and 87-92. u  13  Ibid., at 11. Hunt, Governing Morals: A Social History of Moral Regulation, (Cambridge: Cambridge University  Press, 1999), at 7. Valverde, "Editor's Introduction," (1994), 19:2 Canadian Journal of Sociology (Special Issue on Moral Regulation), vi-xii, at viii. Hunt and Wickham, Foucault and Law, supra, at 8-9. 14  13  6 for the two gambling venues studied. Furthermore, I suggest that discourses o f antiAsian sentiment, Protestant morality, Anglo-Saxon nationalism, law and liberalism, were both shaped by, and contingent upon physical and human geographic context, and similarly, spatial dimensions o f power. Therefore, the second perspective employed in conjunction with moral regulation is geographic, recognizing that the concept o f 'place' is more than just a "frozen scene" for human activity.  16  Pred writes:  It is the ever becoming o f what is seen as place and what takes place under historically specific circumstances where some institutional projects, and not others are dominant. It is power (be)coming into play(ce). . . . It is a process whereby the reproduction o f social and cultural forms, the formation o f biographies, and the transformation o f nature ceaselessly become one another, at the same time that time-space specific path-project intersections and power relations continuously become one another. 17  It is argued that law plays a particularly important role in this concept o f place as a process o f social construction, as in Hunt and W i c k h a m ' s words, law is "one o f the more voluble discourses which claims not only to reveal the truth, but to authorize and consecrate i t . "  18  This thesis shows that in matters o f moral regulation, law has the power  to render particular places 'immoral' and other places 'respectable' through the erection o f legal boundaries. A s critical legal scholars observe, legal discourse itself, despite an appearance o f universality, rationality, abstraction and determinacy, is contingent upon preexisting political representations, categorizations and ideologies. Valverde and others recognize 19  that particular spaces and locales acquire a moral reputation that is then imputed on those  Allan Pred, "Place as Historically Contingent Process: Structuration and the Time-Geography of Becoming Places," (1984), 74:2 Annals of the Association of American Geographers 279-297, at 279. 16  17  Ibid., at 292.  18  Hunt and Wickham, Foucault and Law, supra, at 12.  7  who occupy such spaces.  20  Thus, an investigation of the legal complex must extend  beyond internal texts and statutes to recognize that "legal categories are used to construct and differentiate material spaces which, in turn, acquire a legal potency that has a direct bearing on those using and traversing such spaces."  21  B y highlighting the different legal  treatment o f racetracks and Chinese gambling dens, this thesis provides an example o f law's contingency upon spatial representations, categorizations and ideologies.  Ill: Methodology A : Legal History From a methodological perspective, the legal history o f regulating gambling in Canada cannot be told without some recognition of the relationship between law and the broader cultural, ideological, and geographic context in which it is created and applied. Academic study is increasingly eroding the traditional boundaries o f disciplinary schools o f thought. Thus, an examination o f law in a historical context should encompass methodological tools beyond those in the narrow realms labeled as ' L a w ' and 'History.' Pue discusses the merits o f employing selective interdisciplinary frameworks in advocating the appropriation o f concepts, terminology, and methods that best fit with a  Rob Imrie and Huw Thomas, "Law, Legal Struggles and Urban Regeneration: Rethinking the Relationships," (1997), 34:9 Urban Studies 1401-1418, at 1404-1405? Valverde, "Editor's Introduction," supra, at x. Also see Man- Louise Adams, "Almost anything can happen: A search for sexual discourse in the urban spaces of 1940s Toronto," (1994), 19:2 Canadian Journal of Sociology, 217-232, at 218: "we also need to look at moral regulation as a consequence ... of discursive constructions of specific types of places as 'bad'." In addition, see Tina Loo and Carolyn 2 0  Strange, Making Good: Law and Moral Regulation in Canada. 1867-1939, (Toronto: University of Toronto  Press, 1997), at 149: "moral regulation was often expressed through the control of space." The notion of law as a complex of discourses, institutions, techniques and codes appears in Rose and Valverde, "Governed by Law," supra, at 546. Also see Hunt and Wickham, Foucault and Law, supra, at 39. The quotation regarding legal categories and space appears in Nicholas K. Blomley, Law. Space, and the Geographies of Power, (New York: The Guilford Press, 1994), at 54. 21  8  writer's predisposition/  2  That said, I recognize that the failure to critically engage  competing positions revealed by empirical research is a potential pitfall o f interdisciplinary methodology.  23  A s scholarship developed under the rubric o f "legal  history," writers began to distinguish between doctrinal, or internal legal history and progressive or external legal history, in which law is related to external social phenomena.  24  M c L a r e n and Foster articulate the danger of treating these sub schools as  mutually exclusive: Legal history that neglects the wider context risks misunderstanding or ignoring altogether the forces that shaped both the legal rules and the events to which they were applied. But, equally, legal history that slights cases, statutes, regulations, and the legal progression begs a crucial philosophical question by assuming without proof that the law ... is mere superstructure. 25  M c L a r e n and Foster's comments echo the "prospectus" for Canadian legal history put forth by Risk, who succinctly conceived o f legal history as elaborated by three overlapping elements: influences that shape law; the effect o f law; and the functions o f legal institutions.  26  Hence, in describing the legal history methodology I employ, I prefer  the term 'sociolegal history' as articulated by Knafla and Binnie: The trilogy o f law, society, and the state relates to the double role o f law: law as a mechanism o f the nation-state harbouring its idealized perspectives, as well as an expression o f the customs, rules, and regulations o f its communities. The importance o f the trilogy is to maintain two crucial perspectives: that the history o f the law as ideology 'upstairs' is best informed by how it works in practice 'downstairs'; and that one cannot write the history o f law in society without the W. Wesley Pue, "Theory and Method in the History of Law," Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History, (Ottawa: Carleton University Press, 1988), 23-28 at 24. Susan Binnie, "Some Reflections On the "New" Legal History in Relation to Weber's Sociology of Law," in Pue and Wright, Canadian Perspectives, supra, 29-42, at 29; and Pue, "Theory and Method." at 24-25. For example, see Robert Gordon, "Critical Legal Histories," (1984) 36 Stanford Law Review 57; and Wright, "Towards A New Canadian Legal History," (1984), 22 Osgoode Hall Law Journal 349. John McLaren and Hamar Foster, "Hard Choices and Sharp Edges: The Legal History of British Columbia and the Yukon," in McLaren and Foster, eds., Essays in the History of Canadian Law VI: British Columbia and the Yukon, (Toronto: University of Toronto Press, 1995), 1-27 at 5. R.C.B. Risk, "A Prospectus for Canadian Legal History," (1973), Dalhousie Law Journal 227 at 228. 2 2  2 3  2 4  2 5  2 6  9  archival records and the resulting knowledge o f the legal and customary institutions and traditions. 27  A s a sub school o f the law and society movement, sociolegal history examines the law in relation to broader social, economic, political and cultural forces.  A t the same  time, sociolegal history enables the dual perspectives o f analyzing the law in action, but within a realm beyond narrow legal institutions. This approach is particularly appropriate for studying the regulation o f gambling in Canada, as it was an area o f law shaped by broader societal concerns regarding class, religion and race.  B: Comparative Legal Culture Flaherty makes two arguments for writing Canadian legal history from a comparative perspective. His first point is that Canadian law and legal institutions were at various times, exposed to significant influence from Britain, the United States and France, and thus the need to evaluate external influences in addition to internal developments. Secondly, Flaherty notes that the adherence o f the Canadian judiciary to the principle of stare decisis meant that any innovative decisions were nonetheless made within the narrow framework provided by existing British precedents.  29  To the latter  point, I add that where Canadian judges resisted innovation by rigidly applying British precedents, they (whether consciously or not) imported the British cultural or ideological basis for such decisions. However, caution must be exercised by coming to such conclusions on a case by case basis: I do not assume that British law, culture and ideology transplanted itself seamlessly in the colonies and was applied in Canada without  Louis A . Knafia and Binnie, "Beyond the State: Law and Legal Pluralism in the Making of Modern Societies," in Knafia and Binnie, eds., Law, Society and the State: Essays in Modem Legal History, (Toronto: University of Toronto Press, 1995), 1-33 at 29. Jim Phillips, "Recent Publications in Canadian Legal History," (1997), 78 Canadian Historical Review, 238 at 239. 2 7  2 8  10  question or influence by local customs.  In this respect, DeCruz identifies an important  30  point o f error for comparative legal scholars: the desire to see a common legal pattern in different legal systems.  31  DeCruz recognizes Watson's concession that it is perfectly  natural and conceivable that different peoples in different countries had the same response to a specific legal problem; the pitfall is constructing a theory o f general legal development from such a  finding.  32  This paper employs comparative methodology to the extent that it discusses British gambling legislation and jurisprudence and describes the transplantation o f related legal doctrine and social discourse into Canada. In a narrow sense, I follow A l a n Watson's suggestion that comparative law is a useful tool to the legal historian in determining the source o f indigenous criminal l a w .  33  However, the comparative  methodology I employ examines law beyond the level o f comparing transplanted rules. In this regard, the approach developed by V a n Hoecke and Warrington, which emphasizes a theoretical analysis o f legal cultures and paradigms is a useful augmentation to Watson's methodology.  34  V a n Hoecke and Warrington argue that insights about a community's culture and ideology are essential for comparative legal studies.  33  In their view, a common legal  culture includes shared understandings on the following points: the relationship o f law to other social norms; a theory o f the hierarchy o f valid legal sources; a methodology o f law  David Flaherty, "Writing Canadian Legal History: An Introduction," in Flaherty, ed., Essays in the History of Canadian Law I, (Toronto: The Osgoode Society, 1981), 1-42 at 10. Knafia and Binnie in "Beyond the State," supra, attribute this observation to McLaren, at 11. Peter DeCruz, Comparative Law in a Changing World, (London: Cavendish Publishing, 1995), at 211. 2 9  j 0  j l  3 2  Ibid., at 220.  Alan Watson, Legal Transplants, (Edinburgh: Scottish Academic Press Ltd., 1974), at 106. Mark Van Hoecke and Mark Warrington, "Legal Cultures, Legal Paradigms and Legal Doctrine: Towards A New Model For Comparative Law," (1998), 47 International and Comparative Law Ouarterly 495-540. 3 3  jA  11  both in lawmaking and adjudication; a theory o f legitimation o f the law; a theory o f argumentation strategies (encompassing social, economical, political, ideological, and religious elements); and a common basic ideology dictating which social problems are deemed legal in nature.  36  Knafla and Binnie provide the following definition o f legal  culture: Legal culture, then, is a broad historical term that comprises a community's legal mind, and includes legal ideology as one aspect o f legal relations: culture implies those assumptions, beliefs, and customs that lie behind and inform its normative law. It provides the theoretical framework and historical context from which the law o f the community can be interpreted. 37  Since law is not created i n a social vacuum, law and legal culture are an inextricable aspect o f the general cultures o f the society to which they belong.  38  For the purposes o f  this study, it is sufficient to note that analyzing Canada's gambling laws through a comparison with those in Britain necessitates an approach beyond comparing statutory and case law i n order to gauge the underlying culture and ideology that shaped the law. C : Geography and Law The union o f critical legal studies and geographic theories o f social life is a powerful analytical device. B l o m l e y observes that the critical geographies o f law direct attention to the nexus between power and space i n l a w .  39  Bakan and B l o m l e y link law  and geography in the following manner: Once geographers accept that space is not a backdrop to political and social action but is, instead, a product o f such action, the role o f law becomes central to the analysis o f space. Legal discourse, as a form o f social discourse, represents space in various ways and, i n so doing, helps construct the social significance o f space.  Ibid., at 521.  Ibid., at 514-515. Knafla and Binnie, "Beyond the State," supra, at 12. Van Hoecke and Warrington, "Legal Cultures," supra, at 498. Blomley, Law, Space, and the Geographies of Power, supra, at 58.  12  ... The social and political nature o f space thus becomes a central concern for critical analysts o f l a w . 40  The mutually constitutive relationship between law and space suggests that the legal complex is constrained by geographic context, yet may also in some instances alter that context.  41  For instance, we see in chapter two the role that discriminatory law  enforcement played in representing Chinatown as an immoral place; and as chapter three shows, the dominant image o f the racetrack as a respectable venue ultimately impeded the universal application o f the criminal law to all commercial betting places. Critical Legal Geography affords a number o f methodological tools that reveal how law plays a powerful role in legitimating some places and illegitimating others. For instance, Bakan and Blomley characterize their study o f North American occupational health and safety laws as an exploration o f "the ideological conjunction o f discursive (in this case, legal) and spatial distinctions."  42  Similarly, Delaney recognizes the ability o f  judges to shape sociospatial relations by manipulating the spatiality o f a legal rule i n order to ensure the relevant conditions for a particular judicial interpretation. In addition, Delaney submits that the spatiality o f a rule itself justifies interpretations about places and by extension, the social consequences that flow from a particular interpretation.  43  Finally, Pue observes that this "insurrectionist" approach to legal geography permits a  4 0  Joel C. Bakan and Blomley, "Spacing Out: Towards A Critical Geography of Law," (1992), 30:3  Osgoode Hall Law Journal 661-690, at 687.  Benjamin Forest, "Placing the Law in Geography," (2000), 28 Historical Geography 5-12, at 9. Bakan and Blomley, "Spatial categories, legal boundaries, and the judicial mapping of the worker," (1992), 24 Environment and Planning:A 629-644, at 633. David Delaney, "Geographies of Judgment: The Doctrine of Changed Conditions and the Geopolitics of 41  4 2  4 3  Race," (1991), 83:1 Annals of the Association of American Geographers, 48-65, at 61.  13  circumvention o f the acontextuality o f legal reasoning, thus overcoming the operation o f anti-geographic legal discourse as a "placeless power in powerless places."  44  Thus, critical legal geography advocates the incorporation o f non-legal knowledge into the legal forum to provide spatial context.  43  Cooper presents a useful framework for  examining questions o f how "the spatial configurations through which relations o f power are constituted," became filled with ideology, under what conditions, to what end, and by whom.  46  She focuses on the particular location in which a confrontation takes place.  47  Second, she explores space's functioning as a discursive technique in two manners: the extent to which it is reified or despatialized by institutions, and where it is used symbolically to construct a social group's sense o f belonging or lack thereof. Finally, she 48 explores how space operates as a political technique in its material practices.  In sum,  the injection o f 'place' into social and legal analysis reflects its importance as a contextual tool: social conflict has a spatial dynamic that may influence, and be influenced by, individual and institutional practice.  49  IV: Literature Review At this point, I wish to raise a few points concerning the analysis o f historical material. Alford discusses the placement o f the comparative researcher in evaluating the law and legal history o f societies where social, political, economic, philosophical, and  Pue, "Wrestling With Law: (Geographical) Specificity vs. (Legal) Abstraction," (1990), 11:6 Urban Geography 566-585, at 577-578. Rose and Valverde, "Governed by Law," supra, at 548-549. Delaney, "Geographies of Judgment," supra, at 49. This seemingly common sense step is often absent from legal or regulatory decisions. Consider the differing perceptions of a person beating another with a stick in the street and the same incident occurring in the course of a hockey game.  4 4  4 5  4 6  4 7  48  Cooper, Governing Out of Order, supra, at 14-15.  4 9  Pue, "Wrestling with Law," supra, at 576; and in general, Anderson, "The Idea of Chinatown," supra.  14  religious underpinnings may be far removed from the writer's o w n .  50  The conclusion  Alford reaches is applicable for the legal historian analyzing the past through a lens constructed by present day values: Our very distance from other societies may yield helpful perspectives not readily available to insiders, but that vantage point also imposes upon us an obligation to be vigilant as to the ways in which the constructs that we have developed for ordering the world reflect assumptions and values that may not be shared by others. 51  Likewise, a thoughtful and careful discussion o f choices that historical actors made, perhaps based on race, class, or gender, requires vigilance in abstaining from judgment by today's norms. When interpreting their actions and written words, I am sensitive to the fact that historical actors operated within particular discourses and cultures. In so doing, I heed Marquis' comments regarding the methodological obstacles in gauging the opinions o f "common people" through sources such as newspapers, and the broader understanding o f law, society, and the state beyond immediate sources, that such an approach reveals.  52  One potential safeguard lies in researching sources  themselves. For instance, Rutherford's history o f Canada's nineteenth century press reveals the series o f mythologies that justified "emerging patterns of dominance."  53  The time period in which I am interested necessitates an evaluation o f the extent to which Canada's gambling law was influenced by that o f England. There is a plethora o f academic literature examining British gambling history, though a dearth o f Canadian writing in this area. For example, in 1898, Ashton examined the early history o f  5 0  WilliamP. Alford, "On the Limits Of "Grand Theory" In Comparative Law", (1986), 61:3 Washington  Law Review, 945 at 946. 51  52  Ibid., at 946-947. Greg Marquis, "Doing Justice to "British Justice": Law, Ideology and Canadian Historiography," in Pue  and Wright, Canadian Perspectives, supra, 43-69 at 60. Paul Rutherford, A Victorian Authority: the daily press in late nineteenth-century Canada, (Toronto: 5 3  University of Toronto Press, 1982), at 156.  1  gambling i n E n g l a n d .  54  D i x o n ' s book  From Prohibition to Regulation, Bookmaking,  Anti-Gambling, and the Law^ comprehensively examines the social and legal origins o f British gaming policy from 1840 onwards relying on a number o f primary sources such as Parliamentary debates, royal commission reports and newspaper accounts. The first seven chapters deal extensively with the role that class and moral reform movements played in forming and policing the law during the seminal period in which Canadian law developed. D i x o n ' s earlier work is also o f interest, particularly the article, "Class L a w " : The Street Betting A c t o f 1906".  56  The paucity o f Canadian secondary literature relating to gambling necessitates a reliance on primary sources. The House o f Commons Debates provide a measure o f how lawmakers viewed gambling. Dominion Crime Statistics o f the era reveal police patterns o f enforcement. The evidence discussed in Royal Commission and Parliamentary reports show what moral reformers, police officers, racetrack owners, and politicians saw as the salient issues. Literature produced by moral reform groups is particularly helpful in ascertaining the discourses o f the era, as are sermons such as Henry Francis Adams' "Sermon on Lotteries" delivered in Yarmouth in the 1890s.  5 4  57  In addition, useful micro-  John Ashton, The History of Gambling in England, (London: Duckworth, 1898, republished 1968).  " David Dixon, From Prohibition to Regulation, Bookmaking, Anti-Gambling, and the Law, (Oxford:  Clarendon Press, 1991). Dixon, "Class Law: The Street Betting Act of 1906," supra; and Dixon, "The Discovery of the Compulsive Gambler," in Z. Bankowski and G. Mungham (eds), Essays in Law and Society, (London: Routledge & Kegan Paul, 1980), 157-179; and Roger Munting, An Economic and Social History of Gambling in Britain and the United States, (Manchester: Manchester University Press, 1996). In my discussion of British gaming history, I rely heavily on Dixon's research of primary source literature: NAGL bulletins, parliamentary committee proceedings, parliamentary debates and newspaper reports. See also 5 6  Roger Munting, An Economic and Social History of Gambling In Britain and the United States of America,  (Manchester: Manchester University Press, 1996); and G. Robert Blakey, "Gaming, Lotteries, and Wagering: The Pre-Revolutionary Roots of the Law of Gambling," (1985), 16:2 Rutgers Law Journal 211. Henry Francis Adams, A Sermon on Lotteries, Yarmouth Nova Scotia: CHIM 08476, 189_. 5 7  histories exist which discuss gambling from the perspective o f the police, 58 and the Chinese.  59  The most comprehensive piece o f secondary literature on Canadian gambling, Campbell's doctoral dissertation "Canadian Gaming Legislation: The Social Origins o f Legalization,"  60  focuses primarily on the moral discourses surrounding horse racing from  1900 - 1925, documenting the factors that led ultimately to the legalization o f gambling. Campbell's study is an eminently useful historical examination o f Protestant antigambling discourse and its sources. However, Campbell commits an oversight by suggesting that Canada's first gambling legislation was an amalgamation o f existing British statutes into a general Act in 1886, and then "simply incorporated wholesale into the 1892 Criminal C o d e . "  61  In fact, Canada enacted  An Act respecting Lotteries in 1856,  An Act for Suppressing Gaming Houses in 1875, and An Act for the Repression of Betting and Pool-Selling and An Act for the Prevention of Gambling Practices in certain Public Conveyances i n 1877.  62  Thus in 1886, the amalgamation Campbell mentions was in fact  a reprint o f previously existing Canadian statutes i n the official "Revised Statutes o f Canada" series for 1886.  63  Moreover, these were not incorporated wholesale into the  1892 Code. Instead, i n 1892 there was a fundamental amendment to the betting and pool-selling provisions exempting racetrack betting from sanction, which fostered the  5 5  Marquis, "Vancouver Vice: The Police and the Negotiation of Morality, 1904-1935," in McLaren and  Foster, Essays in the History of Canadian Law, Volume VI, supra, 242-273. 3 9  McLaren, "Race and the Criminal Justice System in British Columbia, 1892-1920: Constructing Chinese  Crimes," in Blaine G. Baker and Jim Phillips, eds., Essays in the History of Canadian Law, Volume VIII: In  Honour of R.C.B. Risk, (Toronto: Osgoode Society for Canadian Legal History, 1999), 398-442. Colin S. Campbell, "Canadian Gaming Legislation: The Social Origins of Legalization," (unpublished doctoral dissertation, Vancouver: Simon Fraser University School of Criminology PHD Thesis, 1994). 6 0  6 1  Ibid., at 25.  (1856), S.C, c. 49; (1875), S.C, c. 41; (1877), S.C, c. 31; and (1877), S.C, c. 32. "(1886), R.S.C, c. 158. 6 2  17  growth o f commercialized bookmaking and in turn invoked legal challenges from concerned moralists after the turn o f the century.  64  It is m y objective to contribute to the literature by providing a historical narrative that demonstrates the role law played in the development o f Canada's spatially selective gambling regime.  In doing so, I aim to show that the contemporary distinctions between  'respectable' gambling venues and 'underground' clubs evolved from a historical process influenced by Canada's position as a fledgling nation within the British empire. Beyond this descriptive objective, I strive to contribute to the critical legal geography literature b y providing a further example o f the manner in which the creation and application o f law is anything but objective, and universal: it is contingent upon spatial context.  V : Outline This thesis explores the history o f Canada's gambling law to reveal how interwoven discourses o f liberty, morality and race played a central role in the process o f establishing, defining and socializing places.  65  The historical opposition to gambling i n  Canada is characterized as a programme o f moral regulation which sought to use the criminal law to suppress betting because it was contrary to the values o f a Protestant Anglo-Saxon nation. A s the two case studies w i l l reveal however, the law was not equally applied to all gambling places, thus resulting in a spatially selective legal regime. The history o f these legal distinctions in where Canadians gamble is a story o f how power and law socially construct place, with a simultaneous recognition that place is a  (1892), S.C, c. 29, s. 204(2). See chapter 3. See Pred, "Place as Historically Contingent Process," supra.  18  "vital structuring agent o f l a w . "  66  The case studies within explain how and why this  process occurred. The next chapter begins with a discussion o f Chinese games and their cultural importance in the formative years o f Chinatowns in Victoria and Vancouver. This is followed by a brief history o f regulating gambling in Britain and Canada, to introduce the legal and social context in which the practice o f policing gambling locales, as opposed to the activity itself originated. Next, the section on Chinese gambling and the law discusses the disproportionate level o f police surveillance that the Chinese gambling dens incurred, and the subsequent amendments to the Code that facilitated further scrutiny. The subsequent portion o f the chapter is dedicated to describing the nationalist cultural elements that characterized Chinatown as a distinct moral category: the Protestant moral reform movement and anti-Asian sentiment. The importance o f this chapter is its illustration o f the mutually constitutive relationship between law and place. Chinatown's image as a morally depraved community was the justification for uniquely powerful rights o f police entry and search, which further reinforced its reputation as a depraved community, sending Chinese gambling further 'underground' physically, and conceptually in the view o f the white majority. The third chapter overlaps with the second through a further description o f the origins o f the Protestant condemnation o f gambling. Intertwined with the history o f regulating racetracks in Ontario are the similar moral campaign and legal struggles that occurred in Britain, because of their unquestionable influence on the Canadian reformers and judiciary. The description o f the court cases concerning the meaning o f 'place' in the betting legislation serves to illustrate a second manner in the becoming o f place: the  6 6  Blomley, Law, Space and the Geographies of Power, supra, at 28.  19  manner in which the law, manifested through discursive strategies and judicial intervention, creates places and establishes boundaries.  67  The importance o f these  decisions in Britain and Canada becomes apparent in the aftermath o f political lobbying and debate over legislative reform, as reformers found their options constrained and directed within a particular geographical and cultural context.  68  In the final chapter, the theoretical perspectives o f governing morals and the geography o f law are revisited in order to tie together the two case studies. Foucault's observation that space is fundamental in the exercise o f power provides an appropriate recognition that social interaction occurs in complex, textured and unique places.  6 9  The  complex relationship between morality and classical liberal notions o f the role o f law i n regulating morality is revealed to be contingent upon place. The contrast between Chinese gambling dens and Ontario racetracks shows how space "filled with ideologies" can lead to the creation o f separate legal zones.  70  If law both affects space and is  materialized in space, then the governance o f Chinese gaming dens and Ontario racetracks was a product o f a web o f discourses influenced by physical, ideological and legal geographies which both created and shaped the "moral geographies" o f gambling.  71  The importance o f examining the history o f Canada's gambling laws from this geographic perspective is encapsulated in Bakan and Blomley's observation that through  6 7  6 8  6 9  Forest, "Placing the Law in Geography," supra, at 5. Ibid.  M. Foucault, "Space, Knowledge and Power," in P. Rabinow, ed., The Foucault Reader, (New York:  Pantheon Books, 1984), 239-256 at 252, and Loo, Making Law, Order and Authority in British Columbia,  1821-1871, (Toronto: University of Toronto Press, 1994), at 159. H. Lefebvre, "Reflections on the politics of space," (1970), Antipode, 30-37 at 31, as quoted by Bakan and Blomley, in "Spatial categories," supra, at 630. Blomley and Gordon Clark, "Law, Theory and Geography," (1990), Urban Geography, 11:5 433-446 at 440. The term "moral geographies" appears in James Kneale, "A Problem of Supervision: moral geographies of the nineteenth-century British public house," (1999), Journal of Historical Geography, 3337 0  71  20  "situating legal knowledge not only in time, but in space, we can more tellingly reveal both its power and its contingency."  2  72  Bakan and Blomley, "Spatial categories," supra, at 641.  21  Chapter Two: Suppressing Chinese Gambling Dens  They form, on their arrival, a community within a community, separate and apart, a foreign substance within, but not of our body politic, with no love for our laws and institutions; a people that will not assimilate or become an integral part of our race and nation. With their habits of overcrowding, and an utter disregard of all sanitary laws, they are a continual menace to health. From a moral and social point of view, living as they do without home life, schools or churches, and so nearly approaching a servile class, their effect upon the rest of the community is bad. ... They are not and will not become citizens in any sense of the term as we understand it. They are so nearly allied to a servile class that they are obnoxious to a free community and dangerous to the state. ' 1  Report o f the Royal Commission on Chinese Immigration, 1902.  I: Introduction This oft-quoted passage embodies a racial discourse that informed 'white' attitudes toward the Chinese and Chinatown at the turn o f the century in British Columbia. The regulation o f Chinese gambling dens constituted one aspect o f a wider systematic programme o f governing Chinese immigrants i n Canada. The field o f knowledge used to justify this strategy embodied discourses o f nationalism and Protestant moral reform w h i c h culminated i n an ideology o f anti-Asian sentiment. The result was the social construction o f 'Chinatown' as a white European ideal reflecting images o f uncleanliness, godlessness, vice and depravity - a racial, moral and spatial 'other'.  74  B y virtue o f their location within Chinatown, gambling dens were similarly defined b y dominant attitudes concerning the perceived immorality o f the Chinese. The significance o f "Chinatown" and Chinese gambling dens as perceived, was the "social force and material effect" in mutually being shaped by, and influencing, institutional  7 j  Canada, "Royal Commission on Asian Immigration 1902, Report," Sessional Papers 1902, No 54 at  278. Anderson, "The Idea of Chinatown," supra, at 594. 7 4  22  practices by Vancouver's c i v i l authorities.  75  Anderson suggests the following  consequence o f this process, which is certainly applicable to Chinese gambling dens: "Chinatown" accrued a certain field o f meaning that became the justification for recurring rounds o f government practice in the ongoing construction o f both the place and the racial category. . . . B y sanctioning the arbitrary boundaries o f insider and outsider and the idea o f mainstream society as "white," the levels o f the state have both "enforced" and "propagated" a white European hegemony. 76  The implication for Chinese gambling dens i n British Columbia was a disproportionate level o f police enforcement practices in an ongoing effort to morally regulate Chinatown and its residents. Thus we see the mutually constitutive relationship between law and place: Chinatown and its immoral reputation attracted legal surveillance, and in turn, led to amendments to the criminal law, and an enduring popular image o f Chinese gambling associated with 'underground' criminal operations. II: B a c k g r o u n d  In 1848, the discovery o f gold in California brought approximately twelve thousand Chinese to work the mines over the subsequent four years o f the gold rush.  77  Chinese immigrants arrived in British Columbia following the discovery o f gold in the Fraser River basin i n 1858. Some came directly from domestic poverty i n H o n g K o n g or China, and approximately 2,000 migrated north as the news o f gold in British Columbia reached California, where Chinese miners already faced local hostility.  78  The Fraser  Valley gold rush ended quickly, and the mining population dropped from 5,000 to 600 i n 1859, mostly consisting o f Chinese working abandoned claims to avoid the licensing  Ibid., at 581. Ibid., at 584-585. Peter Li, The Chinese in Canada, (Oxford: Oxford University Press, 1998), at 16. ' Ward, White Canada Forever: Popular Attitudes and Public Policy Toward Orientals in British Columbia, (Montreal: McGill-Queen's University Press, 1978), at 24; David Chuenyan Lai, Chinatowns: Towns Within Cities In Canada, (Vancouver: University of British Columbia Press, 1988), at 15; and 73  76  7 7  8  23  fee.  /y  A second rush in the Cariboo region in 1862 provided more mining work for  Chinese as well as employment cutting roads and trails. B y 1865, the gold rushes ended, and the economy teetered towards depression. But between 1881 and 1884, the immigration level surged, as 15,701 Chinese workers arrived in Victoria to assist in building the railway, fostering a paranoia that the Chinese would soon surpass the white population. In 1881, 4,350 Chinese had settled in British Columbia, comprising nine percent o f the population. B y 1884, the number had doubled.  80  A number o f organized groups opposing the Chinese presence in British Columbia formed after 1873 to pressure politicians to address the immigration issue and pass restrictions on Chinese labour. Initially, no legal distinctions operated between the Chinese and European colonists. The Chinese were afforded the same rights, liberties and privileges under the law as any other resident o f the province.  81  However, the litany  o f discriminatory legislation that local and provincial governments eventually enacted or attempted to enact before being struck down by the courts or disallowed b y the governorgeneral, is too voluminous to describe in detail here.  It is sufficient to list the rights  denied, and obligations imposed on Chinese residents between 1872 and the 1923  Anderson, Vancouver's Chinatown: Racial Discourse in Canada, 1875-1980, (Montreal & Kingston:  McGill-Queen's University Press, 1991), at 34. Lai, i&W., at 21. Census statistics reproduced in Lai, ibid-., at 41. 7 9  8 0  8 1  Patricia Roy, White Man's Province. British Columbia Politicians and Chinese and Japanese  Immigration 1858-1914, (Vancouver: University of British Columbia Press, 1989), at 1. See in particular, Bruce Ryder, "Racism and the Constitution and the Constitutional Fate of British Columbia Anti-Asian Legislation," (1991), Osgoode Hall Law Journal, 619-670; and McLaren, "The Burdens of Empire and the Legalization of White Supremacy in Canada, 1860-1910," in W.M. Gordon and 8 2  T.D. Fergus, eds., Legal History in the Making: Proceedings of the Ninth British Legal History Conference,  (London: The Hambledon Press, 1991), 187-199. Also see McLaren, "The Early British Columbia Supreme Court and the "Chinese Question": Echoes of the Rule of Law," in Pue and Gibson, eds., Glimpses of Legal History, (Winnipeg: Legal Research Institute, 1991) 111-153; Li, The Chinese in Canada, supra, at 32-43; Ward, White Canada Forever, supra, at 55-61; Harry Con, Ronald J. Con, Graham Johnson, Edgar Wickberg, and William E. Willmott, From China to Canada: A History of the  24  enactment o f the  Chinese Immigration Act: various forms o f discriminatory taxation; S3  bans on immigration; high tonnage charges on ships carrying immigrants; bans on working on public works and utilities; bans on working for transportation companies; holding a logger's license or holding skilled jobs in the coal mines and positions i n law and pharmacy; denial o f the franchise - which precluded holding municipal and provincial office, serving as a school trustee, or jury duty; denial o f the right to acquire Crown land, hold a liquor license or divert water from channels; and separate schooling for Chinese children. O f greater interest is the language used to introduce such legislation, because o f its imagery o f a morally ungovernable people: Whereas the incoming o f Chinese to British Columbia largely exceeds that o f any other class o f immigrant, and the population so introduced are fast becoming superior i n number to our own race; are not disposed to be governed by our laws; are dissimilar in habits and occupation from our people; evade the payment o f taxes justly due to the Government; are governed by pestilential habits; are useless i n instances o f emergency; habitually desecrate graveyards by the removal o f bodies therefrom; and generally the laws governing the whites are found to be inapplicable to Chinese and such Chinese are inclined to habits subversive o f the comfort and well being with the community. 84  In relation to the governments' official anti-Asian discourse, the popular sentiment was even more hostile. During 1883, there were several incidents o f violence between whites and Chinese workers, primarily due to labour strife.  85  Riots i n 1887 and  1907 vandalized Chinese property and made it clear that they were not welcome i n the province. But the 1907 riot was not just about labour concerns, as at least two Protestant church figures lectured to the Asiatic Exclusion League with rhetoric about the immoral  Chinese Communities in Canada, (Toronto: McClelland & Stewart, 1982), at 42-59; and Anderson, Vancouver's Chinatown, supra, at 47-61.  "(1923), S.C, c. 38. 8 4  An Act to Regulate the Chinese Population of British Columbia, (1884), S.B.C, c. 4, preamble. Quoted  in McLaren, "The Burdens of Empire," supra, at 187. Con et al, From China to Canada, supra, at 50-51.  25  Chinaman.  86  With their foreign games conducted in the backrooms o f shops, restaurants  and laundries, these "inveterate gamblers" and their 'underground' dens became perceived as a threat to the morals and 'Britishness' o f the non-Chinese population.  87  I l l : Chinese Games Chinese labourers brought the games 'fan tan' and 'pak kop piu' to North America.  88  The latter, also known as the Chinese Lottery, was taken up by western  labourers who worked with the Chinese. Pak kop piu operated in America as a well organized syndicate: drawings took place nightly after businesses and 'runners,' sold groups o f tickets. Each ticket depicted eighty Chinese characters from which the purchaser usually selected ten by dotting each character with a pen. For the drawing, eighty pieces o f paper, each representing one o f the characters, were divided into four bowls. One bowl was designated as holding the winning characters, the twenty pieces o f paper were posted on a board in the office, and ticket holders won according to how many characters matched their ticket (less a percentage i f the ticket was sold through an agent). Typical odds on a dollar bet might be as follows: For For For For For For  5 matching characters, 6 ... 7 ... 8 ... 9 ... 10 ...  89  $....2.00 ....20.00 ...200.00 ..1,000.00 ..1,500.00 ..3,000.00  Ward, White Canada Forever, supra, at 68. The church figures were Reverend Dr. Fraser and Reverend G.H. Wilson of the St. Michael's Anglican church: Ward, "The Oriental Immigrant," supra, at 51. The term "inveterate gamblers" appears in Canada, "Royal Commission on Chinese Immigration, 1885, Report and Minutes of Evidence," Sessional Papers 1885, No. 54a at lxxix. Stewart Culin, The Gambling Games of the Chinese in America, (Philadelphia: University of Pennsylvania Press: 1891, republished by Las Vegas: Gambler's Book Club, 1972), at i. Ibid., at 7-11. 8 0  8 7  8 8  89  26  The following account o f Victoria's English residents playing pak kop piu sometime between 1880 and 1914 appears in the British Columbia Provincial Archives' sound heritage aural history program: Y o u ' d go down to these certain stores, i f you knew them, and they'd give you a sheet o f paper, sort o f tissue paper, with about, oh, 30 or 40 Chinese characters on it with about four or five different lines across it. Y o u took a paint brush on the counter there [and filled it in]. They paid you cash down, but they would no sooner get to one lottery, bring the winning ticket in, then the Chinaman you were dealing with, he'd say: " A l l right, 10 minutes now Hong K o n g - Hong K o n g . " So you'd be tempted to fill in another ticket for the succeeding one. This went on all day. Each lottery was called Hong K o n g or Shanghai or Canton, they were always coming in 10 or 15 minutes so they would hold you there. We very seldom won, but sometimes you could win, oh, maybe 75 or 80 cents. But I say that as far as I could see they were scrupulously honest. 90  The structure o f pak kop piu should be familiar to those who frequent contemporary public houses i n British Columbia that feature the video lottery game ' K e n o , ' in which patrons select ten numbers from a ticket o f eighty numbers for draws every quarter hour. In the early 1930s, the casinos in Reno, Nevada instituted pak kop piu but first changed its name to "Race Horse Keno," replacing the Chinese characters with numbered ping pong balls and announcing each selection as a jockey riding a named horse.  91  It is noteworthy that the Chinese game suppressed through the 1920s in Canada  became palatable to white gambling licensors when placed i n culturally recognizable and respectable forms such as horses and numerals. In San Francisco's Chinatown o f the nineteenth century, fan tan dens stationed a barker outside the doors encouraging Chinese passers by to " B u y fan tan and make  As per Major Monteith in Janet Cauthers, (ed.), A Victorian Tapestry: Impressions of Life in Victoria, B.C. 1880-1914, (Victoria: British Columbia Provincial Archives, 1978), at 27-28. The exact date of the quotation is not provided. Gambler's Book Club, "Introduction" in Culin, The Gambling Games of the Chinese in America, supra, at i. The "race horse" portion was dropped in response to evade state legislation outlawing off-track betting in 1951. 91  5  s  27  m o n e y . F a n tan, translated as "repeatedly spreading out," involved covering a pool o f Chinese coins with a cup and placing o f a variety o f bets on the remainder o f coins after the pool was divided into piles o f four by a tapered black rod; essentially, one was simply betting on whether a number from zero to three might arise.  93  Typically, fan tan dens  operated in the basement or back rooms o f legitimate businesses and paid a share o f profits to the store owner.  94  Conducted between 1888-1891, Culin's study o f Chinese  gambling in America suggested that Chinese gambling was a cultural pastime no less worthy than the games that others played: The custom o f gambling is often looked upon as one o f the distinctive traits o f the Chinese, and as such is almost invariably commented upon when any reference is made to them in casual speech. In the opinion o f the writer, it may be regarded as a concomitant o f their present state o f culture, rather than as having any special ethnic significance. The gambling instinct is one that exists in a strong degree among many peoples, and even with us, although somewhat repressed in its grosser forms by legislation, constantly exhibits itself as one o f the moving passions o f our race and times. N o doubt the games described in the foregoing account as current among the Chinese laborers i n the United States w i l l be displaced in time by speculations and amusements more in conformity to the laws and customs o f their adopted country, with the result, it might be supposed, of somewhat abating vulgar prejudice against these interesting people, and establishing their claims to fairer treatment at the hands o f their fellow mortals. 95  Indeed, for impoverished and lonely labourers in Vancouver's early Chinatown, gambling was a respectable socially unifying activity.  96  M c D o n a l d quotes an elderly  gentleman recalling, "there was no family, everyone was single. I f you went to the  Culin, ibid., at 1. Ibid., at 1-5. Betting on a remainder of dividing a pool by four yielded more than four possible bets (remainders from zero to three) much as roulette affords a number of betting options by colour, row or range of numbers. For instance, players could bet on the remainder and receive four times their wager upon winning. Or, they could place a bet such that they doubled their money on a remainder, or received their bet back for a result on either side (a dollar bet on "two" would pay two dollars for a remainder of two, one dollar for a remainder of one or three and nothing for a remainder of zero). /to/., at 5. 9 2  9 j  94  9 5  Ibid., The Gambling Games, at 15.  Anderson, Vancouver's Chinatown, supra, at 79; Lai, Chinatowns, supra, at 195; and Con et al, From China to Canada, supra, at 69.  9 6  28  gambling house, you could talk and laugh. Where else could we g o ? "  97  In Victoria's  OR  Chinatown, fan tan was the most popular form o f indoor entertainment. Fan tan was not illegal in British Columbia, but the use o f any house or room for carrying on the business o f gambling contravened the law. In addition, playing in, or looking on while others played in a gaming house, constituted a summary conviction offence.  99  One implication o f regulating gambling venues rather than the activity itself,  was that law enforcement officials possessed discretionary power in distinguishing between legal gaming that took place privately, and illegal gaming that took place in a house or room 'used for the purposes o f carrying on the business o f gambling'. In British Columbia, Chinatown police officers did not belabour the distinction. Before discussing Chinese gambling, the police, and the law, a brief history o f Britain's gaming regulatory regime should be introduced, because it acted as the model for subsequent Canadian law. Concomitant with regulating gambling places was the development o f "moral geographies" based upon the physical nature o f the venue and the individuals who frequented i t .  100  For example, lower class gambling clubs in East  London - the British equivalent o f Chinese dens - were known as "curses to the community," while the racetrack attracted those o f a "gentlemanly bearing."  101  Such  attitudes became embodied in inconsistent policing patterns, illustrating the influence o f class and power upon the British law, and the extent to which such relations contained a spatial contingency. 9 7  Robert A.J. McDonald, Making Vancouver: class, status, and social boundaries, 1863-1913,  (Vancouver. U.B.C. Press, 1996), at 216. Lai, The Forbidden City Within Victoria, (Victoria: Orca Book Publishers, 1991), at 40. (1892), S.C, c. 29, sections 196-197 and 199. See Kneale, "A problem of supervision," supra. Clapson, A Bit of A Flutter, at 25, and George Cruikshank, The Betting Book, (London: W. & F.G. Cash, 1852), at 12, respectively. 9 8  9 9  1 0 0  101  29  IV: A Brief History of Regulating Gambling Venues in Britain The practice o f gambling i n England dates back to at least the twelfth century i n which John o f Salisbury condemned the "damnable art o f dice-playing."  K i n g Richard  I issued an edict in 1190 forbidding anyone below the rank o f Knight to play any game for money: Knights and clergymen's wagers were capped at twenty shillings per day, and the K i n g was exempt.  103  Britain's first gambling statute in 1388 instituted the enduring  pattern o f selectively regulating the people that gambled rather than prohibiting the activity itself, directing labourers and service men diverted b y "importune games" to cease and practice their archery - a concern mentioned in the law through the m i d sixteenth century.  104  B y 1541, archery continued to be the concern in the Acte for Mayntenance of Artyllaire and debarringe of unlawful Games, pursuant to which keeping a gaming house for gain was first outlawed, as were games that involved the use o f m o n e y .  105  During the  Interregnum, gambling was prohibited because the Puritans believed that dice and cards "stirred up passions" amongst the Catholic clergy and exacerbated other forms o f sinful behaviour such as "drunkenness, whoredom and w r e s t l i n g . "  106  W i t h the restoration i n  1660, gambling flourished, especially among the aristocracy, with K i n g Charles II taking the lead as a passionate better on horses.  IU  107  " Ashton, The History of Gambling, supra, at 12-13. Munting in An Economic and Social History of  Gambling, supra, says at 7-8 that by the twelfth century, ten different dice games existed, the most popul; being "hazard", a precursor to the modem game of craps. Ashton, ibid. (1388), 12 Rich. 2, c. 6, and (1541-2), 33 Hen. 8, c. 9. (1541-2), 33 Hen. 8, c. 9. 103  104 105  1 0 6  Munting, An Economic and Social History of Gambling, supra, at 1.  107  Blakey, "Gaming Lotteries and Wagering", supra, at 21.  30  Industrial revolution in the eighteenth century brought with it a surge in social gambling clubs and betting on a variety o f sports and games. This increase was assisted in part by bribery and lax law enforcement, and also in part by a legal regime that sought to regulate only fraudulent games and cheating.  The upper class and royalty  frequented ornate social clubs, betting stakes upwards o f ten thousand pounds, and even wagering entire estates at these "gold and silver h e l l s . "  109  One W h i g member o f  Parliament died a pauper due to a heavy gambling addiction at the high-end London club, Almack's.  1 1 0  Meanwhile, London's East E n d housed a number o f "seamy dens" and  pubs that catered to the city's young workers' betting interests.  111  Political and social  clubs for working men soon became overtaken by beer and betting in "copper hells." B y the mid-nineteenth century, the prominence o f the expensive clubs lessened as gambling increasingly faced moral scrutiny and the aristocrats' disposable income diminished after generations o f profligate spending.  113  In 1852 George Cruikshank, a moral reformer, published a thirty-two page booklet ranting against the evils o f betting, calling for stronger legislation and warning "geese" about the "sly foxes" that ran the betting offices.  114  In The  Betting Book,  Cruikshank takes the reader through the streets o f London, pointing out the various venues in which different classes o f folk gambled. A t the betting office, sporting  See (1541-2), 33 Hen. 8., c. 9; (1710), 9 Anne, c. 6; (1728), 2 Geo. 2, c. 28; and (1802), 42 Geo. 3, c. 119.  108  1 0 9  Munting, An Economic and Social History, supra, at 21.  1 1 0  Blakey, "Gaming Lotteries and Wagering," supra, at 221.  "' Ibid., at 220-221 and Munting, An Economic and Social History, supra, at 20. Clapson, A Bit of A Flutter, supra, at 25.  1 1 2  " Munting, An Economic and Social History of Gambling, supra, at 21. J  1 1 4  Cruikshank, The Betting Book, supra. Other books issued by the same publisher included Stop Thief-  Hints to Housekeepers to Prevent Housebreaking and arranged to popular airs, The Book of Temperance Melody.  31  literature provided odds for off-track betting and to Cruikshank's disgust, gin was sometimes served. A t a sporting pub, "butchers, bakers, fishmongers, oilmen and the like" gambled and "drank their lives away." A t a social club, "men o f high connexions" gambled at cards in a "magnificent" and "splendid" room. Behind a "coal and tater shed" down a "by-street," individuals took bets. A n d at the horsetrack, Dukes, Lords and lawmakers bet on the r a c e s .  115  Cruikshank described the patrons as follows:  This class have also a literature and a language o f their own, their Racing Calendars and Sporting Magazines, as well as a costume o f their own, always varying in some peculiarity from the "fashion o f the day;" it is in most cases, certainly, a manly style, and it well becomes the bearing o f some o f its wearers, very unlike that poor little "snob" we saw sucking the bone end o f his "whip stick" as we came along. Yes, yes, there is a manly and a gentlemanly bearing amongst these members o f the sporting community . . . [Italics in original] 1 1 6  The different social status and structure o f gambling venues in Britain led to blatantly discriminatory law enforcement practices. Upper class venues managed to avoid significant scrutiny by operating ostensibly as "social clubs," whereas the "seamy dens" o f London's East E n d could not make such pretensions. A similar pattern emerged in Canada, angering moral reformers in both countries and culminating in a campaign against the most public o f gambling venues, the racetrack. From the British history o f regulating gambling, it is clear that one aspect o f the accompanying moral discburse was contingent upon the particular venue and the people it attracted. This would have dire consequences for the despised Chinese o f early British Columbia.  V: Early Gambling Legislation in Canada The Dominion o f Canada's first gambling legislation, the 1875 Act for the Suppression of Gaming Houses, gave police the power to obtain authorization from the  115  Ibid., 12-16.  116  Ibid., at 12.  32  presiding Police Magistrate to break down doors, seize gaming instruments and arrest all persons found within a gaming house."  7  The account o f the government debate in  Hansard mentions the existence o f a similar law in England and continues: This vice might not be so prevalent in our country as in some other countries, but it was assuming proportions in this country, especially in some o f the frontier towns and villages, where it was customary for persons to come from the other side to carry on gambling with impunity within our borders, because the arm o f the law was too weak to reach them here. The reference to the "other side" o f course refers to the United States o f America, where there too, an organized moral reform movement began lobbying for anti-gambling legislation in many states as early as the 1850s.  119  A s legislation in Britain, Canadian gambling provisions regulated places, and by extension, particular peoples as opposed to gambling itself. For example, the 1877 Act  for the Prevention of Gambling Practices in certain Public Conveyances* was enacted 20  to "bring to justice and punish 'three card monte' players on railroads," much to the chagrin o f one western M . P . who suggested that card-playing was essential to the happiness o f miners riding the r a i l s .  121  Sir John A . MacDonald suggested the law was  too strict i f it applied to respectable people playing cards for a small sum. Others thought the intention o f cheating ought to be proven. Nonetheless the Act passed, providing for enforcement by the railway staff under the threat o f a hundred dollar fine.  (1875), S.C, c. 41. An act prohibiting lottery schemes was passed in 1856: (1856), S.C, c. 49. Canada, Debates of the House of Commons, (Ottawa: Queen's Printer, 1875), at 804-805. For example, the New York Association for the Suppression of Gambling was created in 1851 and succeeded in encouraging the criminalization of gambling establishments the same year: Robert J. Martin, "Historical Background," in UNLV International Gaming Institute, ed., The Gaming Industry: Introduction and Perspectives, (New York: John Wiley & Sons, 1996), 1-48, at 12. In Washington state, anti-gambling legislation was passed in 1855 and the standard moral reform issues of temperance, sabbath observance and gambling surfaced in 1861: Bradley J. Hillis, "Gambling in Early Washington: A Legal History, 18501932," (unpublished M.A. Thesis, University of Washington, 1995), at 1-5. (1877), S.C, c. 32. Canada, Debates, 1877, at 338. 117  118  1 1 9  1 2 0  121  The railway gambling bill debate is an example o f the moral uncertainty with which Parliament grappled in enacting legislation that preceded the height o f the moral reform movement in Canada began to come into its own. The regulation o f gambling in Canada became a contested process as it became apparent that the patrons o f particular venues would mount effective political campaigns to resist moral reformers' efforts to outlaw their favourite gambling venues. In Chapter Three, we w i l l see how lawmakers used legislation to erect a boundary to protect the racetrack from sanction, officially preserving its reputation as a 'respectable' betting forum. In the section below, the process o f discriminate law enforcement converged with dominant cultural attitudes regarding Chinatown to enduringly define Chinese gambling dens as immoral dens o f iniquity.  VI: Chinese Gambling and the Law The Chinese gambling den did not become a great concern for law enforcement agents until after the turn o f the century. Victoria Police Court records reveal only ten Chinese men charged with unlawful gaming in 1879, and none between 1880-1884.  122  The archives o f the British Columbia Attorney General discuss one case in each o f 1895 and 1896, and again only one in 1 9 0 1 .  123  In 1898, o f the 42 convictions for gambling-  related indictable offenses i n British Columbia, only three were listed as "foreigners."  124  Evidence presented at the 1885 R o y a l Commission on Chinese Immigration suggested that Chinese gambling could not be suppressed, particularly if, as one witness  j  2 2  Canada, "Royal Commission on Chinese Immigration, 1885," supra, at 383-388.  Con et al, From China to Canada, supra, at 69. Canada, "Criminal Statistics 1898," Sessional Papers 1899, No. 8c. The remainder were Canadian, American and Irish. However, the fact that racially categorized crime statistics were kept at all reveals'a belief held by the government that racial crime was an important enough issue to merit annual surveillance. 124  34  suggested, the police "are in the pay o f the man who runs the gambling-hell."  The  125  Commission concluded that i f the police carried out the law properly, the evils o f gambling (and prostitution) might be greatly lessened, as might the numbers o f those attending - an attitude towards law enforcement that persisted through the early twentieth century, as did accusations o f graft.  126  Regulating vice in Vancouver was a "negotiated  process," as police and moral reform interests clashed over the extent to which the law should be enforced.  127  After the turn o f the century, due to a policy introduced in 1911 to raid the gambling halls a few times each month, "but not drop any other work for this purpose," police raids on Chinese gambling joints were episodic rather than consistent.  128  Episodic  or otherwise, i f gambling raids occurred, it seemed to have been consistently conducted against 'foreigners,' invariably, the Chinese. D o m i n i o n Statistics for British Columbia gambling indictable offenses for which race was listed reveal the f o l l o w i n g : YEAR  TOTAL CONVICTIONS  129  FOREIGNERS CONVICTED  1902  69  62  1903 1904 1905 1906 1907 1908 1909 1910  incomplete reports incomplete reports 211 199 83 137 172 . 47  incomplete reports incomplete reports 166 180 62 74 81 45  125  1 2 6  Canada, "Royal Commission on Chinese Immigration 1885," supra, at lxxix-lxxx. See generally, Marquis, Policing Canada's Century: A History of the Canadian Association of Chiefs of  Police, (Toronto: University of Toronto Press, 1993), at 84-95; and Marquis, "Vancouver Vice," supra, at 246. Marquis, "Vancouver Vice," supra, at 267. McLaren, "Race and the Criminal Justice System in British Columbia," supra, at 414. The quoted policy appears in Marquis, "Vancouver Vice," supra, at 248. Canada, "Criminal Statistics," Sessional Papers. Note, that these statistics are solely for indictable convictions for which race was listed. The statistics reveal that in any given year, race was listed 85-100% of the time. No race breakdowns are available for summary conviction offenses. 1 2 7  128  1 2 9  35  YEAR  TOTAL CONVICTIONS  1911 1912 1913  42 109 113  FOREIGNERS CONVICTED 38  100 89  A n important factor to consider when evaluating the disproportionate raids against foreigners is McLaren's finding that police policy underwent a change with the 1912 appointment of Police Chief Mulherne. Mulherne was an avowed enemy o f Chinese gambling. In 1913, he created a "moral reform squad" which included an anti gambling unit that produced a dramatic increase in arrests, prosecutions, and convictions from its constant raids o f C h i n a t o w n .  130  The effect o f the moral reform squad's creation is especially apparent in summary conviction statistics, though no breakdown for race is available. In the years preceding its creation, summary convictions for gambling offenses in British Columbia usually numbered less than one hundred. In 1912, the number was 925; in 1913, 1195; i n 1914, 1573; and in 1915, 1978. The number consistently remained between five and seven hundred until the end o f W o r l d War I when it surged again into the low thousands until 1930.  131  If the breakdown by race for summary convictions is comparable to the  indictable offenses, Chinese gamblers faced a significant level o f police scrutiny. G i v e n that there is evidence o f promiscuous gambling activity on the part o f all classes o f the white population that was widely ignored by the police, it was also a disproportionate amount of scrutiny for the Chinese.  132  McLaren, " Race and the Criminal Justice System," supra, at 415; and Anderson, Vancouver's Chinatown, supra, at 94.  Canada, "Criminal Statistics," Sessional Papers for the statistics until 1918. For statistics of Vancouver gambling charges 1917-1934 see Marquis, "Vancouver Vice," supra, at 249. McLaren, "Race and the Criminal Justice System," supra, at 415; Marquis, "Vancouver Vice," supra, ai 132  247; and Anderson, Vancouver's Chinatown, supra, at 101-102.  36  The eradication o f Chinese gambling dens was likely impossible given that, as one account by a Chinese merchant suggested, forty dens employing seven to eight hundred employees catered to a clientele o f three thousand.  133  Moreover, it is unlikely  that police cared to fully eradicate Chinese gambling, as it caused little harm and especially throughout the 1920s, provided substantial revenue in fines.  134  Chinese  gamblers were a convenient target because the visibility o f the raids kept moral reformers appeased, and, as these raids were almost always reported on by a sensationalist press, gave the police a public appearance o f diligence in suppressing i m m o r a l i t y .  135  Four noteworthy aspects o f the policing o f Chinese gambling dens are: the elaborate systems employed for evading police detection; the manner o f entry by the police; the public aspect to the raid; and the occasional public recognition o f the inherent discrimination in raiding Chinese gambling dens. Anderson uncovered the following 1911 W . R . Gordon poem from  British Columbia Magazine which, i n and apart from its  racist imagery, encapsulates these themes:  136  Trouble in Chinatown There's trouble down in Chinatown and the Chinks are spitting blue; The cops have yanked old Tai Kee's bank and all his layout, too. The fan-tan game and the py-gow frame and the chuck-luck mat all went In one fell swoop when Sergeant Troop and his "bulls" collected rent. The games were going with a handsome showing and a noisy, smoky hum, While thoughts of raids and police parades were far from the yellow scum. The air was thick as burnt clay brick; the smoke you could cut in chunks, But the monks were gay in their saffron way as they bet their hard-earned plunks. A swell young Chink in a jacket pink lounged by the outer door. His eyes were closed and you'd swear he dozed, but he saw a whole lot more Than you or I, if we passed by, would take in at a look, For he was a scout for the whole layout and the street was his lesson book.  Con et al, From China to Canada, supra, at 122.  Marquis, "Vancouver Vice," supra, at 250. Anderson, Vancouver's Chinatown, supra, at 97-102. Ibid., at 102.  A cop walked by and the Chink's slant eye read trouble as he passed, And before another could follow the other that outer door slammed fast. He pulled a string, and funny thing, two more banged down the hall, While in the room the noisy hum had changed to a heathenish bawl. But the cops were wise; they had used their eyes to size up Tai Kee's joint. They went at the wall in the dark back hall with an axe and a crowbar point. In a minute or two they laid plain to view the murky gambling den; They swarmed inside and the way they tied those Chinks was worth a ten. Five at a time in a jabbering line, they knotted them queue to queue, While the "muck-a-hai's" and "mo-bing-kai-tai's" turned the place an indigo blue. There were forty odd, too heavy a load for the "Black Maria" van, So some had to walk for many a block, pig-tailed like a human fan. Now that is why the big ki-yi is heard in Chinatown. The row they'll raise will be heard all ways round the streets that they hold down; But it's all in the game, it's ever the same; they're raided from day to day. When work is slack the cops fall back on the Chinks for a grandstand play. The "alarm system" described i n the fourth verse was a prominent feature o f Chinese gambling dens. Members o f the local media occasionally accompanied the police on raids and wrote o f "ingenious Oriental systems o f spring doors" and "getaway rat tunnels."  Police often had to pass through several doors, usually locked or bolted,  making it difficult to actually catch a game in progress.  138  Therefore, raiding the dens  involved not only significant manpower, but, as the poem indicates, axes and crowbars.  1  The moral reform contingent used their Parliamentary connections to amend the law i n an attempt to facilitate police searches o f Chinese gambling dens i n two respects. The 1910 amendments to gambling sections o f the Code made it an offense to use any device to obstruct or delay police entry to a gambling house. The amendment was introduced with the following comments by M r . H . H . M i l l e r o f South Grey,  "'Ibid., at 103.  Lai, The Forbidden City, supra, at 45-46; McLaren, "Race and the Criminal Justice System," supra, at 416; and Marquis, "Vancouver Vice," supra, at 250. The law provided for police to break down doors' when searching alleged gaming houses from its inception in 1875. See (1875), S.C, c. 41, section 1. In Anderson, Vancouver's Chinatown, supra, at 103, she refers to press reports describing the Deputy Chief as an "axe man" never trapped by a door. 138  38  Parliamentary spokesperson for the Moral and Social Reform Council o f Canada (the "MSRCC"): The reason for that amendment is that it is complained by constables and police officers seeking to inspect or gain entry to Chinese gambling houses in many cases, they find that the occupants o f the house have their inner rooms barricaded with very stout doors, thus preventing the police from gaining entry until the inmates have an opportunity to escape. 140  Secondly, in 1913, section 641 o f the Code was amended to fast track the process for obtaining a search warrant for gambling premises by allowing any police officer, as opposed to just the chief constable, to write the magistrate to issue the warrant.  141  In the  next chapter, we see that some lawmakers objected to regulation o f the racetrack on the basis that it was an affront to British notions o f personal liberty. In the case of the Chinese, no such objections were raised to amendments that infringed upon one o f the more sacrosanct tenets o f liberalism, the right to hold and protect personal property. While anti-Asian sentiment was widespread, the unfairness o f the disproportionate level o f police scrutiny was occasionally noticed due to the public nature o f the raids, as the following comments made sometime between 1886 and 1920 illustrate: We always thought it was a darn shame the way the police raided them at times. The patrol wagon would drive up, out would get half-a-dozen policemen and go in and raid the place-probably find 25 or 30 Chinamen. They would bring down half-a-dozen o f them. Well,, that was just pie for the policemen. A l l they would do was gather up these pigtails like a man driving a four-in-hand. One policeman could hold about half-a-dozen by the pigtails while they went back and got another half-dozen. W e always thought that was rather a poor game as far as the Chinamen were concerned because the local clubs all played their own games poker, as a rule - with big stakes. 142  Canada, Debates, 1909-1910, at 856. ' (1913), S.C, c. 13. Canada, Debates, 1913, at 10070. As per Monteith in Cauthers, ed., A Victorian Tapestry, supra, at 27.  39  Prior to the anti-Asian riots o f 1907, Vancouver mayor Frederick Buscombe reprimanded the police for unduly harassing the Chinese, reminding them that they possessed the same rights as other c i t i z e n s .  143  Some were not deterred from asserting these rights, such as  one merchant who successfully sued the police for a wrongful search.  144  Similarly, in  1905, M r . Justice W . Norman Bole o f the Kamloops County Court quashed the conviction o f the Defendant A h J i m for "playing in a common gaming house."  145  Judge  Bole wrote: A s to the matter o f conduct I do not think it should weigh against the appellants as unfortunately the average Chinaman from experience has learned to look upon the police with all the aversion with which the unfortunate Irish peasantry o f 1798 regarded the Hessian troops, and to fly on their approach. 146  The average Chinese gambler may have indeed attempted flight upon the approach o f the police, but records indicate that such action was o f little avail. In this era, the Chinese constituted less than five percent o f the province's population.  147  In 1905, o f  the 211 convicted for indictable gambling-related offenses i n British Columbia, 166, approximately 79 percent, were C h i n e s e .  148  M c L a r e n ' s review o f Vancouver Police  Record Books between 1905 and 1907 indicate that gambling offences were the most  H J  Roy, White Man s Province, supra, at 17.  Anderson, Vancouver's Chinatown, supra, at 103; and Marquis, "Vancouver Vice," supra, at 249. An additional aspect that should be noted when viewing the regulation of Chinese gambling dens from the governance perspective, is the presence of resistance through dividing practices that occurred within the Chinese community. The Chinese Benevolent Association and other merchants' organizations recognized that the perception of Chinatown as a vice-ridden community inhibited business and in 1917, 1918 and 1933 petitioned police and local government to tighten the law in order to further suppress gambling: see Lai, Chinatowns, at 212; Anderson, Vancouver's Chinatown, at 103; and Marquis, "Vancouver Vice," at 250. This action of distinguishing legitimate businesses from those at which gambling occurred had little impact in policing policy, but certainly played a role in pushing the games 'underground' within Chinatown. 1 4 4  145  The King v. Ah Jim (1905), 10 C.C.C. 126 (B.C. Co. Ct.). The police charged Ah Jim under section 199  of the Criminal Code, S.C. 1892, c. 29. Ibid., at 127. 146  The Canada Censuses 1881-1911 report that in 1901 the Chinese numbered 14,201 of the province's 178,657 residents. In 1911, the Chinese numbered 19,568 of 392,080: Roy, White Man's Province, supra, at 267. 147  numerous offence recorded, none o f which involved Anglo-Saxon premises; a similar trend is evident i n the Victoria records.  149  Comments by a Chinese merchant, W o n  Alexander Cumyow, before the 1902 Royal Commission highlight the discriminatory nature o f raiding the Chinese gambling dens: Some do gamble for large amounts, but more commonly, the play is for amusement only and for small sums to pass the time as this is done in the common room o f the boarding house. I f a police raid is made and any are caught playing, all are arrested for gambling and looking on. I f the same course were pursued i n relation to white men, gamblers would be caught in barrooms and o f course all who were at the bar would be arrested as onlookers. 150  But police had no interest in pursuing the same course with white men, as the police were part o f the same sporting culture and working class as many white gamblers.  151  Though  the occasional judge or citizen noticed the unfairness o f exclusively raiding Chinese dens, the policy o f suppressing Chinese vice outweighed such concerns. VII: A n a l y s i s The regulation o f Chinese gambling dens, reaching its zenith following the 1907 Vancouver riots was a component o f a larger programme governing the Chinese population, central to which was a strategy o f moral regulation. I f one considers a hierarchy o f Chinese vices based on the panic it instilled among the wider population, gambling certainly ranked below prostitution and opium use. Nevertheless, it was a significant campaign as measured by arrest statistics and public coverage. M c L a r e n sums up as follows:  '** Canada, "Criminal Statistics", Sessional Papers 1906, No. 17. A breakdown by race for summary conviction offenses is not available. McLaren, "Race and the Criminal Justice System," supra, at 413-415. McLaren suggests that in the few instances that a raid turned up whites, they were cautioned rather than charged. Anderson, Vancouver's Chinatown, supra, at 101; and Canada, "Royal Commission on Chinese Immigration 1902," supra, at 236. Marquis, "Vancouver Vice," supra, at 246. M 9  1 5 0  151  41  The conclusion is irresistible that gambling was constructed as a Chinese crime i n both [Victoria and Vancouver]. Chinese represented the vast majority o f those arrested, charged, and convicted. White illegal gambling, which was widespread, was largely ignored. The police, who shared most o f the negative stereotypes o f the Chinese held by the European population at large, were interested i n establishing control over this alien and 'inferior' community, largely to placate the white population, b y showing periodically that the police had the measure o f 'Oriental v i c e . ' 152  That said, the point in recounting the legal history o f Chinese gambling is not to evaluate the success or failure o f efforts in policing it. Rather, its significance lies in the fact that it was an activity targeted by moral reformers, and second, amendments to the criminal law were enacted as a means o f facilitating regulation. In addition, manifestations o f the legal complex such as police surveillance and the concomitant discursive labeling o f the Chinese as moral 'others' occupying an 'other' place played an important role in constructing Chinese gambling venues as disrespectable forums where a disrespectable type o f gaming occurred. Anderson demonstrates that "Chinatown" was an imaginative geography constructed by a "white" European tradition.  133  She explores the "relationship between  place, power, racial discourse, and institutional practice."'  34  Thus far, I have only  concentrated on institutional practice: the role o f law and its human agents i n facilitating a regime o f discriminatory policing. Understanding the treatment o f Chinese gambling dens by law's human agents is not possible without discussion o f the underlying cultural context within which it occurred, because social life and spatiality are mutually constitutive.  155  Anderson writes, "racial ideology [is] materially embedded i n space . . .  McLaren, "Race and the Criminal Justice System," supra, at 418. Anderson, "The Idea of Chinatown," supra, at 580 /to/., at 581. See E.W. Soja, "The Spatiality of Social Life: Towards A Transformative Retheorization," in D. Gregory and J. Urry, eds., Social Structures and Spatial Relations, (New York- St Martin's Press 1 90-127, at 98-101. 152  153 134  3  42  and it is through "place' that it has been given a local referent, became a social fact, and aided in its own reproduction."  156  Therefore, the next section is devoted to the two  overlapping movements from which a discourse emerged that constructed both the Chinese and Chinatown as morally reprehensible. In outlining the cultures o f moral reform and anti-Asian sentiment, I do not mean to suggest that these movements were unique to Canada. A s A l l e n notes, the social gospel arose from currents o f thought and action that originated outside o f Canada.  157  VIII: C u l t u r a l Context Generally, the regulation o f gambling in Canada began in an era o f moral reform which coincided with Canada's critical era o f state formation from Confederation into the twentieth century.  In British Columbia, an additional strain o f discriminatory sentiment  beyond moral rhetoric defined, marginalized, and disempowered Chinese residents, Chinatown, and its culture. The overlap between the ideologies o f building a moral dominion based on Protestant Anglo-Saxon ideals and anti-Asian racism facilitated the construction o f Chinatown as a racial and moral 'other,' and the related regulation o f Chinatown's gambling dens. The first section below discusses prevalent themes within the culture o f moral reform that emerged in Canada in approximately 1880 and existed until approximately  '  Anderson, "The Idea of Chinatown," supra, at 584. Richard Allen, "The Social Gospel and the Reform Tradition in Canada, 1890-1928," (1968), 49:4 The Canadian Historical Review, 381-399. The purpose of this discussion is not to trace the origins of these cultures and ideologies, similar movements of moral reform occurred in America and Britain. Rather, my aim is to highlight the pre-existing social relations and cultural milieu in Canada that influenced the manner in which gambling in different locations was regulated in respectively different manners. Also see Hunt, Governing Morals, supra, at 109. He outlines movements in both America and Britain that critiqued urbanism linked with politics of anti-immigration and racial degeneration. 3b  157  43  the Great Depression.  158  Fraser suggests that reformers sought to "reform the conscience  of the nation" in order to establish a "unified moral sentiment" that would create the "foundation upon which to build a legislative programme."'  59  Much, but not all o f the  analysis discusses Ontario, as the influence o f the strongest proponents o f the social gospel, the Methodist and Presbyterian churches, had less influence in British Columbia than Anglicans, who were somewhat more moderate on social reform issues.  160  It is  nevertheless important to recount the foundation o f the moral reform movement as its attitudes toward immigration dominated federal politics and resonated deeply in British Columbia after the turn o f the century. The second section examines the moralization of Chinatowns in British Columbia. With the rise o f the social gospel after 1880, a moral characterization o f the Chinese as 'inassimilable debased heathens' supplemented the earlier labour-related concerns and culminated in violent uprisings and significant use o f law enforcement personnel to suppress a number o f crimes regarded as inherently Chinese.  161  It was  within this context that the regulation o f Chinese gambling dens took place. A : M o r a l R e f o r m in C a n a d a : 1880-1920 Moral reform was a component o f a Protestant evangelical movement that became known as the "social gospel."  Adherents to the social gospel viewed Christianity as a  " Nancy Christie and Michael Gauvreau, A Full-Orbed Christianity: The Protestant Churches and Social Welfare in Canada, 1900-1940, (Montreal & Kingston: McGill-Queen's University Press, 1996). At 217, the authors state that the Depression caused the collapse of social service work due to a lack of funding. Brian J. Fraser, The Social Uplifters: Presbyterian Progressives and the Social Gospel in Canada, 18751915, (Waterloo: Wilfrid Laurier University Press, 1988), at 127. Jean Barman, The West Beyond the West: A History of British Columbia, (Toronto: University of Toronto Press, 1991), at 211; and Edward Pulker, We Stand on Their Shoulders: The Growth of Social Concern in Canadian Anglicanism, (Toronto: Anglican Book Centre, 1986), at 12. See McLaren, "Race and the Criminal Justice System," supra. Richard Allen, The Social Passion: Religion and Social Reform in Canada 1914-1928, (Toronto: University of Toronto Press, 1971), at 8. s  1 3 9  1 6 0  161  162  44  social religion that called for individuals to incorporate religious standards into the fabric o f society.  163  Cook argues that two factors precipitated a late nineteenth century  transformation o f Christianity into a primarily social religion: Darwinian science and criticism o f the B i b l e .  164  H e writes:  The orthodox Christian preoccupation with man's salvation was gradually replaced by a concern with social salvation; the traditional Christian emphasis on man's relationship with G o d shifted to a focus on man's relationship with man. This union o f the sacred and the secular was followed, . . . by the substitution o f theology, the science o f religion, with sociology, the science o f society. 163  Semple also supports the view that Darwinism and the accompanying social sciences supported the shift from personal introspection to outward action, but adds that the social demands o f industrialization necessitated a collectivist attitude beyond religious circles.  166  Likewise, Fraser suggests a shift at approximately the turn o f the century from  individualistic evangelism to a desire to shape the "collective expression o f the moral w i l l o f the nation."  167  Regardless o f the cause, the result was an essentially environmentalist  approach to moral reform, advocating the general belief that reforming society was the first step to saving i n d i v i d u a l s .  168  Before proceeding with a discussion o f the concerns faced by moral reformers, the diversity o f opinion within the movement should be mentioned. Generalizations about views on race must be tempered with the recognition that moral reform consisted o f a wide array o f church groups and organizations made up o f individuals who came from different places and backgrounds. A l l e n identifies three categories o f reformers that he  163  Ibid., at 4.  Rarnsay Cook, The Regenerators: Social Criticism in Late Victorian English Canada, (Toronto: University of Toronto Press, 1985), at 4. Ibid. 1 6 4  165  Neil Semple, The Lord's Dominion: The History of Canadian Methodism, (Montreal & Kingston: McGill-Queen's University Press, 1996), at 345 and 351. Fraser, The Social Uplifters, supra, at 107. 166  1 6 7  45  labels conservative, progressive and r a d i c a l .  169  The first category consisted o f those  closest to traditional evangelicalism which focused on individual sinful acts as a product o f environment, and unwaveringly endorsed legislative reform as a platform for regulating the individual. The final category believed that personal salvation was not possible without social salvation and was more likely to adopt the rhetoric o f a nation in peril. The middle category operated in between the conservatives and radicals.  *  *  170  *  M o r a l reform was not only a national movement, but a nationalist movement.  171  Semple argues that the shift to an outward social religious doctrine inspired Methodists to "create a moral nation as a basis for G o d ' s kingdom on earth."  172  A n important aspect  which facilitated the rise o f a national moral reform movement in Canada was the institutional consolidation and coalition that gave Protestant churches a national presence and enabled lobbying o f the federal government for legislative reform. Denominational churches began forming national committees in the late nineteenth century, including the Anglicans' General Synod in 1891 and the Methodists in 1885.  173  A t meetings o f  national bodies, social and economic concerns were raised, mostly issues o f sabbath observance, intoxication and prostitution. Soon, the churches created sub-committees to examine social issues, such as the A n g l i c a n Temperance Committee on Alcohol in 1896,  168 169 170  Semple, The Lord's Dominion, supra, at 351. Allen, The Social Passion, supra, at 17.  Ibid. For example, the MSRCC and the Lord's Day Alliance fall into the conservative category. Anglicans could be considered 'progressive.' Racial exclusionists such as Reverend Fraser (see text accompanying note 204) were radical. The link between moral reform and nation-building is identified by Strange and Loo in Making Good, 171  supra, at 8 and Valverde in The Age of Light, Soap, and Water. Moral Reform in English Canada, 1885-  1925, (Toronto: McClelland & Stewart Inc., 1991), at 16 and 165. Also see Pue and Rob McQueen, "Misplaced Traditions: British Lawyers, Colonial Peoples," (1999), 16:1 Law in Context, 1. 1 7 2  173  53  Semple, The Lord's Dominion, supra, at 348. Pulker, We Stand on Their Shoulders, supra, at 25 and Valverde, Age of Light Soap and Water, supra, at  46  the Methodist Board o f Temperance, Prohibition and Moral Reform in 1902 led by the prolific Reverend Samuel Dwight Chown, the Baptist Committee on Temperance and Moral Reform in 1906, and the Presbyterian Committee on Temperance and other Moral and Social Reforms in 1907 headed by the Reverend John G . Shearer.  174  In 1907, the alliance o f church and labour groups instrumental i n the passage o f the L o r d ' s D a y A c t formed the M S R C C led by Shearer and the Methodist minister T . A . Moore.  173  Shearer had been a key organizer in forming the L o r d ' s D a y Alliance i n 1900  and held a vision o f a national organization for promoting the legislation o f social and moral r e f o r m .  176  M o o r e was also active in many issues o f personal morality: temperance,  sabbath observance, gambling, and prostitution. A l l e n writes: A s sons o f fathers who, following Confederation, sought a Christian nation from sea to sea, they demanded that these institutions which were ruining men and women by the thousand be stopped. Buoyed by the unifying spirit fostered by the success o f the L o r d ' s D a y Alliance and temperance efforts in a number o f provinces, the M S R C C launched reform campaigns across a vast range o f social issues. Its actions embodied the view o f law as an instrument for improving the social and moral welfare o f society.  178  Strange and L o o  suggest that the M S R C C leaders had a remarkable influence on Canadian law, as Shearer  '" Allen, The Social Passion, supra, at 13. The confusion in the literature over the MSRCCs founding date stems from the fact that its first meeting was held in December 1907, but its constitution was not ratified until October of the following year: Christie and Gauvreau, A Full-Orbed Christianity, supra, at 208. The MSRCC was renamed the Social Service Council of Canada in 1913. 1 7 6  1 7 7  Christie and Gauvreau, A Full-Orbed Christianity, supra, at 210. Allen, The Social Passion, supra, at 32-33.  Christie and Gauvreau, A Full-Orbed Christianity, supra, at 208; and Pulker, We Stand on Their Shoulders, supra, at 15-16. 1 7 8  47  "could literally march into cabinet ministers' offices and tell them how they ought to legislate."  179  They write:  This coalition o f largely Protestant reform groups ... presented a vision o f moral uplift for the entire country. Leaders set out to transform the state from an impassive laissez-faire institution to an interventionist moral watchdog. Challenging existing laws, devising new ones, and embarrassing law enforcers into stricter moral policing were their favoured tactics. 180  The theme o f nation-building was closely linked with Protestant attitudes toward immigration. Booming economically after the depression o f the 1890s and growing in population, Canada seemed poised to fulfill Prime Minister Wilfrid Laurier's claim that it 181  "shall fill the twentieth century."  In this optimistic climate at the turn o f the century,  the Protestant church and its followers had their own vision o f the moral dominion to 182  which the country should aspire.  That vision was Christian, white Anglo-Saxon, and  based on notions o f Britain's colonial " c i v i l i z i n g tradition," as emphasized i n the following passage from a 1915 issue o f  Canada's White Ribbon Bulletin:  There is one race that is fast dominating the world - the Anglo-Saxon race, represented by Great Britain and the U S A , born rulers, exceeding all others i n the capacity for governing. The only Empire o f the present day which answers to this is the British Empire, a Christian Empire, which includes strong young nations ... Do you belong to the British Empire? Then you belong to the blessed race, the blessed Empire - G o d ' s chosen rulers o f the world . 1 8 3  Barber suggests that the churches' care for immigrants was in part a Christian concern for their welfare, but also partly an aspect o f the churches' self-appointed role as  1/ y  Strange and Loo, Making Good, supra, at 69. Also see Valverde, Age of Light Soap and Water, infra  54-57. 1 8 0  Strange and Loo, Making Good, supra, at 60.  1 8 1  Michael Bliss, Right Honourable Men: The Descent of Canadian Politics from Macdonald to Mulroney,  (Toronto: Harper Collins Ltd., 1994), at 47. Valverde raises the theme of turn of the century state formation and nation-building in Age of Light Soap 1 8 2  and Water, supra, at 27. As quoted in Sharon Anne Cook, Through Sunshine and Shadow: The Woman's Christian Temperance Union, Evangelicalism, and Reform in Ontario. 1874-1930, (Montreal & Kingston, McGill-Queen's 1 8 3  University Press, 1995), at 108. The term "civilizing tradition" is at 102.  48  guardians o f Canada's place as a fundamentally British nation. Hence their aim was to "evangelize" foreigners by teaching them the proper moral attitudes for a Canadian citizen loyal to Great B r i t a i n . periodical,  184  Barber cites the following statement from the Methodist  The Missionary Outlook: " . . . we have to teach all these babbling tongues o f  the earth the language o f the Anglo-Saxon race, and bring them into line with the march o f our Christian c i v i l i z a t i o n . "  185  In addition, the Baptist church saw it necessary to  "christianize" immigrants, for "a people who know not the Gospel are a menace to civilization."  186  The nationalist element o f the moral reform movement facilitated an unfortunate strain o f n a t i v i s m .  187  Though there was general apprehension regarding the non-Christian  denomination o f immigrants, the attitudes o f moral reformers towards new Canadians varied. Christie and Gauvreau identify three threads o f thought with respect to race. The first was a strict exclusionary policy, the second espoused a theory o f a hierarchy o f cultures in which Anglo-Saxons occupied the pinnacle, exemplified by J.S. Woodsworth's 1909 Strangers  Within Our Gates, and the third advocated cultural  diversity that promoted "Canadian" life among foreigners.  188  Valverde also  Marilyn Barber, "Nationalism, Nativism and the Social Gospel: The Protestant Church Response to Foreign Immigrants in Western Canada, 1897-1914," in Richard Allen, ed., The Social Gospel in Canada 184  (Papers of the Inter-disciplinary Conference on the Social Gospel in Canada, March 21-24, 1973, at the  University of Regina), (Ottawa: National Museums of Canada, 1975), 186-226, at 189, 193 and 223. 185  Ibid., at 190, citing The Missionary Outlook, September 1903.  186  Ibid., at 203, citing at note 25, The Northwest Baptist, March 1, 1898.  1 8 7  Semple, The Lord's Dominion, supra, at 348; Valverde, Age of Light Soap and Water, supra, at 32.  Christie and Gauvreau, A Full-Orbed Christianity, supra, at 188. Christie and Gauvreau argue that the MSRCC defended immigration more than it fought to suppress it and take issue with Valverde's analysis that Canadian immigration policy was profoundly racist at 188-189. While this certainly held true for attitudes held by some church figures toward the non Anglo-Saxon Europeans that Christie and Gauvreau mention in support, Asian immigrants did not receive the same acceptance, falling into the least desirable category of immigrant in Woodsworth's work. At 212 Christie and Gauvreau recognize this somewhat by mention of the MSRCC 1921 resolution calling for the permanent exclusion of all Orientals. They suggest that this was a fleeting moment of influence by the Trade and Labour Congress that diminished after the 188  49  acknowledges the diversity o f views among moral reformers. She observes that some held the opinion that foreigners were "inherently degenerate" physically and spiritually, while others saw them as requiring only language training and perhaps some lessons in self-control.  189  In listing the races that were prospects for assimilation, Asians were often  excluded or dismissed as undesirable.  190  One extremist account by Protestant  missionaries that attempted with little success to convert Chinese living abroad, concluded that they were agents of Satan.  191  The social gospel and immigration were a complicated mix. Both the Methodist and the Presbyterian church engaged in efforts to convert Chinese immigrants and educate them in Christian ideals, but the church was also influenced by the prevailing 192  stereotypes and views on Asian immigration.  Between 1876 and 1892, Chinese  branches o f each church held services in Victoria, and operated mission schools.  193  In  1885, the Methodist church and the Women's Missionary Society set up a refuge home for prostitutes, child servants, and battered women. The Chinese Girls' Rescue Home added a school in 1908, housing and teaching Chinese and Japanese women until its demise in 1942.  194  Ward's study o f the relationship between Chinese immigrants and the  Protestant clergy reveals that urban missionary work, while based on Christian evangelical and humanitarian compassion, was nevertheless strongly rooted in cultural Salvation Army, the Dominion Grange and others joined the group after 1921. But the authors are in error on this point, as these two groups were active within the MSRCC as early as 1909. 1 8 9  1 9 0  191  1 9 2  1 9 3  Valverde, Age of Light Soap and Water, supra, at 87 and 116-117. Ibid., at 110.  Anderson, "The Idea of Chinatown," supra, at 591. Ward, "The Oriental Immigrant," supra, at 41. Lai, Chinatowns, supra, at 208-209.  See in particular Karen Van Dieren, "The Response of the WMS to the Immigration of Asian Women 1888-1942," in Barbara K. Latham and Roberta J. Pazdro, eds., Not Just Pin Money: Selected Essays On the History of Women's Work in British Columbia, (Victoria: Camosun College, 1984), 79-97. Also see 194  Lai, Chinatowns, supra, at 207-208; Li, The Chinese in Canada, supra, at 85-86: and Roy, A White Man's Province, supra, at 27-29.  50  uniformity - hence the two prevailing messages from the church: assimilation or exclusion.  193  Within white British Columbia, some objected to the missionary and  educational efforts by the churches, as there was a belief that assimilation, even i f possible, was undesirable.  196  The more exclusionary attitudes toward immigrants, particularly non-European peoples, were influenced b y an urban sexual discourse that encompassed two strains o f thought: racial p u r i t y ,  197  w h i c h was closely linked with national health and the eugenics  movement, and the white slavery panic, which involved the belief that darker skinned individuals enslaved white women for the purposes o f prostitution.  198  Reverend Shearer  headed the M S R C C National Committee for the Suppression o f the White Slave Traffic in 1915, having been active in campaigning against the 'social evil' o f prostitution since 1909. He linked the sex trade directly with race, claiming that "most o f the dens o f vice are owned b y Chinese and Japanese. N o doubt many o f the girl inmates are owned by them a l s o . "  199  Linked to the problem o f urbanization, the fear o f white slavery  encouraged a belief that cities, and particular venues within them, were unsafe for young women to frequent and hence facilitated regulation o f the streets, theaters, dance halls and even Chinese restaurants.  200  Beyond the issue o f prostitution, Shearer wrote that immigrants, "... present all the problems o f poverty, over-crowding, ill-health, social vice, drunkenness, violence,  j  Ward, "The Oriental Immigrant," supra, at 54-55 Lai, Chinatowns, supra, at 208 relying on comments made at a town hall meeting in 1876. 197 Valverde uses the term "racial purity" in Age of Light, Soap and Water, supra, at 32. 198 Ibid., infra 89-103; Also see McLaren, "White Slavers: The Reform of Canada's Prostitution Laws and Patterns of Enforcement, 1900-1920," (1987), 8 Criminal Justice History, 53-119; and McLaren, "Recalculating the Wages of Sin: the Social and Legal Construction of Prostitution, 1850 - 1920," (1995), 9 3  23:1 Manitoba Law Journal, 524-555. 199 200  As quoted by Valverde in Age of Light, Soap and Water, supra, at 57 and 93.  Ibid., at 98 quoting a list of causes of white slavery published by a Methodist organization in 1915.  51  Sabbath desecration, lowering all standards o f civilized l i f e . "  201  A more extreme element  addressed the M S R C C in 1914, when Helen M a c M u r c h y promoted eugenics and an antiimmigration policy as a means o f protecting the "superior" Anglo-Saxon race from inferior foreigners and their addition to "our national burden o f pauperism, vice, crime 202  and insanity."  The moralization o f immigrants and their neighbourhoods played an  important role in creating "imaginative geographies" and conceptualizations o f these peoples and their places in opposition to the Christian i d e a l .  203  A s the next section shows, anti-Asian sentiment cannot be solely attributed to attitudes held by moral reformers regarding immigration. But as this section demonstrates, a linkage clearly existed, and it played an important role in defining the Chinese as an immoral "other." The moral reform and labour-related anti-Asian movements overlapped as illustrated by Reverend Fraser's comments at a meeting of the Asiatic Exclusion League i n 1907: "is there harm in the Chinaman? In this city, that would be answered with one word, 'Chinatown,' with its wickedness unmentionable."  204  The importance in the moralization o f Chinatown for this thesis is that it shows how dominant cultural conceptions regarding a socially constructed place manifest themselves i n official institutional practices. Specifically, it is an example o f how the legal complex of discourses and practices encompasses non-legal knowledges that have a specific spatial context.  20' '' Ibid  "  2  a t 2 1 9  '  205  C i t i n g  a t  n o t e  5 6  '  T h e  P r e s  °y  t e r i a n  Record, July, 1912.  As reproduced in Angus McLaren, Our Own Master Race: Eugenics in Canada 1885-1945 (Toronto-  McClelland & Stewart, 1990), at 46. ' 1 take the term "imaginative geographies" from Anderson, "The Idea of Chinatown," supra, at 594. 2 0 3  B: Anti-Asian Sentiment and Moralizing Chinatown In 1884, Victoria contained British Columbia's largest Chinatown, followed by the settlements in Nanaimo and N e w Westminster, where the growing salmon cannery industry employed a number o f Chinese workers seasonally.  206  Chinese began settling i n  Vancouver i n 1884, with rapid growth after 1886 following the completion o f the C P R to its western-most stop.  207  L a i suggests that Chinatowns emerged due to the combination  o f voluntary segregation for cultural reasons, involuntary segregation as protection from white hostility, and economic factors that reduced Chinese labourers to the cheapest district o f t o w n .  208  The idea o f 'Chinatown' for settlers in Victoria and Vancouver was  something other than the physical location where Chinese residents lived. Anderson argues that Vancouver's Chinatown was a 'white European' "social construction w i t h a cultural history and a tradition o f imagery and institutional practice" that gave it a "cognitive and material r e a l i t y . "  209  Perhaps the most effective means o f categorizing the Chinese as a community apart from white colonists was by way o f emphasizing moral differences. Anderson suggests that Europeans had longstanding perceptions o f the Chinese as moral "others." She recounts memoirs from European diplomatic missions dating back to the 1780s that characterized China as a civilization in decline due to addiction to drugs, devotion to gambling, depravity, technological and scientific backwardness, the vertical direction o f their writing, and their peculiar theater.  210  A similar imagery emerged i n Canada during  2 0 4  Ibid., at 589.  2 0 5  Rose and Valverde, "Governed by Law," supra, 548-549.  2 0 6  Lai, Chinatowns, supra, at 49. Con et al, From China to Canada, supra, at 62. Lai, Chinatowns, supra, at 35.  2 0 7  2 0 8  2 0 9  Anderson, "The Idea of Chinatown," supra, at 581.  2 1 0  Anderson, Vancouver's Chinatown, supra, at 96.  53  the seminal era o f moral reform, as Protestant philanthropists that ventured into Chinatown reported o f "the helpless shackled" and "brazen women plying their trade."  211  Newspaper reports about Chinese immorality surfaced as early as the mid-1870s, suggesting that "long continued association [with the Chinese w i l l ] have the most harmful effect on our morals; for familiarity with vice has a most dangerous tendency to beget indifference which all have not the strength to contend."  212  In 1879, a provincial  government select committee described the Chinese as a race morally and socially "degraded in the extreme."  213  The cultural and religious differences o f the Chinese were  seized upon in the 1902 Royal Commission on Chinese and Japanese Immigration and exploited as a threat to white Christian morality. The Chinese lived in distinct neighborhoods that were regarded as unsanitary. Their habit o f exhuming graves to send bones back to China for burial i n accordance with cultural traditions was also seized upon as a basis for exclusion.  214  Another particularly loathed characteristic o f the Chinese that  garnered political attention was their habit o f indulging i n opium. Early Chinese labourers indulged in the recreational use o f opium, creating a demand for its manufacture and sale along the west coast o f North America. The influence o f Chinese opium use upon the white residents o f British Columbia was commented upon unfavorably as early as 1884. ' 2  3  The issue began to receive national  attention following Deputy Minister o f Labour, Mackenzie King's visit to Vancouver to assess Asian property damage claims following the 1907 anti-Asiatic riots. K i n g was shocked to discover a flourishing opium industry that i n addition to its Chinese customers  211  Ibid., at 97-98.  2 1 2  Cited in Roy. White Man's Province, supra, at 17. Anderson, Vancouver's Chinatown, supra, at 49. Con et al, From China to Canada, supra, at 66-67.  2 1 3  2 1 4  54  also serviced many whites. H e interviewed two claimants for compensation who were proprietors o f opium dens. In the thirty-one years they had operated between them, they realized annual profits in the area o f $20,000.00 each.  216  King's reports were littered with references to the " e v i l " o f opium, its "baneful and destructive effects," and its role as a "source o f human degradation."  217  In calling for  the government to take action, K i n g wrote, "to be indifferent to the growth o f such an evil in Canada would be inconsistent with those principles o f morality which ought to govern the conduct o f a Christian nation."  218  King's writings tapped into a wider-held fear on  the part o f moral reformers and some members o f the media: that young white women were the target o f the international 'white slavery' conspiracy. This scenario o f foreigners using drugs to sexually debase young women began a crescendo o f anti-Asian sentiment between 1908 and 1922, culminating in a series o f articles written by Edmonton police magistrate E m i l y Murphy, later published as Canada's first comprehensive treatise on illegal narcotics,  The Black Candle. * 2  9  The campaign against white slavery made headway in popular media and literature, especially in the early decades o f the twentieth century i n North America. In terms o f public debate, M c L a r e n suggests that white slavery ranked behind only temperance and Sunday observance as the "social and moral cause o f the e r a . "  220  The  term was first applied to prostitution well before 1900 with respect to the discovery o f  2 1 3  Roy, White Man's Province, supra, at 15.  2 1 6  W.L.M. King, Losses Sustained by the Chinese Population of Vancouver, B.C. Sessional Papers 1908,  No. 74f, at 15. 2 1 7  Ibid, at 15. Also see W.L.M. King, The Need for the Suppression of the Opium Traffic in Canada,  Sessional Papers 1908, No. 36b at 12. 2 1 8  Ibid, at 12.  2 1 9  Valverde, Age of Light Soap and Water, supra, at 111.  2 2 0  McLaren, "White Slavers: The Reform of Canada's Prostitution Law," supra, at 54.  55  British girls working in French and Belgian brothels in the late 1870s.  221  During the  related white slavery and opium panics, many o f the prominent individuals in the moral reform movement began to vilify the Chinese. For instance, Toronto morality Staff Inspector Archibald said, "the lure o f the Chinaman is developing among this class o f girls, to their utter demoralization in many instances."  222  A s moral reformers became a more organized voice in the public realm, they were able to bring pressure on governments at all levels to increase their efforts in suppressing vice. For example, an important factor that changed the nature o f policing Chinese gambling was the election o f a slate o f zero tolerance "purity crusaders" to the Vancouver city council in 1903, who pressured police to increase their meager efforts in policing Chinatown.  223  But beyond Protestant moral reform concerns, there was a general attitude  that supported the vigorous policing o f Chinatown's vices, such as opium, prostitution, and gambling, simply because these were activities seen as peculiar to a despised race. The construction o f the immoral Chinaman was not accepted without resistance. A s early as 1884, a small wealthy group o f merchants in Victoria's Chinatown formed the Chinese Consolidated Benevolent Association, with later outposts emerging in N e w Westminster i n 1892, and Vancouver in 1906.  224  Their activities included funding court  cases against discriminatory laws, operating hospitals, schools and cemeteries, and arbitrating disputes within Chinatown. The Association also separated itself from the organized gangs that ran the opium, gambling and prostitution r i n g s .  225  They vigorously  Ibid, at 57-58. See also McLaren, "Recalculating the Wages of Sin," supra, at 22-23; and Hunt,  221  Governing Morals, supra, at 104. Valverde, Age of Light Soap and Water, supra, at 111  2 2 2  " Marquis, "Vancouver Vice," supra, at 204-205. 23  2 2 4  2 2 5  Li, The Chinese in Canada, supra, at 80-83. Ibid.  56  resisted the categorization o f their businesses as dirty degraded opium dens, even petitioning Ottawa in 1908 to strengthen the narcotics l a w s .  226  But such efforts did little to quell the rising tide o f anti-Asian sentiment following W o r l d W a r I. Propaganda such as H i l d a Glynn-Ward's warning o f an Asian takeover in  The Writing on the Wall, and a journal entitled, Danger: The Anti-Asiatic Weekly led to federal politicians engaging in finger pointing over which party was more soft on Oriental immigration. o f the  227  In 1923, public support for exclusion culminated in the passage  Chinese Immigration Act, bringing immigration to a virtual standstill.  IX: S u m m a r y In the early years o f the twentieth century the Chinese gambler became a moralised category like the opium fiend or the white slaver, a symbol o f worrisome Asian "cunning" and vice. The head o f the Methodist Oriental mission, Reverend Hartwell, wrote in 1913 that within Chinatown are: ... the parasites o f the Chinese race. They are easily recognized by the hard lines and the avaricious glint o f the professional gamblers, the hopeless expression o f the opium eaters, and the unclean features of the men o f impurity. Their name is legion. They hide away largely from the public eye, but their haunts are found i n nearly every b u i l d i n g . 228  Likewise, the Vancouver Trades and Labour Congress - also one o f the organizations within the M S R C C umbrella - cited Chinese gambling dens o f "squalid infamy" as a justification for limiting immigration.  229  Sometimes, the stereotypes were all linked  together i n suspect fashion, as in a Vancouver Alderman's assertion that gambling and  ~ Anderson, Vancouver's Chinatown, supra, at 99. " Roy, "The Oriental Menace in British Columbia," in J. Friesen, and H.K. Ralston, (eds.). Historical Essays on British Columbia, (Toronto: McClelland & Stewart, 1976), 243-255, at 249-250. ~ Reproduced in Ward, "The Oriental Immigrant," supra, at 47. Roy, White Man's Province, supra, at 17.  57  opium required police vigilance because they were linked with white slavery and tuberculosis.  230  Thus, the concern in British Columbia was for some, not Chinese gambling per se, but rather the exposure o f white persons to immoral Chinese activities in Chinatown. In support o f this notion, R o y cites the following 1898 Nelson newspaper report: A s long as the exclusive people gamble among themselves in their own way, the community at large do not suffer, but the Chinese gambling den is soon found out by the white man to whom the alluring fan-tan games and the lottery are sufficiently attractive to induce him to part with his money. This is where the great evil comes in. Next the opium pipe is introduced . . . 231  Games such as fan tan and pak kop piu were an aspect o f Chinese culture dating back centuries. For Chinese labourers far from home, playing familiar games was an important element o f maintaining a cultural identity - and attempts at suppression by the Anglo-Saxon majority were a concomitant attempt at denying a cultural identity despised as the antithesis o f a hegemonic Protestant moral ideal. The necessary implication o f this characterization o f the Chinese as moral "others" was a disproportionately high level o f police surveillance in Chinatown after 1911 for drug offences, prostitution, and gambling. M c L a r e n ' s historical study o f race and the criminal justice system in British Columbia describes the significant increase i n convictions and arrests for vices which became viewed as peculiar to the C h i n e s e .  232  M c L a r e n concludes that "law was viewed by whites ... as an important instrument in constructing a distinctive Chinese identity and in regulating their conduct... and played an important role in the transmission and reproduction o f racist stereotypes."  2 3 0  Anderson, Vancouver's Chinatown, supra, at 101.  2 3 1  Roy, White Man's Province, supra, at 16, citing the Nelson Economist 19 January 1898.  ~~ See McLaren, "Race and the Criminal Justice System," supra; and Marquis, "Vancouver Vice," supra. McLaren, "Race and the Criminal Justice System", supra, at 427. J  2 3 3  Within this social and cultural context, the attempted suppression o f Chinese gambling through a coercive law enforcement strategy constructed the Chinese gambling den as a disreputable gaming venue. The subsequent amendment to the criminal law pushed Chinese gambling further into the backrooms and basements o f Chinatown businesses. The result is an enduring linkage o f Chinese gambling with 'underground' and criminal connotations. Here we see one example o f the law in its discursive and institutional manifestations playing a central role in the creation o f an 'immoral' space. In the next chapter, we see how a different legal and moral category was created for racetrack betting.  59  Chapter Three: Challenging the Racetrack  The result cannot be very satisfactory to anyone; and to those who are not learned in the law - and indeed, to some who are, or are supposed to be - it may seem even somewhat absurd that Saunders, in the lawful occupation of betting in the more orderly and less offensive - to those to whom betting in any mode is offensive - manner, should be adjudged guilty of keeping a "disorderly house " and punished accordingly, whilst these defendants, who carried on the same business, upon the same racecourse, in a less orderly and inoffensive manner, should be adjudged not guilty of the same offense and be discharged.  The Honourable M r . Justice Meredith, Ontario Court o f Appeal, November 15, 1907. 234  This proposition to do away with horse-racing, to prevent people from going to the races and betting occasionally upon a race involves the placing of a stigma on British character and on things that are the foundation of it. ...Englishmen are at all times trying to live together and to give each other the greatest freedom and they do give one another the greatest freedom from the King down. Any one in England can go on a race-track and be doing nothing immoral; he need expect no interference from anyone else. But we are setting up a doctrine in Canada that in some way it is our duty to interfere with the personal liberty of one another ... If there be any grievance, regulate it, but preserve personal liberty, because personal liberty is the foundation of the British character and the secret of the strength of British institutions. ... I do not know that public opinion is ready to stigmatize the attendance at a race-track as criminal practice. That is not the case in England.  The Honourable M r . W . F . MacLean, Conservative M . P . , A p r i l 7, 1910.  235  It is quite too late in the day to point to England as the model for Canada in matters of dealing either with the vice of drunkenness or with the vice of gambling. It woidd be to Canada's discredit if with a new start in a new country, free from the incubus of age long social custom we were not able to lead the way into a cleaner democracy. Gambling and drunkenness are two of the root curses of English life and are the more hateful because they are approved by the average man. Canada should show the more excellent way.  James Macdonald, Editor, Toronto Globe, A p r i l 7, 1910.  236  I: Introduction The first quotation above appears in the unanimous decision o f the Ontario Court of Appeal in Rex v. Moylett et al, in which the Court quashed the conviction of two bookmakers charged with keeping a common betting house at the Toronto Woodbine Racetrack.  237  Judge Meredith's mention o f "Saunders" is in reference to an earlier case  heard by the Court in which it upheld a bookmaker's conviction under the same  2 3 4  2 3 5  2 3 6  Rex v. Moylett et al, (1907), 15 O.L.R. 348 (Ont. C.A.), at 356. Canada, Debates, 1909-1910, at 6512-6513.  Editorial, "Parliament and Racetrack Gambling," Toronto Globe, April 7, 1910.  60  provisions.  238  The distinction between the cases is that Saunders took wagers from a  moveable booth situated in an enclosure set aside for betting at the racetrack, whereas Moylett roamed the same enclosure and hence, in the view o f the judges, did not occupy a "house, office, room or other place" within the meaning o f the Code. The cases embodied an interesting legal geography puzzle: 'when is a place not a place?' A s we see below, the answer in Moylett changed the universal application o f Canadian gambling law to all places b y exempting the racetrack from the betting house provisions o f the Code. The decision in Moylett also represented a pivotal setback for the coalition o f churches and trade organizations that comprised the M S R C C , which had sought the suppression o f racetrack gambling. A s a result, the M S R C C turned its efforts to lobbying Parliament for legislative reform to remedy what they viewed as a "strange state o f affairs" that allowed bookmakers to circumvent the law on a technicality. state o f affairs following the  239  The strange  Moylett decision was more apparent than real. In fact, the  boundary protecting racetracks from the reach o f the criminal law was conceived fourteen years earlier by Parliament, and conclusively erected in 1910 in the aftermath o f political lobbying following the Saunders and  Moylett cases in 19 1 0 .  240  Legislation created moral  geographies by insulating a particular place from criminal sanction. The second and third quotations epitomize the passionate debate that erupted i n Parliament and the press i n 1909 and 1910 over the M S R C C - s p o n s o r e d amendments to the Code. Following the report o f a Parliamentary Select Committee appointed to  237  238  2 3 9  2 4 0  Canadian Criminal Code, (1906), R.S.C, c. 146, sections 227 and 228. The King v. Saunders, (1906), 12 C.C.C. 33 (Ont. C.A.), affirmed (1907), 12 C.C.C. 174 (S.C.C.). Toronto Daily Star, "Legislation Must Now Be Sought," November 16, 1907. See (1892), S.C, c. 146 and (1910), S.C, c. 10.  61  examine the proposed legislation, a watered-down amendment to the Code exempted racetrack betting from the gaming house and pool-selling provisions, giving the track a de facto monopoly on commercial betting. Four years earlier, organized moral reformers i n Britain had employed a similar strategy o f legal challenge to the racetrack with the same result: an initial court victory, then a subsequent defeat, followed b y a legislative amendment prohibiting the business o f gambling everywhere  except the racetrack.  The three quotations selected to introduce this chapter embody two themes instrumental to the construction o f the racetrack as a reputable gambling venue. In the first passage, M r . Justice Meredith demonstrates how the adoption o f different spatial contexts in the course o f judicial reasoning can produce conceptually problematic decisions. In the second and third passages, the speakers reveal a perceived conflict between British notions o f liberalism and building a nation through the use o f law to regulate personal morality. The deployment o f the discourses o f law and liberty to defend the cultural importance o f racetrack betting in the same era that Chinese gambling dens were suppressed through police surveillance is illuminating in that it reveals the contingency o f law and notions o f personal liberty upon geographic and cultural context.  241  II: English B a c k g r o u n d Historically, horse racing in Canada was recognized as an inherently ' B r i t i s h ' tradition. It is useful to recount briefly the history o f racing in Britain, the origins o f its opposition and the legal implications, because o f the unquestionable influence in Canada. In Britain, betting took place at horse races put on by the Jockey Club, an organization o f  See Audrey Kobayashi, "Racism and Law in Canada: A Geographical Perspective," (1990), 11:5 Urban Geography, 447-473 at 447 -451.  2 4 1  62  aristocrats founded in 1751 that attempted to loosely regulate commercial bookmaking during race meetings.  242  K i n g Charles II provided two silver bowls as a prize at a  Newmarket running, beginning the tradition o f royal patronage o f the horse races. Thus the offering o f K i n g ' s and Queen's Plates as an incentive to breeding vintage stock was established in the late eighteenth and early nineteenth centuries, a tradition that continues to the present.  243  B y the 1840s, a concern arose with the spread o f bookmaking on horse racing amongst the lower classes at off-track betting houses. During a parliamentary committee held in 1844, Jockey Club stewards (entirely aristocrats and military gentry) sought to combat the "demoralisation o f the T u r f by distinguishing "legitimate gambling" from less reputable mass betting with ready-money bookmakers who frequented the off-track shops.  244  A n 1845 enactment attempted to remove the enforcement o f gambling debts  from the purview o f the courts; this enactment did nothing to stem the increase i n 245  wagering at the races. Subsequently, an 1853 A c t made it an offense to resort to any place for the purposes o f betting.  246  The Attorney General acknowledged the implicit class scope o f  the legislation by stating in Parliament that "the difficulty i n legislating upon this subject [is not] interfering with that description o f betting which had so long existed at  2 4 2  2 4 3  Clapson, A Bit of A Flutter, supra, at 18. Munting, An Economic and Social History of Gambling, supra, at 13.  Clapson, A Bit of A Flutter, supra, at 18-19 and 22-23. See (1845), 8 & 9 Vict., c. 109. Disputes over non-payment of gambling rarely ended up in the courts to begin with. On one side, the loss of respect associated with not honouring a bet shamed debtors into paying, as did threats of violence. On the other side, the cost and publicity associated with pursuing a gambling debt discouraged creditors from using the courts to collect; more effective and less costly means were available. See (1853), 16 & 17 Vict., c. 119. 2 4 4  2 4 5  2 4 6  63  Tattersalls." effect.  247  The 1853 A c t was perceived as class-discriminatory in intention and  It proved to be an abject failure in reducing betting, as only the most flagrant o f  betting offices were closed in the following few years.  249  B y the 1880s, a firmly established gambling industry existed, consisting o f bookmakers, racetrack owners and a sporting press that reported on odds, events and tips to a readership o f approximately 180,000.  250  Clapson suggests that the momentum o f an  increasingly commercialized betting and sporting culture was too great to be contained.  231  In opposition, an organized social movement took hold with the creation o f the National Anti-Gambling League (the " N A G L " ) in 1890, which consisted o f a coalition o f Protestant churches headed by F . A . A t k i n s .  252  I l l : Canadian Background A t common law, betting on horse racing ~ like any wager — was not illegal unless a statute existed to the contrary. Canadian cases up until 1892 applied British jurisprudence interpreting the 1739 Gaming Act ^* which made it clear that unless an 2  individual owned the horse being raced, a bet on the outcome amounted to an illegal wager and was unrecoverable.  254  Therefore, although it was not a statutory criminal  2 4 7  Reproduced in Clapson, supra, at 22. Tattersalls was the betting ring at most horse tracks  248  Dixon, From Prohibition to Regulation, supra, at 86-87.  249  Ibid., at 40-41 (citing testimony at the'1901-2 Select Committee on Betting).  2 5 0  Clapson, A Bit ofA Flutter, supra, at 29.  Ibid., at 23. Dixon identifies the following social factors that converged to result in the expansion of commercial gambling throughout England between 1850 and 1889: newly built railways transported horses and crowds; the electric telegraph published starting odds and race results; expanding newspaper coverage of sporting events fueled demand for published results and odds; an ineffective legal regime; and the development of the culture of leisure among the working class: Dixon, From Prohibition to Regulation, at 41-45. Dixon, ibid. Two years later, John Hawke became the League's figurehead and chief strategist, holding the position of Secretary until 1919. Under Hawke's leadership, the N A G L would launch a legal campaign to enforce the 1853 Act against the racetrack betting interests. (1739), 13 Geo. 2, c. 19. 251  2 5 2  2 5 3  254  See for example, Sheldon v. Lowe, 3 O.R. 85; Davis v. Hewitt, 9 O.R. 435; Ray v. Adams, (1888), 22  Canada Law Journal, 594; andN.W. Hoyles, "Wagering Contracts," (1898), 32 Canada Law Journal 217'.  64  offence to bet on a horse race, betters were without a legal remedy i f they found themselves unable to collect from the bookmaker. A s in Britain, this did little to discourage wagering at the races. Organized horse racing took hold in Ontario in approximately 1840, but did not have wider social appeal until the advent o f the Queen's Plate Stakes in Toronto in 1860.  235  The solicitation o f the monarchy's patronage was an effort by the Toronto Turf  Club to rejuvenate interest in public racing. The attendance at the inaugural event was estimated at between three and four thousand spectators and betting was minimal; one account notes that wealthy gentlemen from Montreal had difficulty finding parties willing to wager.  256  However, i n subsequent running, the Plate gradually attracted more betting  activity. A n 1881 account mentioned that "ladies had their little 50 cent pools, while the bookmakers had their hands pretty f u l l . "  257  The passage in 1892 o f an exemption for wagers on horse races from the criminal law led to a marked increase in commercialized wagering at the track.  258  For the running  of the 1892 Queen's Plate, the Ontario Jockey Club enlarged its betting enclosure and built a stand for twenty-two bookmakers; they also began looking into the purchase o f a pari-mutuel machine for expediting the betting process.  239  A British account o f the 1900  running described the clientele as follows: The bookmakers were early to work and did a splendid business. These gentlemen had the prosperous air of their colleagues on the English turf, but, strange to say, their clients seemed equally well-fed.... Even the meanest had creased his trousers to a knife edge with a flat i r o n . 260  6  17  Louis E. Cauz, The Plate: A Royal Tradition, (Toronto: Deneau Publishers, 1984), at 9. Ibid., at 16-17. Ibid., at 59.  8  See section 204(2) of the 1892 Code.  9  Ibid., at 85.  0  Ibid., at 101, quoting a piece that appeared in The Evening News.  65  Indeed, Ontario's social and political elite patronized the annual K i n g ' s or Queen's Plate. The founding members o f the Toronto T u r f Association and Ontario Jockey Club included the Denisons, John Beverley Robinson, Joseph E . Seagram and Colonel C S . Gzowski.  261  Years after its formation, a member o f Parliament described the founders'  intentions: ... to see British institutions and traditions maintained in this country through racing with which they had been identified. They recognize that the public had to have racing and they were w i l l i n g to take charge o f racing in Toronto and to give the public good clean sport o f that k i n d . 262  But to moral reformers, the replication o f Britain was not sufficient. The creation o f a commercialized sport-betting industry in Canada was not a welcome prospect for a nation moral reformers wanted governed by Protestant ideals. IV: Anti-Gambling Discourse and Protestant Morality The movement to regulate racetrack betting in Ontario between 1892 and 1910 consisted largely, but not exclusively, o f the individuals affiliated with Protestant churches, working in particular through the M S R C C . Other groups made similar demands o f government with respect to regulating gambling. For example, in 1906 the Ministerial Association o f Toronto sent a delegation to the Ontario government and the directors o f the Toronto Exhibition i n opposition to horse-racing at county fairs.  263  Also  involved in the anti-gambling movement were the press, the Toronto morality squad C h i e f Inspector David Archibald, and some lawyers and members o f Parliament. The following comments for example, appeared in 1898 in the  Canada Law Journal:  It is a matter for consideration as to whether it would not be desirable to follow the English legislation on this subject, and thus restrict, as far as possible, an evil 261 2 6 2  263  ibid. Canada, Debates, 1910-1911, at 6513. Toronto Daily Star, "They Will Oppose Racing At Fairs," March 5, 1906.  66  o f serious dimensions in Ontario at the present day, an evil which pulpit and press combine to deprecate and deplore with apparently very little result. 264  The basis for regulating racetrack betting flowed from interwoven beliefs regarding observance o f the Sabbath, the preeminence o f a traditional family unit, and the suppression o f activities that disrespected either. Deviant behaviour was not only a personal sin, but also a sin against the nation. Hence the view that the state played a role in protecting these foundations o f a moral society through legislation. W i t h respect to the media, Protestant and Catholic editors propagated a belief that the nation was shaped by the unifying force o f Christianity.  266  Indeed, newspapers were  seen by James A . Macdonald, editor o f the Toronto Globe and previously The  Presbyterian, as a powerful medium for spreading the Protestant message to the family home and influencing o p i n i o n .  267  Fraser suggests that Macdonald's papers served as his  pulpit in promoting the moral values o f Anglo-Saxon Protestantism.  268  Macdonald's  influence in federal politics led to charges o f partisan interference. Shearer's Board responded, "a moral question does not cease to be a moral question when it gets into party p o l i t i c s . "  269  In Canada, the primary components in building a virtuous nation and the basis o f social progress was the belief in strong families and Sabbath observation. Semple describes the importance o f the Sabbath to Methodists as follows: Methodists objected to using the day for travel, picnics, social visits, or other secular pursuits. More than a day o f rest, it was crucial for active personal and social religion; ... Methodists held it as an article of faith that the sabbath also renewed the vigour, enlivened the spirits, promoted healthy family life, and N.W. Hoyles, "Wagering Contracts," supra, at 223. Semple, The Lord's Dominion, supra, at 355. Rutherford, A Victorian Authority, supra, at 171-172. Fraser, The Social Uplifters, supra, at 110-114. Ibid., at 114. Ibid., at 141.  67  protected the peace and good order o f society. If the sabbath was destroyed, it would "shake the moral foundations o f our national power and prosperity." 270  Industrialization encroached upon the traditional day o f rest as the running o f streetcars, servicing o f trains and ships, and the operation o f restaurants and businesses provoked action on the part o f the churches.  271  Sabbatarianism encouraged an alliance between  religious groups and labour interests that sought to protect the worker's right to a day o f rest, which culminated in the enactment o f the L o r d ' s D a y A c t in 1907. The ideal o f a good family man did not embody drunkenness or gambling and certainly not prostitution. The press promoted what Rutherford labels the "romance o f the family": The true unit o f society is not the individual but the family. N o individual in fact is fit to take his place or discharge his duties to society unless his better nature has been developed by family life ... The family has thus a most important preparatory work to do, and i f that work is not done, or i f circumstances render it abortive, society has thrown into it elements that it cannot properly assimilate, and whose presence in the body politic must be a source o f irritation and injury. U p o n the right ordering, therefore, o f family life in all social well being depends; and just in so far as home influence breaks down or loses its efficacy, w i l l society be filled with adventurers, whose one object and law w i l l be the gratification o f their own appetites. 272  Semple writes that Methodists considered the family "to be the core o f social organization, the cornerstone o f civilization, and the foundation o f national l i f e . "  273  Similarly, A . G . Sinclair o f the Presbyterian Board o f M o r a l and Social Reform wrote: The condition o f home-life is the test o f all civilization and all progress. Y o u can estimate the danger to the nation o f any one o f the great social evils o f our day by its destructive effect on the h o m e . 274  2 7 1  Semple, The Lord's Dominion, supra, at 357. Ibid., at 358.  2 7 2  Rutherford, A Victorian Authority, supra, quoting the Montreal Star, March 17, 1883.  2 7 3  Semple, The Lord's Dominion, supra, at 340-341. As quoted by Fraser in The Social Uplifters, supra, at 100.  2 7 4  68  In addition, the family was the ideal economic unit that supported the Protestant ethic o f work; idleness bred sinful behaviour, whereas labouring to support one's family was an essential Christian d u t y .  275  More broadly, Protestant anti-gambling moral discourse based itself on three general tenets: (i) Gambling upset the divine order o f the individual's material place in society; (ii) Gambling was covetous and selfish in that it involved gain at the expense o f one's neighbour; and (iii) Gambling was an illegitimate method o f redistributing property. The last point was used to argue that gambling undermined the stability o f a society based on obtaining property through paid labour and, as such, was an affront to the 276  Protestant work ethic to family stability, and hence, a threat to the wider community. This position was buttressed b y arguments that working class drinking and gambling contributed to idleness and economic depression. surfaced in the anti-gambling rhetoric:  277  Often, symbols o f national rum  A grave national evil surrounds us, for gambling produces godlessness and irreligion, induces dishonesty, deadens the moral sense, unfits men for the sterner duties o f life, creates feverish excitement in the place o f steady work and industry, lowers self-respect, degrades manhood, develops low cunning and selfishness, destroys domestic happiness and home life, unsettles the labour market and the working-classes, and encourages crime and general recklessness. A moral disease with such disastrous consequences is surely one that every right-minded Englishman should strive to stamp out, or it w i l l soon destroy all the noblest, purest and brightest characteristics o f our nation.  278  Semple, The Lord's Dominion, supra, at 340-342. Dixon, From Prohibition to Regulation, supra, at 48-50. Also see Adams, A Sermon on Lotteries, supra. 2 7 6  Dixon, ibid., at 53. Especially drunkenness, as temperance movements initially overshadowed antigambling sentiment during this era. Dixon, "Class Law," supra, at 10. He is quoting S. Churchill, Betting and Gambling, (2nd edition), (London: James Nisbet, 1894), at 45. 2 7 8  69  In conjunction with its harmful effects on family life, gambling was condemned for its potential to upset the principles embodied by a liberal capitalist economy. During the debates over the racetrack betting bill in 1910, Archdeacon H.J. Cody raised the following points against gambling in an address to the Ministerial Association o f Toronto: (1) it did not recognize the responsibility o f money; (2) it tended to destroy the proper conception o f the rights o f property; (3) it tended to degrade or k i l l manly sports; and (4) it threatened the well-being o f society through individuals profiting b y another's loss or suffering, through promoting selfishness and discouraging industry and thrift, through causing crime and various forms o f dishonesty.  279  In the last chapter, we saw that the discursive field o f knowledge within which the regulation o f Chinese gambling dens occurred involved elements o f nationalism and racism as it related to Protestant notions o f morality. But Chinese gambling itself was a secondary worry behind the predominant fear that unsavoury elements in Chinatown might morally debase the white-European population - particularly its women. Hence there was little resistance couched in classic liberal terms to the use o f law to regulate Chinese gambling dens. Chinatown provided villains and victims in a graphic manner that resonated deeply with the public - the racetrack did not have the same lurid mystique. Thus, the impetus for regulating the racetrack did not have a moral discourse attached to a particular place, as Chinatown had. Rather, the perceived social consequences o f the activity o f betting served as the dominant justification for the deployment o f criminal law to regulate public betting forums. The spatial element in the racetrack betting debate emerged first as a discursive tactic o f resistance, as pro-racing  "  Reproduced in J. Castell Hopkins, The Canadian Annual Review of Public Affairs 1910, (Toronto: The  Annual Review Publishing Company Limited, 1911), at 240-241.  70 interests distinguished their 'gentlemanly British' sport from other less respectable gaming venues. According to Foucault, the construction o f a discourse involves a process o f collision, marginalization and synthesis o f competing discourses, ultimately giving rise to 280 a "regime o f truth."  Thus Protestant anti-gambling discourse represents, at the risk o f  oversimplification, one side o f the equation. The competing characterization o f horseracing as a British cultural tradition, the 'Sport o f Kings,' a 'gentleman's sport,' was a dividing practice employed by racing interests in resistance to the legal campaign launched by the moral reform contingent i n Britain and Canada. Its embodiment in legislation illustrates the convergence o f law and power to entrench the racetrack as a respectable forum for betting.  V: Challenging the Racetrack in England In Britain, the N A G L initially chose to target racetrack betting as the most visible and public form o f gambling. From the outset, the N A G L had a stated strategy o f not targeting working class gambling. Their bulletins used the analogy o f the social body poisoned from the head on down, and hence the source o f the infection - upper class 281  gambling - had to be cured.  The N A G L believed that only through the reformation o f  the upper class could the habits o f the working class be improved. Their tactics included petitions, pamphlets, and public meetings. But the central strategy, initiated by John Hawke, was the objective o f enforcing the moribund 1853 Act against the racecourse bookmakers. Hunt and Wickham, Foucault and Law, supra, at 11; and Rose, "Governing Liberty," supra, at 144. ' Dixon, "Class Law," supra, at 105.  71  The preamble o f the 1853 A c t mentioned that a "kind o f gaming has o f late sprung up," involving the opening o f "places called betting houses or offices" that tended to the "injury and demoralization o f improvident persons" who placed bets on "horseraces and the like contingencies." Section one forbade the opening keeping or using o f any: ... house, office, room, or other place,... for the purpose o f the owner, occupier, or keeper thereof, or any person using the same, or o f any person having the care or management or in any manner conducting the business o f thereof betting with persons resorting thereto ... on any event or contingency o f or relating to any horse-race, or other race, fight, game, sport, or exercise ... A n y place within the scope o f section one was deemed a common nuisance contrary to law. Accordingly, John Hawke o f the N A G L laid an information charging a bookmaker, Richard Dunn, with unlawfully using the Tattersalls' ring at the Hurst Park Racecourse for the purpose o f betting. 282  A : Hawke v. Dunn Tattersalls' R i n g was a roofed enclosure with three tiers o f seating rows, located within the main racecourse. The racetrack owners charged one pound's admission (ten times the price o f the normal seats) to about one thousand individuals daily, including fourteen bookmakers and their clerks. The bookmakers roamed the area shouting odds, taking deposits, exchanging bet vouchers, and paying off winnings. The magistrates dismissed the initial charge on the basis that Tattersalls was not a fixed place for the purposes o f betting, because to find so would make everybody within the enclosure liable. O n appeal, Hawkins J. o f the Queen's Bench found the logic i n the magistrates' decision to be "unintelligible."  283  Judge Hawkins rejected the submission that the words  72  "or other place" in the A c t must be interpreted ejusdem generis with the accompanying "house, office, or r o o m . "  284  Instead, he adopted a purposive approach, ruling that it could  not be within the intention o f the Legislature to mention horserace betting in the preamble and then "afford it a sort o f sanctuary i n a betting-ring, or in any other place not ejusdem generis with a house or office."  285  H e concluded:  ... I have arrived at the conclusion that any area o f enclosed ground (expressing no opinion as to unenclosed areas), covered or uncovered, which is known by a name, or is capable o f reasonably accurate description, to which persons from time to time or upon any particular occasions or occasion resort, and who may very properly be described as resorting thereto, used by a professional bettingman for the purpose o f exercising his calling, and betting with such person, or for the purpose o f carrying on a ready-money betting business, may be a place with the meaning o f the statute. Metes and bounds are not essential, and it matters not in m y opinion whether for his own convenience the bookmaker chooses to remain during his hours o f attendance upon one particular spot within that area, or whether he prefers to move about within that area from one spot to another as he is minded. The A c t speaks o f an other "place" - not a "spot" i n a place. If to make it a place the bookmaker must fix himself on and use only one spot, he would always have it i n his power to evade the A c t by wandering over the whole area.  286  Stating that the Legislature forbade the use by those that "make a trade and business o f 287  betting o f any place for the purpose o f betting with persons resorting thereto,"  Judge  Hawkins dismissed the charge. Racetrack interests briefly considered lobbying Parliament for a legislative exemption for track betting, but believed the political climate would not facilitate such an action. 2 8 2  288  Because it was still the court o f last resort on criminal matters, no appeal was  [1897] 1 Q.B. 579 (Q.B.).  The'ei^sdern generis principle of statutory interpretation states that a particular word takes its meaning from the words which surround it. 2 8 4  Hawke, at 587.  2S5 286  Ibid., at 598.  Dixon/'Qass Law," supra, at 105-106. He cites two articles from two sporting publications on this point. 2 8 8  73  available from the Queen's Bench decision. Instead, the racetrack owners chose to challenge the new precedent with a civil test case. 289  B: Powell v. Kempton Park Racecourse Company Seeking to circumvent Hawke, a shareholder o f the Kempton Park Racecourse Company (the "Company") agreed with the racecourse owners to bring an application seeking an injunction to restrain the Company from operating its Tattersalls ring. H e submitted that it was contrary to the Act, and therefore ultra vires the Company's memorandum o f association. The trial judge granted the injunction based on Hawke. The Court o f Appeal set aside the lower court ruling in a 4-2 decision and entered judgment for the Company. The Court o f Appeal rejected the notion that the Legislature intended to regulate bookmaking at racetrack enclosures: ... it is inconceivable i f the object o f the Legislature was to bring the accustomed business o f professional bookmakers at race-meetings within the meshes o f the Act, which business for upwards o f half a century had been notoriously carried on thereat throughout the kingdom, that the preamble should have been confined (and I think studiously confined) the declared object o f the A c t to a kind o f gaming which had then o f late sprung up b y the opening o f places called betting houses or offices . . . 2 9 0  The Court also rejected the interpretation of'house, office, room or other place' adopted in Hawke and employed the ejusdem generis principle: ... the Court was not justified in extending the meaning o f the A c t as it has done, which it did by in reality striking out the dominant words "house," "office," "room," and relying upon the words "other place," as i f they were the dominant words o f the section. If this construction o f the A c t be correct, the dominant 291  words o f the A c t are mere surplusage, which is a construction I cannot adopt... The House o f Lords affirmed the Court o f Appeal's judgment in a 6-3 [1897] 2 Q.B. 242 (C.A.), affirmed [1899] A.C. 143 (H.L). Ibid., at 272 as per A.L. Smith L.J. On appeal, four separate judgments were written by the majority. I [uote A.L. Smith L.J. because the majority of the House of Lords adopted similar reasoning. 8 9  90  91  Ibid., at 281.  74  decision." " The majority rejected Judge Hawkins' interpretation o f the Legislature's intention to target the "professional betting men" who "make a trade and business o f betting".  29,5  Instead, the Court ruled that Parliament intended to suppress betting houses  or offices and their owners, occupiers and agents.  294  Accordingly, the appeal was  dismissed.  VI: Challenging the Racetrack in Canada In Canada, 1906 was a pivotal year in the movement against racetrack betting. The press accounts o f betting at the Plate that year describe what many viewed as a worrisome scene: The old ramshackle shed that does duty as a betting ring fairly groaned under the strain. The "talent" were wedged i n like sardines, and men literally fought with each other to place their money in the capacious maws o f the perspiring bookmakers, the thirty-six books doing a roaring trade. 295  For moral reformers, the Queen's Plate at Woodbine represented the epitome o f the demoralizing nature o f racetrack betting. Commonly referred to as the "University o f Gambling," Inspector Archibald revealed why moral reformers viewed the Plate with such distaste: For the simple reason that it is patronized, as you say, by the best class o f men i n the community, and a class o f people who are very desirous to be found associated with the high-toned class in the social standing w i l l go to the Woodbine ... It has a far more demoralizing effect upon the better class o f people than the outside places. 296  " Kempton, (H.L.), supra, Earl of Halsbury L.C. for the majority, Lord Watson, Lord MacNaughten, Lord Morris, Lord Shand concurring, Lord Davey, Lord Hobhouse and Lord Rigby dissented on the reasoning of Hawke. Lord James of Hereford wrote a separate judgment dismissing the appeal. See text accompanying notes 292-293, supra. Kempton (H.L.), supra, at 164-165. 2 9 3  294  2 9 5  Cauz, The Plate, supra, at 113.  Canada, "Evidence Taken by the Special Committee to whom was referred Bill No. 6 Relating to Race Track Gambling," 1911, Sessional Papers, Appendix No. 6, (Ottawa: King's Printer, 1912), at 225. The University of Woodbine comment is at 232. 2 9 6  75  Following the running o f the 1906 Plate, Archibald's men arrested two bookmakers and charged them under the common gaming house provisions o f the Code. M o r a l reformers hoped that a conviction could be obtained on the basis o f the ruling in Hawke, thus setting a legal precedent that would terminate the business o f betting at the Woodbine. However, the resulting Saunders decision was merely the first o f two cases that would influence the legal and political debate.  A : The Kins v. Saunders Jake Saunders and his co-defendant rented a betting booth from the Ontario Jockey Club, the incorporated race association that owned the Woodbine racetrack in Toronto. The wooden booths were approximately six feet long, five feet wide and four and a half feet high. They were equipped with wheels in order to transport them to sheltered areas within the betting enclosure during inclement weather. Within the betting enclosure, thirty-six booths were available for rent by bookmakers for $100 per day. After renting a booth during the running of the K i n g ' s Plate between M a y 19th and M a y 28th, 1906, the defendants were charged with keeping a common-betting house under sections 197 and 198 o f the Code. The relevant sections o f the Code mirrored British gaming legislation except for one important provision. Section 197 defined a common betting-house as a house, office, room or other place opened, kept or used for the purpose o f betting on any event, or contingency relating to any horse-race, or other sport. Section 198 made it an indictable offence to keep or have care, government or management of any common gaming house. Section 204(1) deemed it an offence for anyone who allowed a premises under his or her control to be used for the purpose o f recording any wager or selling a pool relating to any  76  election, race, or contest o f skill. However, in contradistinction to the British statute, section 204(2) provided: The provisions o f this section shall not extend to ... the owner o f any horse engaged in any lawful race, or to bets between individuals or made on the race course o f an incorporated association during the actual progress o f a race meeting. On its face, section 204(1) seemed targeted at places that did not operate for the purpose of betting, as in section 197, but nonetheless recorded bets or sold pools ancillary to its regular business. Hence, the police magistrate entered a conviction but submitted a stated case to the Court o f Appeal on two issues: (a) A m I right in holding that a betting booth as aforesaid falls within the terms o f sec. 197 o f the Criminal Code as a house, office, or other place? (b) A m I right in holding that the provisions o f sub-sec (2) o f sec. 204 o f the Criminal Code do not apply to the offence o f which the defendants are found guilty? 298  O n the first issue, the Honourable Chief Justice Moss ruled that whether the booth fell within the meaning o f section 197 was a question o f fact decided by the nature o f its structure, the manner o f its occupation, and the uses to which it was put.  299  Relying on a  series o f British cases, he held that the booth constituted a common betting-house: The defendants were in charge o f a definite localized place and occupying and using the structure for the purpose o f carrying on the business o f betting with all persons who might resort thereto for the purpose o f betting with them. It was so situated and marked out that any one wishing to bet could readily find the defendants there. The booth, though open to the air, had some o f the characteristics o f a room and many o f those o f an office. It was enclosed by walls of a considerable height, and it contained the usual fittings or accessories o f an office, such as desks, table, and chairs. Business was transacted there i n connection with bets made and the money received and paid in respect o f such bets. 300  R v. Saunders, (1906), 12 C C C . 33 (Ont. C.A.). Ibid., at 36. ' Ibid., at 37. 1  'ibid., at 40-41.  77  On the second issue, the C h i e f Justice said that i f Parliament intended to apply the saving provision in section 204(2) to the common betting-house sections, it could have introduced such a clause. B y not doing so, the Chief Justice held that Parliament "expressly confined the operation" o f the subsection to the betting and pool-selling offences in section 204(1), and thus affirmed the conviction.  301  The Honourable M r . Justice Osier wrote a short separate concurring judgment citing  Shaw v. Morley,  202  i n which a similar structure was held to be a "place." In his  view, nothing said in the "celebrated  Kempton Park case" was in conflict with such a  finding. O n the second issue, he cited Rex v. Hanrahan  303  for the authority that section  204(2) did not qualify section 197. MacLaren J.A. concurred with the majority judgments.  304  T w o judges wrote dissenting judgments. The Honourable M r . Justice Garrow held that the whole statute must be read together; thus section 204(2) operated to qualify the offences delineated by sections 197 and 198. H i s comments revealed where his personal inclinations lay, but reflected a measure o f judicial deference to Parliament: If it is desired to put a stop to betting such as that disclosed in the case before us, it is an easy matter for the Legislature to say so. I for one would not be sorry. But, as the matter stands, the legislative movement is rather the other way, for the exception to which I have referred is not in force, as I have said, in England at all, and was only introduced into our statute law in the year 1892. 305  O n the issue o f whether the betting booths constituted a place, Judge Meredith, writing in dissent, criticized the manner in which the jurisprudence had developed. He  Ibid., at 40. At 41, the Chief Justice also cited R v. Giles (1895), 26 O.R. 586 (Ont. Div. Ct.) for the proposition that sections 197, 198 and 204(1) did not relate to the same matters. L.R. 3 Ex. 137. 3 O.L.R. 659. Hanrahan was a case in which bets were taken at a racecourse on races held at another location. Saunders (Ont. C.A.), supra, at 43-44. m  3 0 2  3 0 3  304  3 0 5  Ibid., at 48.  78  observed that section 198 stated the penalty for keeping a common betting-house, a common gaming house and a common bawdy house. The latter, he wrote, was a "very disreputable and grave offence in the eyes o f every o n e . "  306  But, in his view, there was  an "obvious gap" between leasing a licensed booth from an incorporated association and operating a "bucket shop" which "might w e l l be considered a menace to m o r a l s . "  307  Judge Meredith considered himself bound b y English precedent on this issue, but questioned the wisdom o f it: ... to hold that one is guilty o f a crime i f he ply his business under an umbrella, and not guilty o f any offence but carrying it on quite lawfully, i f he fold the umbrella and p l y it under the greater canopy o f the sky, can hardly be a satisfactory result to anyone. 308  On the second issue, Judge Meredith cited  Stratford Turf Association v. Fitch  309  for the proposition that section 204(2) made betting legal on the racecourse o f an incorporated association during a race meeting. He took the view that the Code must be interpreted as a whole, and hence the saving provision qualified sections 197 and 198. He was remarkably frank in his criticism o f the alternative view: Are we then to attribute to Parliament the absurdity o f enacting, in one line, that bets might be recorded, but, in another, that they should not be made; o f doing that which no man in his sober senses would do? I decline to do so; and am firmly o f opinion that many o f the inconsistencies, which appear to render an enactment defective, exist rather i n defective range o f vision than in errors o f Parliament. 310  Accordingly, he voted to quash the conviction. Three months later, the Supreme Court o f Canada heard arguments in  Saunders.  The Honourable C h i e f Justice Fitzpatrick writing for the majority, ruled that the betting  Ibid., at 49.  Ibid., at 48-49. A bucket shop is a place "kept and resorted to for the sole purpose of gambling". Ibid., at 50.  (1897), 28 O.R. 579.  79  booth constituted a "place" within the ambit o f the Code based on the British precedent  Kempton Park, and took the view that section 204(2) created a distinct and separate statutory offence.  311  The Court issued a 4-2 decision affirming the Court o f Appeal's  decision and upheld the conviction. Thus, the Court o f Appeal decision laid down the applicable law. The Honourable M r . Justice Meredith's scathing dissent remains noteworthy for two reasons. First, it reflects a personal view that racetrack gambling was not a disreputable activity worthy o f the penalties imposed by the Code, nor that it was a widespread social problem that merited legal sanction - logic derived from spatial context rather than abstract legal principles. Second, Judge Meredith's comments reflect an element o f geographic specificity with a desire to develop the common law i n accordance with local particularities rather than rigidly applying British precedent: W e are not blindly to follow any decision, without regard to differences in the enactments, or different conditions that may obtain in the different countries. This is not a great horse-racing country; incorporated racing associations are comparatively very few; and many o f the "evils," as well as o f the benefits, o f horse racing, so common there, are little, i f not at all, known here. The evils really aimed at there might be very different from those actually aimed at here; and that, as it seems to me, is made very plain by some of the provisions o f the Criminal Code not at all to be found in the Imperial enactment; differences not wholly insignificant. 312  Contemporary legal geographers should be pleased with his recognition that the use o f precedent is dependent upon "the interpretation o f decisions that may have been made in vastly different geographic and historical m i l i e u s . "  *  310  311  312  3 1 3  *  313  *  Saunders (Ont. C.A.), at 51.' The King v. Saunders, (1907), 12 C.C.C. 174, (S.C.C.), at 179. Saunders, (Ont. C.A.), at 50. Forest, "Placing the Law in Geography," supra, at 5.  80  Commentary following the report in the Canadian Criminal Cases o f the Supreme Court o f Canada decision in Saunders noted that it remained to be decided whether bookmakers could legally carry on their activities by dispensing with the booth, moving through the crowd displaying the odds on a card, and recording bets in a memorandum book, as their British counterparts had following Hawke?  u  Perhaps it remained to be  decided judicially, but the individuals who managed the Woodbine determined that the Kempton model would be implemented for the 1907 Plate. The most outspoken proponent in favour o f racetrack betting among the press, the Toronto World, reported: The new betting system w i l l be inaugurated this afternoon. The only difference is, the law demands that the layers keep moving. The bookie w i l l hold a little hand card containing the quotations and a cash bag hung over his shoulder. The ticket and sheet-writer w i l l follow the leader around, while the cashier w i l l be over in the little old stand, where no bets are taken and only money is paid out to the winners. This method w i l l satisfy the legal end, it is said. Queer thing the law! 315  B: Rex v. Moylett et a /  316  In the aftermath o f the Saunders decision, the bookmakers at the 1907 running o f the K i n g ' s Plate took M r . Justice Meredith's comments to heart, "folded up their umbrellas" and roamed the betting enclosure soliciting wagers directly from patrons. N o longer was there a place in the betting enclosure at Woodbine specially reserved for taking wagers. Bookmakers paid an entrance fee with the rest o f the general public and did not occupy a fixed position, or use any desks, umbrellas or structure o f any kind to mark a place for taking bets. Instead, each o f the fifty bookmakers in the enclosure  3 1 4  3 1 5  3 1 6  (S.C.C.), supra, at 186. "No 'Sure Thing' Is Called to Win Plate," Toronto World, May 18, 1907. Rex v. Moylett et al, (1907), 15 O.L.R. 348 (Ont. C.A.).  Saunders,  81  (about one-sixth o f an acre in size) moved within a small radius of about five to ten feet.  317  The  Hamilton Spectator described the scene:  Instead o f using booths, the bookmakers, satchels in hand, occupied places on the lawns and exhibited odds on small slates. They were supposed to keep moving, just like peanut vendors with their push carts, but, like the latter, the majority o f them remained in the same place practically all afternoon. Consensus was that the new system was a farce and the public was going to suffer by the change. About the only thing accomplished b y the change was putting the public to a lot o f unnecessary inconvenience. ... The bettors had to fight their way through a struggling mass o f humanity in order to get close enough to see what the quotations were or to place their wagers. That did not deter them any, and i f there were any M o r a l Reformers present they must have realized that little had been accomplished b y the change. 318  Following the last day o f races, police arrested two bookmakers and charged them with running a common betting house. The police magistrate convicted the two defendants on the basis o f Saunders and submitted a stated case to the Court of Appeal asking i f his decision was correct in law. The Court unanimously ruled to quash the conviction i n three separate judgments. The Court avoided the interpretive divide over the application o f section 2 0 4 ( 2 ) by deciding the case on the basis o f the English  Kempton Park precedent. The lawyer for  the Crown argued that it was a fair inference that the bookmakers kept a "place" by moving within such a small radius, so as to effectively localize their business in a fixed and ascertained spot.  The Chief Justice rejected this argument and stated:  ... i n every case that can now be regarded as a binding authority, there was something more than the mere presence o f the persons on the ground to indicate that measure o f localization, fixity and exclusive right of user which is necessary in order to constitute "a place." 321  3 1 7  Ibid., at 349.  3 1 8  Reproduced in Cauz, The Plate, supra, at 115. Then changed to section 235(2) by the 1906 statute revision process: see (1906), R.S.C, c. 146.  3 1 9  3 2 0  3 2 1  Moylett, supra, at 351. Ibid., at 352.  319  82  M r . Justice Osier also ruled to quash the conviction. He followed the reasoning in  Kempton Park, interpreting "other place" ejusdem generis with the words "house, office, or room" as something equally structurally defined and capable o f being used in similar fashion. H e also constructed the Code using principles, analogous to the Saunders case, but curiously absent from that decision in which he upheld the conviction: To the ordinary mind, indeed, there seems to be something o f the absurd i n speaking o f such a "place" as ... a "disorderly house," or betting house, opened, kept or used by the defendants for the purpose o f betting with others who, like themselves, happen to be, or have the right, by permission o f the owners, to be, on any part or portion o f such place. Betting or the business o f a bookmaker, whether carried on upon a racecourse or elsewhere, is not prohibited by the Act. If the Legislature intends to prohibit it, it is easy for it to say s o . 322  M r . Justice Featherton Osier certainly had insight into Parliament's intention with respect to racetrack betting: his brother Edmund B o y d Osier was the vice-president o f the Ontario Jockey Club and the Conservative Party Member o f Parliament for the riding o f West T o r o n t o .  323  In a terse concurring judgment, M r . Justice Meredith also voted to quash the conviction. A s in Saunders, Judge Meredith was troubled with the application of English precedent in a state making the transition from colony to a nation with its own developing law and jurisprudence: This case is in principle quite the same as that o f [Kempton Park] which settled the law as to the proper interpretation o f the enactment there in question, in England, irrevocably, so far as the Courts o f Justice are concerned; the two cases are quite indistinguishable from one another; and, notwithstanding some material differences between the Imperial and Canadian enactments upon the subject, as well as material differences in the circumstances which existed when the Canadian enactment was passed, and still exist, in England from those in Canada,  3 2 2  Ibid., at 354.  Canada, Debates, (1909-1910), at 888. A third Osier brother, Britton Bath, was also a Toronto lawyer: see Michael Bliss, William Osier: A Life In Medicine, (Toronto: University of Toronto Press, 1999), at 29.  j 2 3  83  the law here has been declared to be governed by that case in a Court the judgment o f which is binding upon all the Courts o f this Province. 324  Judge Meredith distinguished Saunders stating that in this case, no such place was kept, and suggested that the state o f the law rendered the situation potentially absurd. He then •  acknowledged the binding principle o f  •  32  stare decisis and voted to quash the conviction. "  C: Comment A more conceptually consistent result would have emerged had the Court o f Appeal's dissenting interpretation o f section 204(2) been adopted in  Saunders,  recognizing that the trend i n regulating betting during this time was, as M r . Justice 32(  Garrow noted, a policy leaning towards the legalization o f racetrack betting in Canada. That this was the intent o f Parliament in enacting section 204(2) is revealed by the following exchange in the Parliamentary Debates: On section 204, Sir J O H N T H O M P S O N . I suppose it is m y duty to call the attention o f the committee to the addition o f sub-section 2. which proposes a relaxation in regard to betting on the race-course o f an incorporated association while a race is going on. M r . D A V I E S . It is just as well that the committee should understand that we are legalizing betting on a race-course. I do not know that the committee is prepared to do that. M r . C U R R A N . The law has always allowed betting on horse races. M r . D A V I E S . I do not think you can recover a bet on a horse race.  j Z 4  3 2 5  c  Moylett, supra, at 355-356. Ibid.  In addition to Parliamentary intention, the Stratford Turf case, mentioned by Mr. Justice Meredith in Saunders, held that an agreement between the incorporated association owning the racecourse and a bookmaker for betting privileges at the racecourse was a legal contract/ Had section 204(2) rendered such arrangements illegal, the contract would be void as contrary to public policy. The only explanation from a policy perspective for the majority's decision not to adopt a similar construction was a desire to not extend the protection of section 204(2) to off-track betting houses that fell within the scope of section 197. 3 2 6  26  84  M r . C H A P L E A U . This does not make the bet a legal debt, but it prevents it being a criminal act. M r . D A V I E S . W e l l , it is the most extraordinary kind o f legislation I ever knew. In the one case you make it criminal for a man to play a game o f whist, a game o f skill, for ten cents, i n a railroad car, and in the other case you relieve him from a criminal action i f he bets a thousand dollars on a horse race. 327  [Emphasis added] Given that it never was a criminal act for an individual to place a wager on a horse race, and given the stated desire to maintain the unenforcability o f horse racing bets under contract law, it appears that Parliament intended this amendment to insulate racetrack bookmakers from criminal sanction. The comments o f the members o f Parliament show no indication that Parliament intended bookmakers who operated a booth i n a racetrack betting enclosure to face conviction under the common betting-house provisions; in fact, the above-emphasized portions o f the debate indicate a contrary intention. But the Canadian judges were bound by the  stare decisis principle to follow the British  interpretation o f the similar statute and apply  *  Kempton Park accordingly  *  *  The hallmark o f this series o f Canadian and British decisions is that divergent conceptions o f the geographic context dictated the abstract legal principles upon which the judges reached their respective decisions. The rule o f law rests upon the belief that legal discourse is composed o f objective rational principles applied to specific circumstances. L a w "seeks to provide the impression that it is merely a conduit through which the facts speak."  But as Pue notes, when this juridical "common sense" piles  House of Commons, (1892), Debates at 2976-2977. In his final comments, Mr. Davies is referring to section 203, pursuant to which it was an offence to gamble on public conveyances. Blomley and Clark, "Law and Geography," supra, at 440.  3 2 7  3 2 8  85  abstraction upon abstraction, the result is a form o f anti-geography due to the absence o f •  329  i  spatial context. However, the opposite process occurs i n these cases, a type o f legal metageography in which the physical and temporal nature o f the place in question led to a reliance upon divergent judicial techniques rendering inconsistent interpretations o f the legal concept o f ' p l a c e . ' O n one side is Judge H a w k i n s ' decision, which rested on the interpretation o f the Legislature's purpose in enacting the 1853 Act. He defined that purpose as the suppression o f all professional or  commercial gambling. W i t h this express  purpose in mind, his interpretation o f the term "other place" afforded a literal reading that resulted in the widest possible spatial scope o f the Act. Therefore, the only limits upon the Act's scope o f enforcement under this approach was the nature o f the persons resorting to the place — professional betting men — and the requirement o f a basic descriptive element for the locale. In contrast, the majority in the Court o f Appeal and House o f Lords in  Kempton  Park rejected the purposive interpretation, and suggested that the Act was intended to target places akin to a house, thus supporting an ejusdem generis reading o f "other place" and resulting in the most spatially restrictive interpretation. The House o f Lords characterized the existence o f enclosed betting rings for half a century prior to the passage of the 1853 A c t as a "material fact."  330  Thus, because the betting ring was  already a 'place' that preexisted the 1853 A c t , it could not have been an "other place" for the purposes o f an A c t targeting a kind o f gaming that "has o f late sprung up."  j 2 9  330  Pue, "Wrestling with Law," supra, at 568. Kempton, (H.L.), at 151.  86  Delaney recognizes this ability of judges to shape sociospatial relations by manipulating the spatiality o f a legal rule in order to ensure the relevant conditions for a particular interpretation.  331  Either approach taken by the respective judges is acceptable  legal reasoning. What these two cases illustrate, is the manner in which the bench's array of interpretive techniques facilitated different approaches to divining parliamentary intention and produced distinct spatial and social consequences. In this regard, we see the ironic power o f law to create space by denying the existence o f a 'place.' A s we see in the next section, the result o f this judicial construction o f a barrier around racetracks was the same in Canada as in Britain: moral reformers, as we shall see below, conceded the racetrack in exchange for the prohibition o f public betting everywhere else.  * Racetrack interests hoped that the  *  *  Moylett decision would end the debate. The  Toronto World commented: The court o f appeal has decided that betting as conducted at the Woodbine is entirely within the limits o f the law and has quashed the conviction o f Patrick Moylett by Magistrate Denison o f the police court. The decision o f the judges i n this case w i l l meet with the approval o f the general public, who feel that it is a man's own business i f he chooses to lay a wager on his fancy when attending the races and that the meddlers have no right to interfere. It is to be hoped that there w i l l be no more interference by the authorities and that the affairs o f the Jockey Club can go on unmolested by the sect who are built on the narrow gauge principle. 332  Faced with an unlikely chance of success on appeal, the reformers instead turned their efforts to lobbying Parliament for a legislative amendment. Immediately following the  Moylett decision, one observer identified only as "Henderson" commented on the prospects of a law reform campaign: "I don't think they w i l l succeed i f they do. The  ' Delaney, "Geographies of Judgment," supra, at 61. "Note and Comment," Toronto World, November 16, 1907.  2  87  Jockey Club have as much influence as the Justice you know."-'  33  H i s comments proved  to be prescient. VII: C a n a d i a n Aftermath  Moylett was decided in November 1907. In the subsequent two years, the M S R C C hired lawyers to draft amendments to the Code that would end betting at the horse races.  334  There is evidence that Reverend Shearer wrote the Prime Minister and  Minister o f Justice on a number of occasions requesting amendments. Shearer also wrote James Macdonald, the editor o f the the government.  335  Globe, imploring him to put additional pressure on  Macdonald complied, with a series o f strongly worded editorials  goading Parliament to act: Is it true that the thousands o f decent citizens who detest gambling, but who have made the Woodbine a great social event, are now to regard themselves as merely a useful veneer for the gamblers and their associates who give a yellow streak to Toronto life during the race meets? A n d is there one argument presented by the advocates o f racetrack gambling at Ottawa this week that was not used i n defence of Spanish bull-fighting or o f cock-fighting? ... What about the lowering o f the moral standard, the ruin o f reputations, and the home tragedies that accompany and flow from the gambling habit? O f course they should be strong enough to resist the temptation. But laws are not made for the strong, but for the w e a k . 336  The M S R C C sought to rally public support by sending a draft sermon on the evils of racetrack betting to every Methodist church in the country.  337  In addition, the M S R C C  circulated a number o f anti-racetrack betting petitions which they mailed to Parliament  Star, "Legislation Must Now Be Sought", supra note 6. The commentator is identified as an associate of T.C. Robinette, co-counsel for the defendant bookmakers. As per comments made by Member of Parliament H.H. Miller, House of Commons, Debates, 19091910, at 859. • As per Minutes of the executive of the MSRCC, April 17, 1908, as reproduced in "Evidence of the Special Committee," supra, at 583-584. "Gambling: The Courts: The Commons," Toronto Globe, January 22, 1910. Also see "The Bookmaker, A Parasite," Globe, January 25, 1910; "Root out the Gambling Evil," Globe, February 1, 1910; "Parliament and Racetrack Gambling," Globe, April 7, 1910; and "The Racetrack Gambling Bill," Globe, April 16, 1910. As per the evidence of Reverend Shearer, "Evidence of the Special Committee," supra, with draft sermon at 509-514. i i i  3 3 4  3 3 5  3 j 6  3 3 7  88  between 1907 and 1909 and presented at the 1910 Parliamentary Select Committee considering the proposed amendments. Plate flourished, as the  In the meantime, betting at the 1909 K i n g ' s  Toronto Telegram reported that over thirteen days, the fifty to  eighty bookmakers working the event took in 2.6 million dollars in wagers.  339  In December 1909, the Honourable H . H . Miller, the Liberal member for West Grey, presented the b i l l proposing amendments to the Code for second reading.  340  He  announced that he was representing the M S R C C and hence introduced the proposed legislation as a private members bill. This was likely due to pressure from his party because o f an approaching election and uncertain public opinion concerning the merits o f the proposed legislation. The B i l l proposed amending section 227, the former section 197 provision regarding betting houses, to read "any place" rather than "any house, room, office or other place" and to expunge the saving provision section 235(2), the former section 204(2).  341  In support, M i l l e r read a letter from Chief Inspector Archibald stating  that section 204(2) was responsible for the "present undesirable conditions."  342  The " M i l l e r B i l l " induced a split in Parliament that transcended party lines. That year's  Canadian Annual Review of Public Affairs called it the second "most widely  discussed legislation o f the Session."  343  The Liberal Minister o f Justice Sir A l l e n  Aylesworth made the front page of the Toronto  Mail and Empire for his dismissal of the  legislation as a "Yankee B i l l : " ... the measure presented by M r . M i l l e r I w i l l christen the 'Yankee b i l l ' . The British b i l l strikes at the person, the Yankee b i l l strikes at the place. One is a 3 3 8  Ibid., at 584.  3 3 9  As per H.H. Miller, House of Commons, Debates, 1909-1910, at 866-867 and 915. Ibid., at 856. No debate accompanied the first reading one month earlier.  j 4 0  3 4 1  3 4 2  j 4 3  Ibid., 863 and 867. Ibid., at 866. Canadian Annual Review of Public Affairs, supra, at 239. The most widely discussed legislation was a  proposal to increase the Navy's budget.  89  model statute, well designed to cure the evils which have grown up on the race course; the other is either incoherent or it goes so far as to prohibit the smallest wager between individuals. It would not only affect the racecourse, but it would also make it a crime to play bridge or even checkers i f a cigar was a stake. 344  In the United States o f America between 1887 and 1910, moral reformers had achieved the prohibition o f horseracing i n all but six states, resulting in the closure o f ninety-five tracks.  343  The 'British B i l l , ' introduced in 1906 in the aftermath o f  Kempton Park,  stopped well short o f outright prohibition, but certainly struck at the 'place.' VIII: B r i t i s h A f t e r m a t h In Britain, the  Kempton Park decision forced a fundamental shift in the N A G L ' s  strategy. Following the case, a situation arose in which bookmakers operating from pubs continued to be convicted despite working seemingly outside the scope o f "owners, occupiers and managers" as laid out by  Kempton Park.  346  Accordingly, the House o f  Lords appointed a Select Committee in 1901 to investigate legislative options. John Hawke attempted to stick to the League's principles and demand an end to upper class betting, but was swiftly rebuked. The Committee chair said: I do not suppose that you wish to insinuate that these clubs, such as Tattersalls, the Albert, the Victoria and the Beaufort, are ill conducted clubs; they are respectable c l u b s . 347  The Committee recommended a 'Street Betting A c t ' which would make betting illegal i n any public place, enclosed or otherwise, but permit racecourse bookmaking to continue within enclosures at the track.  348  "View of the Minister of Justice," Toronto Mail and Empire, April 8, 1910. John Rosecrance, Gambling Without Guilt: The Legitimation of an American Pastime, (Belmont: Wadsworth Inc., 1988), at 34-39. Racetrack interests eventually convinced state governments that significant profits could fill public coffers through a licensing system, leading to a full revival in horseracing by the 1920s. Dixon, "Class Law," supra, at 106-107. Ibid., at 107, from Report on the Select Committee of the House of Lords on Betting (1901-1902), 445 H.C. 389. 3 4 4  3 4 5  3 4 6  347  Thus, the N A G L was faced with little choice but to campaign for the passage o f the proposed  Street Betting Act, a result achieved i n 1 9 0 6 .  349  The A c t baldly exempted  upper class gambling not only by expressly excluding racetracks from its reach, but by limiting its application to premises in which the public had a right o f access: certainly not the elite members-only social c l u b s .  350  The passage o f the A c t concluded an effort by  the racetrack aristocracy to disassociate itself from "disrespectable" betting places by encouraging the view that working class gambling, and the places it occurred were the real 'evils' that required new legislation for suppression.  351  The effect o f the A c t was not  a reduction in betting; instead, bookmakers and working class gamblers were forced to circumvent the law through participation in elaborate underground operations and protection rackets, while racetrack bookmakers operated as a commercial gambling monopoly, unhindered by law, and unwilling to extend credit to those with a suspect  35^ means o f repayment.  " Canadian legislators and moral reformers in favour o f  suppressing racetrack betting would find themselves similarly constrained. I X : The C a n a d i a n B i l l In Ottawa, H . H . M i l l e r made it clear that his proposed B i l l did not seek to interfere with the racing o f horses, which was seen by farmers as necessary to improve breeding stock. In addition, he emphasized that the B i l l did not seek to prevent bets on horse races between private individuals. Rather, what the M S R C C sought was the suppression o f the business o f betting: "its object is to utterly, entirely, completely Ibid., at 105. It should be noted that until 1895, the Lord Chief Justice was a member of the Jockey Club, and many Lords frequented the track and aforementioned social clubs. 348  3 4 9  (1906),6 Edw.7,c.43.  350  See section 1(4) for the definition of "public place" and section 2 for the racecourse exemption. Dixon, "Class Law," supra, at 121. Ibid., at 103.  351 352  91  suppress and prevent... gambling with or upon racetracks in any place in Canada . "  3 5 3  Miller also felt the need to attempt to respond to the critiques o f Parliament raised by the Court o f Appeal: Neither it is the endeavour by this legislation to correct any past bungling on the part o f the Parliament. I say that because many people have had the idea that the present state o f the law, which appears to them absurd, is the result o f error or lack o f skill on the part o f legislators o f the past. ... Parliament has never up to this time, endeavoured to prohibit the business o f gambling upon racetracks. 354  Members o f Parliament with a vested interest in horse racing fought back vigorously. E . B . Osier, himself a devout Anglican and the son o f a preacher, believed that legislation could not prevent "evils incident to human nature."  355  He mentioned  "wild gambling in mining stocks" and wagering on football, baseball, and games o f bridge that in and o f themselves daily surpassed the weekly Woodbine totals: The Woodbine races have become a social affair i n Canada, they naturally attract a good deal o f attention, and it is a very easy and pleasant matter for the reformers to train their guns on that one particular event and make very strong and serious statements in connection with i t . 356  Opponents o f the B i l l suggested that itwas open to charges o f hypocrisy on the ground that it made it illegal to bet with bookmakers but not private individuals. M i l l e r argued that private betting was impossible to police and attempted to justify the necessity of suppressing racetrack betting by claiming that children needed protection from its evils. The Honourable M r . Barker, also a member o f the Hamilton Jockey Club, argued that racetrack betting was unfairly singled out for condemnation. He suggested that M i l l e r had no connection with racetracks, their procedures, or the betting that took place. He charged that stories o f youth frequenting horse races and losing — or even worse,  3 5 3  Canada, Debates, 1909-1910, at 856-857.  3 5 4  Ibid., at 857. Ibid., at 889.  3 5 5  92 winning money on wagers — were untrue because o f strict restrictions passed by clubs forbidding youth entrance to racetracks: I have no doubt that the Montreal, Toronto and Hamilton clubs are as anxious to protect the youth o f this country against danger o f that sort as is [Mr. M i l l e r ] . Does he arrogate to himself a greater anxiety for the morality o f the youth o f Canada than I have, or than [Mr. Osier] has? Does he suppose that because I happen to be a member o f a jockey club, I am less anxious than he to guard our youth? 357  Another typical exchange included the following: O S L E R : I have never known in, all my experience, o f the case o f one young man who has gone wrong from betting on the races. 358  M I L L E R : A man having the wealth of the honourable member for West Toronto moves in a circle and upon a plane where he naturally does not come in contact, as other people with less means and different associations do, with the evil results of race track g a m b l i n g . 359  A n additional point raised in opposition was the claim that legal public betting actually caused less harm by reducing odds, and hence losses, due to the greater demand to bet at racetracks than between private individuals."  60  A s had occurred i n Britain, the House voted to,refer the matter to a Select Committee for consideration. Police chiefs, horse breeders, recovering gambling addicts, racetrack lawyers, and Reverend Shearer gave evidence before the committee. Its final recommendations in A p r i l 1910 significantly narrowed the proposed amendments by permitting racetrack gambling to continue, and modestly limiting the number o f race meetings that a jockey club could hold annually. The debate prior to the third reading o f  'Ibid., at 890-891. ' Ibid., at Ibid., at 'ibid., at ' Ibid., at 1  894. 889. 918. 877.  93  the M i l l e r B i l l centred around whether to adopt the committee's recommendations or pass the M i l l e r B i l l in its original form. Those in favour o f eschewing prohibition for regulation argued from two positions. The first was that, like the alcohol industry, racetrack betting was well-suited for a licensing regime and could be rid o f 'evils' through regulatory surveillance.  361  The  second position drew a distinction between the racetrack and its patrons, and other offtrack gambling venues that facilitated betting on races continent-wide. M r . J.B. M c C o l l ' s comments regarding the committee's recommendations reveal a classic example o f a discursive dividing practice: They may w i n or they may lose. But, whether they lose or not, they have enjoyed their sport, they have had their outing. That is the form of recreation they take. They are not injured by it in any way, and to call these men gamblers would be absolutely wrong. With regard to the betting that takes place there, whether it is right or wrong, it is something that has grown up among the British people and has been going on for centuries. . . . They bet as an incident o f the sport, not with the gambling instinct all. ... To take the other side for a moment, I may be asked, do you pretend to argue that there are no evils resulting from racetrack gambling? Certainly, very many evils have grown up from race-track gambling. What are they? What takes place in the pool rooms and on the streets? What takes place by the operation o f handbooks, in barber shops, in third-rate hotels, in butcher shops, and so on? ... That is what can be termed strictly race-track gambling. What I have described as taking place at a well conducted race-meet is not racetrack gambling, but an act which is an incident and an incentive to horse362  racing. In addition, there was little patience in Parliament for the moral reformers acting like Puritans by classifying a centuries-old British cultural tradition as a criminal practice:  Ibid., at 6438. Ibid., at 6434-6435. Though used interchangeably with betting and wagering throughout this thesis, the term "gambler" in the eighteenth century was pejorative slang for an individual who cheated or bet exorbitant amounts. "Gaming" was defined as "to play wantonly and extravagantly for money." On the other hand, the terms "betting" and "wagering" were reserved for a more respectable "pledge upon a casualty or performance." As Clapson observes, the term gambling "was associated with the lower-class, with cheating and with indulgence." See A Bit of A Flutter, supra, at 1. For these definitions, Clapson cites Dr. Samuel Johnson, A Dictionary of English Language, (1983, first published in 1755). 361  362  94  We have had in times past men o f very extreme views. Oliver Cromwell attempted to absolutely prohibit horse-racing in England; he also issued an order forbidding the eating o f mince pie. W e l l , Oliver Cromwell is gone, but horseracing still exists in E n g l a n d . 363  A s does mince pie. Unlike white slavery or opium, racetrack betting did not provide a convenient foreign villain or moral imperative that justified its criminalization. In fact, its 'Britishness' seemed to render it legitimate. The racetrack was patronized by no less than royalty, let alone Toronto's social elite. These people were not 'criminals,' they were just being 'British:' The desire o f the ordinary British citizen to go to race meetings, to see contests between horses and to bet on horse-races is a part o f the British character, and I do not see w h y we should interfere with that desire in the way that is proposed in this legislation. The Britisher values above all things his liberty o f personal conduct and he resents the attempt o f somebody else to interfere with i t . 364  A s a result, the debate turned to the issue o f legislating morality versus British liberal conceptions o f the individual's relationship with the state and law: It is the right o f the British people to settle moral questions for themselves, and for 150 years they have never admitted the right of any secular body to settle moral questions for them, or to regulate their conduct. It is the right o f the individual, the liberty o f the individual, and the only way he can develop character is by exercising the right to decide moral questions for h i m s e l f . . . that support which all good citizens give to the law would not be given to the law passed under these circumstances. 365  The emphasis on British liberalism was not accidental in light o f the argument that M i l l e r ' s B i l l was a 'Yankee B i l l : ' " But there is this difference between the American character, and the British character. In the British character there is a love of liberty, and British institutions are a success. There is a failure in personal liberty in the United States, and the result is that American institutions are called into question. .. .In the United States ... they are trying to improve character by putting restrictions on it, while at the  Ibid., at 6445. Ibid., at 6512. Ibid., at 6489-6490.  same time the great public rights and liberties that should be maintained are disappearing. 366  For three days, the House debated late into the evening before accepting the committee's recommendations and rejecting the M i l l e r B i l l . The resulting amendments to the Code changed the framework for regulating racetrack betting in two respects. First, the definition o f a common betting-house was amended to include the following subsection: 2. The word 'place,' as used i n this section and in the preceding section, includes any place, whether enclosed or not, and whether it is used permanently or temporarily, and whether there is or is not exclusive right o f user. 367  This provision was designed to eliminate the handbook keepers operating outside o f racetracks and i n the ubiquitous third-rate hotels and barber shops. Second, the saving provision found in the former section 204(2) was extended to the former sections 197 and 198 so as to remove any doubt that bookmakers who took bets at the racetrack, and the race associations themselves, did not operate a common betting-house.  368  Nonetheless, 1910 spelled the end o f the bookmaker at the Queen's  Plate, as pari-mutuel betting machines provided a more orderly and efficient means o f placing bets through the instant calculation o f odds based upon the total amount wagered by all betters.  369  Reaction to the amendment" was decidedly mixed. In the  Globe, Macdonald  praised the government for taking some measure against betting, but declared that the war 170  was not over.  The World reflected the views o f racetrack interests in expressing relief  366  Ibid., at 6514-6516.  3 6 7  An Act to Amend the Criminal Code, section 1,(1910), S.C, c. 10.  Ibid., section 3. Cauz, The Plate, supra, at 121. Churchill Downs had used pari-mutuel machines for the Kentucky Derby since 1908. "The Racetrack Gambling Bill," Globe, April 16, 1910. 368  3 6 9  3 7 0  96  at the defeat o f the M i l l e r bill and optimism about a regulatory regime that ended the legal uncertainty surrounding on-track betting.  371  Radical labour press such as Cotton's  Weekly was more concerned with promoting socialism and fighting child labour, but the oldest labour paper in Canada, the  Industrial Banner, felt that the government shirked its  duty to 'make good:' We have no kick coming against horse racing as a sport, but we believe the government showed want o f moral backbone when it tampered with the question. The moral sentiment o f the Canadian people we believe is not satisfied that the government has sought to compromise by making the evil a little less pronounced. If the evil does exist, and nobody denies that fact, teen [sic] our legislators at Ottawa, both Grit and Tory, should have faced the music. W e don't believe the course taken meets with the approval o f the Canadian people. 372  M i l l e r also pledged that the battle would continue, but Shearer and the M S R C C implicitly acknowledged defeat, turning their energies to other campaigns. B y 1914, the M S R C C ' s annual meeting's agenda examined issues under the following headings: weekly rest day; the Canadian Indian; the church and industrial life; the labour problem, child welfare; the challenge to the church; the problem o f the city; the problem o f the country; social service as a life work; commercialized vice and the white slave traffic; immigration; political purity, temperance; prison reform; and humanising r e l i g i o n .  373  X : Summary The M o r a l and Social Reform Council o f Canada and the individuals and groups that preceded its formation viewed themselves as engaged in a continuous project o f lobbying politicians to uplift the nation's moral character. In this case, legislation and English precedents structured the legal conflict in a manner that permitted only the  "Minimize Racetrack Evils," World, April 11, 1910. "We Will Make the Evil a Little Less Pronounced," The Industrial Banner, (London: Labour Educational Association of Ontario, May 1910). Discussing the debate in terms of morality was not surprising given the involvement of the Trades and Labour Congress of Canada in the MSRCC. 3 7 1  3 7 2  narrowest interpretation o f the legal term 'place,' thus preserving bookmakers' business at the racetrack. The Saunders decision gave reformers a false hope that racetrack gambling could be suppressed, later dashed by the  Moylett case and definitively ended  with the 1910 amendments to the Criminal Code. More importantly, perhaps, unlike the Chinese gambler, the horseracing meritocracy had the means and voice to resist the formal legal regulation o f their beloved British tradition. In seeking to suppress racetrack betting, the M S R C C targeted the social and political elite o f Ontario society. Their power and influence in the Courts and Parliament cannot be underestimated as a factor that led to the failure o f the anti-betting campaign. A more preferable analytical perspective recognizes the relationship between space, law and power: the problematic judicial categorization o f the racetrack as a place where legal betting occurred, but only under the particular circumstances in Moylett, constrained the possible action o f the legislators. The resulting legislation officially separated the racetrack from criminal betting houses such as Chinese gambling dens, and solidified the perception of the racetrack as a respectable, gentlemanly sporting venue.  Allen, The Social Passion, supra, at 19.  98  C h a p t e r F o u r : Conclusion  A n interesting and enduring feature o f Canada's gambling laws is that they provide for legal gaming to occur only in particular places. Following Britain's legislative framework, Canada's first gambling laws sought to regulate venues run for the purpose o f carrying on a betting business. In addition, during the construction o f the national railway, Parliament saw fit to ban the playing o f cards on public conveyances. Meanwhile, private bets between individuals were not regulated, and they were difficult to enforce in the courts. In Canada, as in Britain, moral reformers recognized that the most public display o f betting occurred at the racetrack. The use o f litigation and political lobbying to suppress racetrack betting resulted in stricter legislation that prohibited all betting in public, save for racetracks. This was i n no small part due to the influence that racing interests had in the courts and in Parliament. In the meantime, fifteen years o f police surveillance pushed Chinese gambling dens further and further into the back rooms, as these socially marginalized and disempowered people did not have the means o f mounting a similar campaign o f resistance. This thesis examined the historical process that resulted in a spatially selective legal regime governing Canada's gambling industry, and shaped the manner in which particular gaming venues are popularly regarded. I contend that reference to the relationship between law, space and moral regulation best describes the complex process o f constructing moral and immoral places. One might suggest that the development o f a legal exemption for racetrack betting was due more to class dynamics than geography. The historical evidence leads me to another conclusion. Class analysis presumes homogeneity on what was a complex political issue encompassing morality, liberalism  99  and the role o f law. The unequivocal reality is that the gambling debate blurred class boundaries in Canada and the United States o f A m e r i c a .  374  The record o f the public  debate on racetrack betting in Ontario shows the social and political elite o f the country divided on the issue.  375  Certainly, racetrack owners had political allies. However, to  generalize class as the sole determining factor in the creation o f a separate legal category for racetrack betting is fallacious. It is also an oversimplification to suggest that race was the sole determining factor in the creation o f a spatially selective regulatory regime. Anderson's work on the 'idea o f Chinatown' shows the inextricable link between race and place. I have sought to show that a combination o f discursive elements relating to nationalism, religion, race, morality, law and liberalism converged to construct place. Indeed, racial discourse was a central component i n the social construction o f Chinatown and its gambling dens, as was the 'Britishness' o f the racetrack in the debate over outlawing betting. But this is only part o f the story. The role o f law in the process o f creating legal distinctions between the two venues was more subtle than, for example, an express legislative provision forbidding the games o f fan tan and pak kop piu - a remedy pursued in N e w South Wales, Australia.  376  Instead, Canadian law facilitated the regulation o f the place as opposed to prohibiting the activity itself. It was this convergence o f racial discourse with institutional practice, namely police surveillance, that created the idea o f the 'underground' Chinese gambling den, not express racial distinctions in the legislation.  See Nicola Beisel, "Class, Culture, and Campaigns Against Vice in Three American Cities, 1872-1892," (1990), 55 American Sociological Review, 44-62. Beiselfindsthat anti-vice societies in Boston and New York garnered upper class support in Boston and New York, but not Philadelphia. Discerning what subordinate classes thought is difficult. Some working class betters appeared before the Special Committee to avow that racetrack betting had ruined their professional and family lives. The labour press did not devote much space to reporting on the issue. 3 7 4  3 7 5  3 7 6  An Act to declare fan-tan and pak-a-piu to be unlawful games, S.N.S.W. 1905, No. 35.  100  Hunt and Wickham describe power as the summary term for the vast array o f techniques that coalesce as governance.  Three points are important with respect to  377  power: it is constituted within a field o f knowledge; its exercise invokes resistance; and it permeates individual relations beyond traditional relationships o f class, state or subject.  378  The regulation o f Chinese gambling dens and Ontario racetracks involved a particular type o f governmental technique or power dynamic: the formal deployment o f law. Working within the perspective o f moral regulation, the theoretical aspect o f this thesis was first and foremost concerned with law's role in influencing the power-space nexus and i n particular, the manner i n which legal practices converged with fields o f non-legal knowledge to create 'governable spaces.'  379  In order to understand the mutually constitutive relationship between knowledge and power, it is necessary to construct the discursive lineage that creates a body o f knowledge.  380  Discourse in this sense is more than language; it refers to more than  beyond the words used to convey meaning: What the concept captures is that people live and experience within discourse in the sense that discourses impose frameworks which structure what can be experienced or the meaning that experience can encompass, and thereby influence what can be said, thought and done. Each discourse allows certain things to be said, thought and done and impedes or prevents other things from being said, thought and done. 381  Thus, discourse also describes the sets o f social and institutional practices or symbols that convey the substance o f how a particular object is perceived.  382  The  convergence o f the moral regulation perspective with geographic theory recognizes that  Hunt and Wickham, Foucault and Law, supra, at 81. ™ Ibid., at 12-17. 3 7 9  Blomley, Law, Space, and the Geographies of Power, supra, at 58; Rose, "Governing Liberty," supra, at  147; and Rose and Valverde, "Governed by Law," supra, at 548-549. 3 8 0  Hunt and Wickham, Foucault and Law, supra, at 6-7.  3 8 1  Ibid., at 8.  101  discourse and its institutional manifestations operate in specific spatial contexts. The importance o f this connection is reflected in the following passage from Lefebvre: Space is not a scientific object removed from ideology or politics; it has always been political and strategic. If space has an air o f neutrality and indifference with regard to its contents and thus seems to be purely formal, the epitome o f rational abstraction, it is precisely because it has already been occupied and used, and has already been the focus o f past processes. Space has been shaped and moulded from the historical and natural elements, but this has been a political process. 383  Space is political and ideological. It is a product literally filled with ideologies. A s Foucault observed, "space is fundamental in any exercise o f p o w e r . "  384  Different  fields o f knowledge accompany different spaces: consider the different legal and moral consequences o f a man hitting another man with a stick in the street, as opposed to in a hockey arena. Hence, the significance o f recognizing 'place' within the moral regulation perspective is the discursive context provided by spatial specificity: how certain activities are discussed and debated depends upon where they occur. The mutually constitutive nature o f ideological geographies, physical geographies, legal geographies (and sub-geographies relating to race class and gender), in the 'becoming o f place' is apparent in the study o f governing Chinese gambling dens and Ontario racetracks. The Canadian culture o f moral reform "involved a re-working o f the way in which space was conceptualized by British imperialists in Canada."  385  Urbanization and development presented a host o f governable spaces for moral reformers. Hunt writes: There was widespread spatial regulation o f economic activity through the positive designation o f market locations or, negatively, the prohibition o f specific Ibid,, at 9; and Valverde, Age of Light, Soap, and Water, supra, at 10. H. Lefebvre, "Reflections on the politics of space," (1970), Antipode, 30-37 at 31, as quoted in Bakan and Blomley, "Spatial categories," supra, at 630. Foucault, "Space, Knowledge and Power," supra, at 252. Pue, "Revolution by Legal Means," in Patrick Glenn, ed., Contemporary Law, 1994, (Montreal: Editions Yvons Blais, 1994), 1-30, at 13. j 8 3  j 8 4  3 8 5  102  economic activities from designated locations; prostitutes and beggars were key targets o f such regulation. 386  Indeed, one o f the hallmarks o f the moral reform era was the way that moral discourses defined legal categories o f space and, in turn, dictated strategies of, in the case o f the Ontario racetrack, positive regulation, or for Chinese gambling dens, coercive suppression. Hunt's concept o f law as governance facilitates a broader analysis o f how the combination o f circumstances and discourse in disparate and unconnected social fields converge in such a way as to give rise to an ultimate legislative outcome.  387  A s Hunt  notes, morality operates in "complex connections with other elements," - in the case studies within this thesis, discourses o f law, liberalism, nationalism, race, religious belief and British tradition.  388  This thesis has sought to show that these discourses operated  differently in different settings, and therefore spatial context influenced the creation o f separate legal categories for places where the same type o f behaviour occurred - betting. As such, the legal history o f gambling in Canada is one example o f how the prevailing notion o f a liberal legal discourse that is universal across space and race, is revealed to be contingent upon place. Core liberal principles were cited to resist the infringement o f law at the racetracks, but not mentioned i n the  same series of debates that saw the  diminishment o f personal search and seizure protections in order to facilitate greater surveillance o f Chinese gambling dens.  389  Hunt, "Governing the city: liberalism and early modern modes of governance," in Andrew Barry, Thomas Osborne, and Nikolas Rose, eds., Foucault and Political Reason, (London: UCL Press, 1996), 167-188, at 174. Hunt and Wickham, Foucault and Law, supra, at 6. 3 8 7  3 8 8  Hunt, Governing Morals, supra, at 8.  3 8 9  Both amendments were introduced December 2, 1909: Canada, Debates, 1909-1910, at 856.  103  Foucaultian scholars identify the rise o f disciplinary society as an outgrowth o f the problem of governing while preserving the principle o f individual freedom. Rose writes: For those who fail to distinguish negative from positive liberty . . . all kinds o f despotism - from compulsory education, public health, and moral policing - turn out to be identical with freedom. But the link between liberty and discipline was not the outcome o f philosophical confusion. Both then and now, philosophical reflections on freedom were linked to the invention o f certain ways o f trying to govern persons i n accordance with freedom. 390  Canadian moral reformers did not view their position on racetrack betting as incompatible with liberal political rule. They believed that a coercive strategy o f governing by law served a utilitarian purpose because it created in Macdonald's words, a "cleaner democracy".  391  Opponents o f moral reform such as E . B . Osier believed i n  ethical self-formation through non-coercive techniques: I say they are making much o f little and that they are trying to have suppressed b y Act of Parliament that which can only be suppressed by the moral teaching o f the ministers o f this country and the mothers and fathers o f the c h i l d r e n . 392  Thus the philosophical divide between opponents o f the M i l l e r B i l l and moral reformers was over techniques o f governing morals. Classic liberal thought struggled with this conundrum concerning the authority o f society over the individual in regulating morality, and as such made spatial distinctions. John Stuart M i l l wrote: ... a new element o f complication is . . . the existence o f classes o f persons with an interest opposed to what is considered as the public weal, and whose mode o f living is grounded on the counteraction o f it. Ought this to be interfered with, or not? Fornication, for example, must be tolerated, and so must gambling; but should a person be free to be a pimp, or to keep a gambling house? The case is  Rose, "Governing Liberty," supra, at 155. Recall third quotation preceding chapter three, supra. Canada, Debates, 1909-1910, at 891-892.  104  one o f those which lie on the exact boundary line between two principles, and it is not at once apparent to which o f the two it properly belongs. Thus (it may be said), though the statutes respecting unlawful games are utterly indefensible - though all persons should be free to gamble in their own or each other's houses, or in any place o f meeting established by their own subscriptions and open only to the members and their visitors - yet public gaming houses should not be permitted. It is true that the prohibition is never effectual, and that, whatever amount o f tyrannical power may be given to the police, gambling houses can always be maintained under other pretenses; but they may be compelled to conduct their operations with a certain degree o f secrecy and mystery, so that nobody knows anything about them but those who seek them; and more than this society ought not to aim at. . . . I w i l l not venture to decide whether [these arguments] are sufficient to justify the moral anomaly o f punishing the accessory when the principal is (and must be) allowed to go free; o f fining or imprisoning the procurer, but not the fornicator - the gambling-house keeper, but not the gambler. 9 j  Thus, M i l l identified three potential moral geographies with distinct regulatory regimes: the private realm, in which individuals are free from regulation; the purely public realm, which should be governed by law; and the semi-public realm created by prohibition in the public arena. The location o f Chinese gambling dens i n Chinatown constituted a physical geographic separation from mainstream British-Canadian society. The related ideological geography o f a community physically, spiritually and morally apart from the rest o f society spurred scurrilous imagery o f the activities within. The fear that Chinatown might morally contaminate 'whites' through exposure to gambling, opium use, or even sexual slavery justified a coercive governmental programme o f police surveillance and relentless attempts at suppression o f activities constructed as 'Chinese crimes.' This legal geography influenced the physical geography o f Chinese gambling dens, as they relocated from public storefronts to backrooms outfitted with elaborate  John Stuart Mill, On Liberty, (edited by Currin V. Shields, New York: Bobbs-Merrill Company Inc., 1956), at 120-122.  105  escape means within catacombs o f hallways. In short, Chinese gambling dens came to occupy the semi-public realm. Hence the enduring perception o f the Chinese gambling venue as an underground operation with an accompanying stigma o f criminality. The physical geography o f the racetrack gave rise to two features o f the debate: as an open public space, moral reformers viewed it as a prime corrupting influence on the morals o f society. The ideological geography o f the racetrack as a venue steeped in British tradition and patronized by society's elite influenced the legal geography, as judges refused to characterize racetrack betting as analogous to off-track betting houses, and Parliamentarians resisted calls for prohibition. In addition, the physical geography o f the racetrack facilitated the imposition o f a regulatory licensing regime: betters in an enclosed ring were easily supervised. A s a result, racetracks fell on the other side o f M i l l ' s boundary as public places in which commercialized betting could occur with legal sanction.  *  *  *  These case studies illustrate the important role that law can play i n the power dynamics o f moral spatialization. Chinese games held a cultural importance for the players no less worthy than the importance o f the racetrack to white Canadians. However, in the view o f lawmakers, the racetrack was frequented by the "ordinary British citizen" while the Chinese gambling den housed "inveterate gamblers." The interwoven discourses o f morality and race produced legal distinctions resulting i n a social geography o f gambling that endures in contemporary times. I conclude with the observation that in some instances, law's geographic application is inconsistent. It reflects pre-existing power relations, it may reflect racial  106  biases, and in doing so, it makes moral distinctions that impact how we regard different places. Recognizing the spatial contingency aspect o f law is an important factor in understanding its powerful constitutive role in defining places and the people that frequent them. These points are well put in Reverend Shearer's prediction that the 1910 amendment to Canada's gambling legislation would have the following effect: It would result in a man being held to be a criminal for instance in one place and a decent citizen, a good citizen, a gentleman i f you like, in another place; or in his being a criminal at one time and a decent citizen or a gentleman at another time; he is a criminal outside the enclosure, he is a gentleman inside the enclosure while doing exactly the same thing and comporting himself in exactly the same w a y . 394  Shearer's comments encapsulate the effect o f law on the power-space nexus: prevailing conceptions o f place historically shaped the law and its enforcement, with the ultimate consequence o f creating distinct legal and moral geographies that fostered enduring social attitudes about the places where people gamble.  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