Criminal Code, R.S.C. 1985, c. C-46 (the Code ) Competition Act, R.S.C. 1985, c. C-34

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5 The power to legislate with respect to criminal law (except the constitution of the courts) is reserved to the federal government: 91(27) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. Establishment & maintenance of charities ( 92(7)), licensing taverns, etc. for local purposes ( 92(9)), and property and civil rights in the provinces ( 92(13)) are reserved to the provinces under the Constitution Act, Criminal Code, R.S.C. 1985, c. C-46 (the Code ) Competition Act, R.S.C. 1985, c. C-34 For example, under the Code, one is prohibited from: keeping or being found in a common gaming house or a common betting house ( 201); registering or recording bets or pool-selling ( 202(1)); placing a bet on behalf of another person for payment ( 203(a)); or, conducting a lottery scheme ( 206(1)(d)). Further reading: S. Hoegner, The Canadian Gaming Market Casino Enterprise Management (August 2010) 38, online: 5

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7 207(1)(a) of the Code provides that, notwithstanding any of the provisions under Part VII relating to gaming and betting, it is lawful for the government of a province to conduct and manage a lottery scheme in that province. 207(4)(c) excludes games and other operations described in 206(1)(a)-(g) operated on or through a computer, video device or slot machine from the definition of permitted lottery scheme in 206(1)(b)-(f). That is, the only remaining authorized provider of such schemes operated on or through a computer is the government of a province. 35(1) of the Constitution Act, 1982, provides as follows: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, C

8 Further reading: P. Rodrigue, The Future of Internet Gaming: Canada Gambling Compliance (October 2010), online: 8

9 Further reading: M. Marshall, Kahnawake in M. Balestra & T. Cabot, eds., Internet Gambling Report, 5 th ed. (St. Charles: River City Group, 2002) 321, online: 9

10 Regulations Concerning Interactive Gaming: 10

11 R. v. Sparrow, [1990] 1 S.C.R Sparrow three-part test: 1. Characterization of the right claimed rejection of frozen rights approach rights can evolve into current and modern forms. 2. Infringement Has the aboriginal right been infringed? a) Is the limitation unreasonable? b) Does the regulation impose undue hardship? c) Does the regulation deny the holders of the right their preferred means of exercising that right? 3. Justification Is there a valid legislative purpose? If yes, does the restriction comport with the honour and fiduciary duties of the Crown in dealing with aboriginal peoples? [cont d] 11

12 R. v. Van der Peet, [1996] 2 S.C.R R. v. N.T.C. Smokehouse kh Ltd., [1996] 2 S.C.R R. v. Gladstone, [1996] 2 S.C.R Major elements of the Van der Peet trilogy: 1. Any ambiguity as to the scope and definition of 35(1) must be resolved in favour of indigenous peoples. 2. To constitute an aboriginal right protected by 35(1), an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the idi indigenous group claiming li i the right. ih 3. To be integral, a practice, custom, or tradition must be of central significance to the indigenous society, i.e., it must be one of the things that make the society truly distinctive. 4. The practices, customs, and traditions that constitute aboriginal rights are those practices, customs, and traditions that existed prior to European contact. R. v. Pamajewon, [1996] 2 S.C.R Pamajewon is the only case in which the Supreme Court of Canada has applied the Van der Peet test to the specific issue of indigenous gaming and its regulation. The claim for an aboriginal right in Pamajewon failed because the evidence [did] not demonstrate that gambling, or that the regulation of gambling, was an integral part of the distinctive cultures of the Shawanaga or Eagle Lake First Nations. Just because these First Nations could not demonstrate gaming or its regulation to be an integral part of their distinctive culture does not mean that no First Nation can so demonstrate. Cases are fact- and First Nation-specific. 12

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