A 2002 decision of the Prince Edward Island Court of Appeal (the “Earth Future Lottery reference case”) prevented a charity licensed by that province from conducting and managing gaming that would have also been available to residents of other provinces and other countries. Since that decision was upheld by the Supreme Court of Canada, many in Canada have felt constrained in their ability to offer goods and services to the international gaming industry.
We can only speculate as to the extent to which such legal concerns prompted SIGA’s reluctance to endorse the MOU. There may well have been business reasons that were equally decisive. We can state definitively that nothing in the Code or the Earth Future Lottery reference case prevents a First Nations gaming operator such as SIGA from providing operational services to foreign casinos.
The Earth Future Lottery reference case was concerned with the exemptions provided by section 207 of the Code. However, those exemptions are not the starting point of the analysis. Before asking whether a gaming-related activity falls within the purview of section 207, one must first ask whether that activity would otherwise amount to an offence recognized by any other provision of Part VII of the Code.
Gaming that takes place in a foreign land-based casino would take place entirely within that foreign country, presumably with the explicit approval of that country’s government. Such activities would likely not have sufficiently substantial connections to Canada to fall within Canadian criminal jurisdiction. There would be no offence committed, and therefore no need for any of the exemptions provided by section 207 of the Code.
As well, if SIGA needed to make or print things in Canada and send them to Taiwan to assist in its operational duties, that activity would likely be permitted by section 207(1)(h) of the Code, which was enacted for the specific purpose of ensuring that gaming products and services be included as a dimension of the Canadian export package.
First Nations will continue carving out a space for themselves in the regulation of gaming in Canada. In the course of those efforts, First Nations people will gain expertise in gaming. Such expertise is a valuable international commodity, which First Nations companies should trade upon, exploring every legal avenue available for that purpose. Besides the obvious economic benefits that would accrue, First Nations entities that establish internationally recognized credentials in the industry can only assist in the movement towards obtaining self-government for First Nations in the area of gaming regulation.
By Michael Lipton and Kevin Weber, Elkind & Lipton LLP