legal
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 Posted: Thu Nov 11, 2004 1:11 pm Post subject: ROB TV panel: Canadian gaming law like 'reading tea leaves' |
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Michael Vaughan LIVE on ROB TV online
Interpreting Canadian gaming law like 'reading tea leaves:' legal expert
(See also CryptoLogic and Pasquantino , FEAR and the long reach of U.S. wire fraud).
As if in answer to our questions about Canada's role in all this, Michael Vaughan of ROB TV hosted a half-hour panel discussion on his program, Tech Tuesday, Oct. 12/04 at 6:30 p.m. ET on the legality of Internet gamibling here in Canada and abroad, providing some lively discussion from a distinguished panel, featuring PokerPulse.com founder Dennis Boyko, CryptoLogic CEO Lewis Rose (see especially Dennis's comments and questions recorded in the minutes of CryptoLogic's April 6, 2000 1st Quarter Conference Call online here), Desjardins Securities software analyst David Shore and one of Canada's leading legal experts in e-commerce, C. Ian Kyer, director of the IT law group at Fasken Martineau DuMoulin's Toronto, Ont. office. (Note: We found two very good articles by Mr. Kyer online: Is Internet Gaming Legal in Canada? A Look at Starnet with Danielle Hough, and the equally compelling Jurisdiction in Cyberspace).
Mr. Kyer called the recent British initiative toward a regulatory scheme for the industry "a major coup for online gaming" and likely to be influential because of Britain's immense stature in international trade and as a leading common law country.
He compared the World Trade Organization's ruling against the U.S. in favor of Antigua to the story of David and Goliath (see more on this WTO decision at Free Jay Cohen!) and criticized the U.S. Justice Dept.'s strategy to create a chill effect on the industry by threatening prosecution of online gaming sites in the absence of any clear indication that e-gaming is, in fact, illegal in that country. (See Advertising Liability in the Online Gambling Industry by U.S. attorney Lawrence G. Walters online here).
At one point in the discussion, Mr. Kyer revealed that he advised the Canadian federal government to legalize, regulate and tax online gambling not long ago when when it was seeking ways to promote that country's e-commerce.
Mr. Kyer did not address the question we put to CryptoLogic earlier regarding a risk that the U.S. Justice Dept might use American criminal aiding and abetting provisions and/or the Patriot Act to shut down Canadian interests in offshore e-gambling operations, but he did echo Mr. Rose's assertion that CryptoLogic is indeed providing lawful services to online gambling sites operating lawfully at their respective locations.
All the panelists appeared to agree with Mr. Shore that it's not technically feasible to ban the Internet gambling industry in Canada and that regulation after consultation with various interest groups is quite likely. Canadian gaming law under the Criminal Code, said Mr. Kyer, has not been updated for more than a century. The relevant question here is, what is a Canadian gaming house with respect to the largely intractable worldwide Internet? The difficulty in making such a determination under the current definition is further complicated by the vast number of government-sponsored lotteries and sports betting programs. It's an exercise, he said, "like reading tea leaves."
Further Reading:
This is not for a moment to suggest that Canada does not have its own considerable and controversial share of anti-terrorist, anti-money-laundering statutes enacted in the wake of 9/11. For a brief summary of Canadian initiatives, including the quite recent Public Safety Act, 2002 (see below) and the Anti-Terrorism Act (updated at Canada's Justice Dept. website Dec. 14/04 and again Jan. 11/05), click on Canadian Intelligence Resource Centre (CIRC), released May 6/04.
See also the excellent three-part series on Canadian terrorism initiatives by senior reporter Andrew Duffy of the Ottawa Citizen. Here is an excerpt from Untangling RCMP spying web won't be easy:
| Quote: | The RCMP Security Service was formally disbanded in 1984 and its responsibilities for intelligence gathering were handed to the newly created civilian spy agency, CSIS.
But contrary to popular belief, the advent of CSIS did not spell an end to the RCMP's involvement in national security -- or to its intelligence gathering activities.
In 1984, the RCMP was designated in law as the police force primarily responsible for the investigation of national security-related crimes, which naturally brought it into terrorism cases such as the bombing of Air India Flight 182.
This responsibility quietly became something larger when, during the late 1980s, the RCMP embraced the notion of intelligence-led policing. It's an approach that requires police officers to collect and analyze information about potential targets before deciding how to deploy their resources to prevent crime.
The shock wrought by the 1990 Oka Crisis -- when a Quebec land claim dispute resulted in a violent, summer-long stand-off between natives and police -- confirmed in the minds of RCMP executives the need to collect better intelligence. Intelligence-led policing became the force-wide approach to crime prevention.
That philosophy, however, when applied to national security, put the RCMP back into the game of security intelligence gathering, according to a research paper prepared for the Arar Inquiry. (From The Vancouver Sun, Dec. 14/04, p. A13) |
We're also impressed with Privacy and the USA Patriot Act, Implications for British Columbia Public Sector Outsourcing, a report completed in October, 2004 by the B.C. Government and Service Employees' Union, augmented now by a public right to privacy campaign, in response to provincial initiatives to outsource certain government functions to U.S. companies or their Canadian subsidiaries.
While some of the report's conclusions appear politically naive to us, we were pleased to find recommendations that would at least provide greater certainty with respect to conflict of laws between borders. For example:
| Quote: | Recommendation 2
The government of British Columbia should create a published litigation policy under which it would, as necessary, participate in or commence legal proceedings in Canada or abroad to resist a subpoena, warrant, order, demand or request made by a foreign court or other foreign authority for disclosure of personal information in British Columbia that is in the custody or under the control of a public body...
Recommendation 8
The government of Canada should review British Columbia's Freedom of Information and Protection of Privacy Amendment Act, 2004 (Bill 73) and consider enacting provisions to protect personal information in Canada from disclosure in response to a subpoena, warrant, order, demand or request made by a foreign court or other foreign authority. |
See also these disturbing comments made April 27/04 by Canada's Privacy Commissioner Jennifer Stoddart from which the following are excerpted:
| Quote: | We were strongly opposed to recent amendments to the Public Safety Act, Bill C-7, because the legislation remains far too broad and because it sets out a general, rather than specific, regime for co-opting private sector organizations by pressing them into service in support of law enforcement activities.
We are not alone. Many individuals and organizations and many Parliamentarians have expressed serious concerns about the implications of Bill C-7 for privacy and human rights.
Bill C-7, along with much of the anti-terrorism legislation that has been passed here and abroad, is based on the premise that the more information the state has about everyone, regardless of whether they have done anything to incur suspicion, the safer we will be.
That is an assumption that needs careful examination and it is a question that is outside my area of expertise. However, I am prepared to suggest that it is not clear how reducing the freedoms of all individuals in society will prevent further threats to public safety by terrorists on a political mission.
As law enforcement and national security organizations collect more information about more individuals and use that information, there is an increasing possibility that people will be subjected to unnecessary scrutiny, that more people will be singled out, and that more people will be treated unfairly. |
Any questions or comments? Send them to our team at legal@pokerpulse.com.
Last edited by legal on Mon Jan 31, 2005 4:25 pm; edited 14 times in total |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Thu Nov 11, 2004 1:13 pm Post subject: |
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Our e-mail to Ian Kyer:
| Quote: | From: legal@pokerpulse.com
To: ikyer@tor.fasken.com
Cc: legal@pokerpulse.com
Sent: Wednesday, October 13, 2004 4:37 PM
Subject: What about the effect of U.S. aiding and abetting provisions and/or the Patriot Act to shut down Cdn online gaming interests?
Hello Mr. Kyer,
We were relieved to hear your "reading tea leaves" comments yesterday on ROB TV's Michael Vaughan program in view of our own troubles trying to determine what is legal or not in Canada and wish you could have spoken longer. We've been examining the U.S. position with respect to the Cisneros complaint and Casino City's First Amendment challenge. We're wondering if you could speculate or maybe recommend some readings for our visitors on the legal position of a Canadian company with interests in lawful offshore Internet gambling sites if the U.S. decided to use American aiding and abetting provisions and/or the Patriot Act to seize the company's assets? What effect, if any, would such action have on NAFTA, we wonder?
Legal@pokerpulse.com
PokerPulse.com
Tracking Internet poker worldwide. |
Note: See Pasquantino v. United States, a brief filed in the U.S. Supreme Court by the U.S. Justice Dept. in August, 2004 on whether the wire fraud statute, 18 U.S.C. 1343, prohibits the use of interstate wires in the U.S. to execute a scheme to defraud a foreign government of tax revenue, in this case, Canada. See expanded material here.
Computer Law Companion
Paperback
By C. Ian Kyer
See also Publications list here.
Last edited by legal on Thu Sep 15, 2005 11:35 am; edited 4 times in total |
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legal
Site Admin
Joined: 18 Aug 2004
Posts: 510
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| Posted: Thu Nov 11, 2004 1:16 pm Post subject: |
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Our e-mail to Michael Vaughan of ROB TV:
| Quote: | From: legal@pokerpulse.com
To: vaughanlive@robtv.com
Cc: legal@pokerpulse.com
Sent: Thursday, October 14, 2004 9:42 AM
Subject: Aiding and abetting and the Patriot Act - US effect on Cdn interests in lawful offshore Internet gaming sites
Hello Michael Vaughan,
Thanks so much for hosting such an interesting panel on the legality of Internet gaming Tuesday. We were particularly impressed with lawyer Ian Kyer, who said he actually advised the Cdn gov't to legalize Internet gambling in an effort to promote e-commerce here not long ago. We are trying at the moment to get more analysis on the effect, if any, of U.S. law on Cdn interests in lawful Internet gaming sites. This is really the $64 million question and tough to answer, but we've got Mr. Kyer on it.
In the meantime, our visitors would be very interested in seeing the show online. Is there any chance you might keep it running for more than a week? We'd be pleased to kick to it on our legal homepage or run a short clip with a URL to the full clip - anything you could give us. There really is not enough discussion about the law of Internet gambling and this is creating a great deal of uncertainty in the industry, in our view. You've gone some distance in closing that gap with your show.
Regards,
Legal@pokerpulse.com
Tracking Internet poker worldwide. |
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