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Constitutional challenge heard in Ontario

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The Mohawk Council of Kahnawake (MCK) is awaiting a decision from the Ontario Superior Court now that hearings between them and Ontario’s online gaming regulator wrapped up Wednesday in Toronto.

The MCK is hoping to overturn legislation in the province surrounding its online gaming regulator, claiming Ontario is allowing online gaming and single-event sports betting to operate in a way that contradicts Canada’s Criminal Code. Council maintains the regulatory scheme also undermines Kahnawake’s inherent right to jurisdiction over its online gaming industry, which has been under the purview of the Kahnawake Gaming Commission (KGC) for over 25 years now.

The hearings began on Tuesday, with justice Lisa Brownstone hearing arguments from Nicholas Kennedy, the lawyer representing the MCK. Lawyers for Ontario’s Attorney General and its online gaming regulator, iGaming Ontario, also came to present their arguments to the court on Wednesday.

“The majority of the legal arguments are around Ontario’s interpretation of the words ‘conduct and manage,’” said MCK chief Tonya Perron, who attended and is also a lawyer by trade. 

Eric Doucet, in-house counsel for the MCK, also attended. He said the main thing the MCK takes issue with is Ontario’s claim it’s conducting and managing gaming in accordance with the Criminal Code. 

Since 2021, online gaming and sports betting businesses that want to access players in Ontario have had to register with iGaming Ontario and enter into operator agreements with it to be considered legitimate. As far as the MCK is concerned, this doesn’t meet the threshold of “conducting and managing” at all, Doucet said.

“It’s the actual private companies that are doing the conducting and managing of gaming. They own the websites, they call the business decisions, they do the marketing, they do everything. It should be Ontario that is doing this directly, and that’s not what’s happening.”

Scott Hutchison, the lawyer that spoke for iGaming Ontario, argued that since the province is engaging in high-level oversight of gaming and sports betting, it is in fact meeting the threshold laid out in the Criminal Code.

“The conductor of an orchestra never touches an instrument,” Hutchison told the judge, according to Covers, a news website that reports on sports betting. “But the conductor is, at the end of the day, responsible for the symphony.”

Conducting and managing gaming also “involves a more sophisticated, directive role, as opposed to having your actual hands on the cards, and dealing them out at the table,” the lawyer was also quoted saying.

The Kahnawake Gaming Commission has refused to register with the regulator since its creation, arguing it maintains jurisdiction to operate gaming without being subordinate to an outside government. 

It would also have to pay taxes to the province in the instance it did register. MCK-owned Mohawk Online has been cut off from accessing players in Ontario since then. It operates online sports betting, casino, and poker games internationally – a major source of revenue for Kahnawake. 

“We’re obviously at a disadvantage here because this is an iGaming scheme that was put in place by the Ontario government. There’s lots of jobs at stake, there’s lots of money at stake. It will take a lot of guts for somebody to overturn an entire regime,” Doucet added. “I don’t think we should be under any illusions that this will absolutely go our way.”  

This past October to December saw $17.2 billion wagered through private sports betting, casino, and poker sites permitted to operate through the scheme, according to iGaming Ontario’s figures for the quarter.

Should the judge rule against their favour it could have major ramifications for Kahnawake’s online gaming industry moving forward, Doucet said. If Ontario iGaming’s way of managing gaming is permitted to continue, other provinces in Canada are likely to follow suit, Doucet also said. That would then place Kahnawake in a position to defend its jurisdiction over gaming against not only Ontario but possibly other provinces, too. 

As for when Brownstone’s decision could come, Doucet said it’s still up in the air.

“I’m not expecting it before six months,” he said.

miriam@easterndoor.com

This article was originally published in print on February 23 in issue 33.08 of The Eastern Door.

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Miriam Lafontaine is a reporter with the Eastern Door. Her work has appeared in Le Devoir, CBC Montreal, CBC New Brunswick as well as the Toronto Star.

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Miriam Lafontaine is a reporter with the Eastern Door. Her work has appeared in Le Devoir, CBC Montreal, CBC New Brunswick as well as the Toronto Star.