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UBC Theses and Dissertations

The legal status of lottery schemes in Canada : changing the rules of the game Osborne, Judith Anne


The term "lottery scheme" is a generic one used in the Criminal Code of Canada to encompass both true lotteries and other games of chance. Until 1969, the Criminal Code prohibited such gambling activities, with the exception of very small scale, occasional and private lottery schemes run for charitable purposes, and lottery schemes operated at agricultural fairs. This criminal prohibition was a longstanding one which had existed in Canada since before Confederation. Twenty years ago, however, the Criminal Code was amended to permit state-operated and state-licensed lottery schemes. As a consequence of this relaxation of the criminal law, legalized gambling has, since the early 1970s, flourished and become firmly established in Canadian society. In part, this reflects a general international trend; similar developments have taken place in the United States, Australia and Europe. In Canada, however, this development occurred in the absence of widespread public debate, political rationalization or academic analysis. There is not much known about how or why it came about, its legal validity, or what its implications are. This thesis addresses these neglected issues, provides some understanding of how the legal status of lottery schemes was transformed in 1969, why it occurred and what its consequences have been. These aims are achieved through an examination of five distinct but related research dimensions: legal history, political process, legal theory, constitutional law and administrative law. This study finds that what was a fairly radical change in the rules regarding lottery schemes was achieved relatively quickly, with a minimum of fuss and very little in the way of public discussion. It was a silent transformation. This lack of debate is at least partly responsible for the incoherent response on the part of some provinces, which soon took advantage of their ability to conduct and manage lottery schemes, but did not appear to have an articulate gaming control policy. It is shown that while there were well-established, philosophically sound reasons for the removal of criminal sanctions from certain gambling games, there were also political, social and economic reasons which were equally if not more important in explaining its occurrence. These justifications even overrode the legal constraints of Canada's constitutional framework: the decriminalization of lottery schemes was achieved through a dubious interdelegation of powers between the federal and provincial legislatures. Not only is this arrangement constitutionally unsound, but it also ignored the interests of an important segment of Canada's population: its aboriginal peoples. The right to conduct and control gaming on Indian lands is the focus of a tri-partite jurisdictional struggle which will likely soon force a re-examination of the legal status lottery schemes in Canada.

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