Are home poker games legal?
I'm thinking of setting up a few NL hold'em tournments, I wanna know if I going to catch any slack for possibly advertise this event. Keep in mind there will be no type of profit made and all money will be paid back to the winners. Whats the law on these kinds of things? thanks in advance
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Poker and the Law
By Tom Buglas
You have invited some friends over to your place. The square table with metal folding legs that collected dust in the basement is resurrected for duty. You purchased the accoutrements required: clay chips, new cards, felt for the old table, and a green
dealer’s visor. You stocked the bar fridge. You are ready – haberdashery and hair grooming be damned! – to host the Saturday night poker game.
Are you breaking the Law? Could some police officer, with nothing better to do, kick down your door and apprehend all? Will you lose your job, your liberty, and worst of all, your right to travel to Las Vegas? Good questions, these; questions that deserve an answer.
The answer
The good news is that a friendly game of poker is not against Canadian Law. The Criminal Code prohibits keeping a betting or gaming house. The Code specifically exempts from these prohibitions certain betting activities that include friendly games of poker. Parliament realizes that in a friendly game of poker, there is no “house.†No one participant is in the business of providing the game. Even if the players chip in to cover true beer and pretzel expenses this does not transform the host into a “house.†A friendly game of poker therefore does not offend the Criminal Code. By playing, you are not breaking the law.
The legal back-story
In this article “Law†means the Criminal Code of Canada. So, for example, I will not deal with municipal bylaw injunctions against parking, noise, animal husbandry, and such that may apply depending on your game. For all I know, your little berg has an ancient little known and never-used bylaw prohibiting certain forms of gambling. I have never heard of such by-laws and certainly never heard of such a bylaw being enforced, but I must confess to not having read every bylaw in every municipal district in Canada. As municipalities cannot legislate in the criminal field, any such possible bylaws would have to be connected to some other concern such as land use.
As Criminal law is a federal jurisdiction matter we may skip past Municipal and Provincial legislation. We may safely do so due to the British North America Act (BNA). This Pre-Confederation Act divides up areas of legislative competency between the Federal authority (Ottawa) and Provincial and Territorial and possibly Native Authorities. Should one legislative authority (federal or provincial) attempt to legislate in the other’s area, courts will likely strike the law down as being ultra vires as against the BNA. In other words, there are some things the feds can do and different things the provinces can do. Unless they agree, they are to stay out of each other’s areas.
The BNA directs that only the feds are allowed to legislate in the area of Criminal law. The provinces were not given this power. Since the provinces delegate some of their powers to local municipalities, and since the provinces cannot delegate a power they do not possess, municipalities likewise are not allowed to legislate in the area of Criminal law. In a celebrated Alberta case, Calgary attempted to prohibit and otherwise regulate street prostitution. The Supreme Court of Canada ultimately struck down the bylaw as unconstitutional (contrary to the division of powers set out in the BNA) as the municipal bylaw was an improper attempt by Calgary to pass Criminal legislation. For the same reason, take comfort that any municipal bylaw prohibiting a friendly poker games is very possibly unconstitutional.
The Criminal Code, which is within federal authority, directs that one may not be a keeper of a betting or gaming house unless one has the permission of one’s province. The feds allow the provinces to decide which, if any, gambling houses they will license. One province may decide to issue no licences whatsoever and effectively ban organized gambling altogether. Another may decide to hand out gambling licences at fifty bucks a pop, with no regulation. Each province has its own Gaming Authority which makes licensing decisions and enforces the licensing terms. The interesting result in this area of activity is that the feds are the ultimate enforcers of the provincial licencing schemes. Bottom line: if you run a betting or gaming house as defined in the Criminal Code, you must hold a provincial licence to be exempt from the provisions of the Criminal Code.
Since none of us have provincial licences in our back pockets, how else may we get around the prohibition against being a “house?†Section 204(b) of the Criminal Code helpfully states that these prohibitions do not apply to “private bet between individuals not engaged in any way in the business of betting.†Are you making it a business to host the game? Are you charging attendance or hourly fees to provide the game? Are you in some manner accepting compensation to ensure that the game is fair? If so, then you may be a “house†and absent a provincial license, which we both know you do not have, you could be subject to arrest. The trick is to keep your friendly game… friendly. Don’t charge to attend or rake the pot. Just play poker and accept your wins and losses. Although there is no direct prohibition against large stakes games, the reality is that the more money that flies around the more cynical a prosecuting authority may be about the contention that no one is making a business of betting.
I hope nothing written here scares you. Most of us deal with this issue all the time in relation to alcohol and tobacco. Although one must be licenced to be a distributor of these products, it is completely legal to invite people to your home to drink your beer and smoke your cigars. You just cannot make a business out of providing drinks and smokes. We all know the difference between an after-hours “speak easy†in someone’s basement and a casual get together where the invitees are allowed to help themselves to beer. With poker, it’s the same idea. Forgive me for sounding unctuous, but if you cannot tell the difference between a casual game of poker amongst friends and a professional game, then you are well advised not to take a seat. There is an old saying that applies: if the fellas sitting around the table are named after cities or states, do not sit down. Despite the smiles, the game is probably not “friendly.â€
So break out the metal-legged table, invite some buddies over, and play some poker. Your buddies are allowed to help pay for the pretzels but not for the privilege of attending. Most importantly, don’t take chits unless you trust the guy because as any jailhouse lawyer will tell you, gambling debts are not enforceable.
Disclaimer: This article is for informational purposes only. If you have any particular legal issue or concern, please contact a lawyer in your jurisdiction to obtain a particularized opinion.
Tom Buglas is a Calgary lawyer with a special interest in the areas of gambling and internet law. If you have any questions regarding poker and the law of general interest, contact Tom at tbuglas@ezehosting.com and you may find your question answered in a future article.
Edit: I can't wait for the next issue with a preview of the CPT!!!!!