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Intervention - Evidence Record. Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2024) the Ontario Court of Appeal considered an unusual 'reference' [CJA s.8] case, here where the Ontario Crown wished legal issues resolved regarding Criminal Code-authorized gaming.
Here the court considered 'proposed evidence' of authorized reference intervenors:[1] By Order in Council 210/2024, the Lieutenant Governor in Council referred the following question to this court, pursuant to s. 8 of the Courts of Justice Act, R.S.O. 1990, c. C.43:Would legal online gaming and sports betting remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the attached Schedule? If not, to what extent? ....
[7] The proposed evidence consists of five affidavits: three from the Canadian Lottery Coalition Members, and two from British Columbia (one of which appends an expert report). British Columbia and the Canadian Lottery Coalition Members argue that their proposed evidence is relevant to correct factual misimpressions left by Ontario’s evidence. These misimpressions include that the proposed scheme would in fact bar players located outside of Ontario but within Canada from betting against players located in Ontario, and that the proposed scheme is analogous to or permissible under the regulatory schemes in various other jurisdictions.
[8] Ontario, Flutter, the CGA and NSUS oppose the admission of this evidence. There were two thrusts to the opposition. First, that the proposed evidence is irrelevant to the reference question. Second, that its admission at this stage may lead to delay and complexity in the reference proceeding. NSUS also argues that British Columbia’s expert report has not been properly tendered as expert evidence and that the author is not qualified to provide the opinions offered in his report. In the alternative, Flutter, NSUS and the CGA seek the right to cross-examine the affiants of the interveners seeking to adduce evidence, and leave to adduce responding affidavits.
[9] It is not my role as a single judge case managing the reference to determine questions of admissibility and relevance. This is for the panel to decide. The issue at this stage is whether the proposed evidence “may assist the court in determining” the reference question: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at paras. 17-18; see also Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349, at para. 21.
[10] There are a number of relevant considerations.
[11] First, the “general rule” that interveners are typically not permitted to supplement the record does not apply in this case, where the parties seeking to file evidence are the effective opposition to Ontario and where there is no pre-existing record from a court below. It is appropriate for the moving parties to participate in the creation of the record in which the reference question will be determined: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 9. The reference question is framed by the Lieutenant Governor in Council, but s. 8(6) of the Courts of Justice Act (which provides for the court’s appointment of counsel if an affected interest is not represented) recognizes that Ontario is not entitled to proceed unchallenged. In a case where Ontario has filed an extensive record, meaningful opposition must include an opportunity to challenge the factual assertions in that record.
[12] Second, it is important that the court have an adequate factual context for the determination of the reference. It is well-established that in a constitutional reference, an intervener may be permitted to file material (subject to the court’s determination as to its relevance and weight), because constitutional challenges should not be determined in a factual vacuum: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 17. However, the parties disagree about whether this is a “constitutional reference”. Ontario says it is not and that the reference question is purely one of statutory interpretation. British Columbia and the Canadian Lottery Coalition Members say that this is a constitutional reference because the court is asked to assess whether a provincial scheme would comport with federal legislation, and because some of the interveners have raised constitutional issues. I also note that Ontario’s own Statement of Particulars makes an argument based on language in the Constitution Act, 1867. Regardless of whether this is a “constitutional reference”, it is clear to me that the factual context may assist the court in answering the reference question. The reference question and incorporated Schedule explain Ontario’s proposed changes to the iGaming scheme in part by reference to the current scheme. The reference question asks whether the current scheme would “remain lawful” under the Criminal Code if it were changed in specific ways, and if not, “to what extent?”. Answering the reference question presupposes an understanding of how the current scheme operates.
[13] Third, I do not accept Ontario’s argument that the record must be limited to what it has put before the court on the reference. There are no stipulated agreed or assumed facts. Nor is there draft legislation. Rather, Ontario has filed affidavit evidence speaking to the operation of the current iGaming scheme and to the operation of the proposed scheme. Any party is free to argue at the hearing of the reference that the court’s determination of the reference must be based on facts put forward by Ontario only, or, as Ontario has argued here, that the reference involves a narrow question of statutory interpretation with a limited role for evidence. At this stage, however, it would be inappropriate to “limit the scope of the legal arguments by artificially curtailing the factual record”: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 8.
[14] Fourth, I accept that it would not be appropriate for evidence to be put forward for the purpose of raising new and unrelated issues that have the effect of broadening the scope of the reference. Here, I am satisfied that the purpose of putting forward the proposed evidence is not to raise new issues, but to respond directly to Ontario’s own evidence about the operation of the scheme and the future operation of the proposed scheme, and to support British Columbia and the Canadian Lottery Coalition Members in their opposition to Ontario in the reference. This evidence may be of assistance to the court in determining the reference question. Again, this does not preclude any party from making arguments about the admissibility and relevance of the evidence or any part of the evidence at the hearing of the reference.
[15] Fifth, it is premature at this stage to make any determination about the admissibility and appropriate scope of expert evidence. As with all of the other proposed evidence, the admissibility of all or any part of the expert report submitted by British Columbia and the permitted scope of the author’s expertise, if any, is for the panel to determine.
[16] Sixth, the fact that some of the proposed evidence refers to alleged illegal or unregulated activities is not a reason to exclude it from the record. Arguably Ontario itself has opened the door to such evidence by adducing evidence about the existence of unlawful online gaming sites as part of the context in which the current scheme operates, and the avoidance of harms of unlawful or unregulated online gaming as a rationale for the proposed scheme. As for the portions of the proposed evidence that identify specific operators by name, this reference is not about, and cannot result in, a determination of liability against any specific operator. This reference is about the legality of a hypothetical new scheme which does not currently exist. The reference question and incorporated Schedule explain that new scheme in part by reference to the existing scheme. Understanding the operation of the current scheme – including how it in fact affects persons in provinces outside of Ontario – will assist the panel in understanding the proposed scheme and advising whether it will “remain lawful under the Criminal Code”, and if not, “to what extent”.
[17] I turn to the assertion that the inclusion of the proposed evidence in the record will lead to delay and complexity, as the opposing parties may want to file responding evidence, and to cross-examine to refute assertions in the proposed evidence, and that persons whose interests are not already represented may seek to participate in the reference to protect their reputations and business interests. I am confident that these and any other procedural concerns that arise from the inclusion of the proposed evidence in the record can be addressed in the reference process that I am case managing. A date has been fixed for another attendance before me (July 29, 2024). Other attendances can be arranged, if and when required.
[18] For these reasons leave is granted to British Columbia and the Canadian Lottery Coalition Members to file on the reference the proposed evidence put forward in their motions.
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