|
Vice - Gambling. Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a 'reference' [under CJA 8 'References to Court of Appeal'] regarding whether "legal online gaming and sports betting [would] remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada".
Here the court considers several intervenor organizations interested in internet gaming in Ontario:2. The Gaming Association
[43] The Gaming Association is a national trade association whose members include a number of current iGO Operators.
....
3. Flutter
[47] Flutter is a multinational sports betting and gambling company. Some of its subsidiaries are current iGO Operators. ....
....
B. Opponents of the Proposed Model
1. The Lottery Coalition
[57] The Canadian Lottery Coalition is a consortium that includes the provincial and regional crown corporations in the Atlantic Provinces, Manitoba, Québec, Saskatchewan, and British Columbia, each of whom has the sole authority, or acts as agent to the provincial lottery corporation with such authority, to conduct and manage online gambling within their respective provincial boundaries or, in the case of the Atlantic Provinces, within their shared regional boundaries. Four of the Canadian Lottery Coalition’s members – the Atlantic Lottery Corporation, the British Columbia Lottery Corporation, Lotteries and Gaming Saskatchewan, and the Manitoba Liquor and Lotteries Corporation, who we refer to collectively as the “Lottery Coalition” – were granted intervener status, and made joint submissions. The Société des loteries du Québec, also known as Loto-Québec, and the Saskatchewan Indian Gaming Authority are also members of the Canadian Lottery Coalition, but did not participate in the reference.
....
2. Mohawk Council
[70] The Mohawk Council is the governing body for the Kanien:kehá’ka (Mohawks) of Kahnawà:ke within the Mohawk Territory of Kahnawà:ke, which is located in Québec. In 1996, the Mohawk Council enacted the Kahnawà:ke Gaming Law, through which it regulates, facilitates, and conducts land-based and online gaming through an assertion of its rights under s. 35(1) of the Constitution Act, 1982. . Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a 'reference' [under CJA 8 'References to Court of Appeal'] regarding whether "legal online gaming and sports betting [would] remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada".
Here the court summarizes the law of the "current internet gaming model in Ontario":A. The current internet gaming model in Ontario
[8] At present, internet gaming in Ontario is governed by the federal Criminal Code, and three provincial statutes: the Alcohol and Gaming Commission of Ontario Act, 2019, S.O. 2019, c. 15, Sched. 1; the Gaming Control Act, 1992, S.O. 1992, c. 24, and its regulations; and the iGaming Ontario Act, 2024, S.O. 2024, c. 20, Sched. 9.
1. Section 207 of the Criminal Code
[9] Subsection 207(1)(a) of the Criminal Code provides that notwithstanding any of the provisions of Part VII relating to gaming and betting, it is lawful:(a) for the government of a province, either alone or in conjunction with the government of another province, to conduct and manage a lottery scheme in that province, or in that and the other province, in accordance with any law enacted by the legislature of that province[.] [10] Subsections 207(1)(b)-(f) create additional exceptions to the prohibitions on gaming found in Part VII. One of these exceptions, s. 207(1)(b), makes it lawful:(b) for a charitable or religious organization, pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, to conduct and manage a lottery scheme in that province if the proceeds from the lottery scheme are used for a charitable or religious object or purpose[.] [11] The term “lottery scheme” in s. 207 is defined by s. 207(4) to mean:[A] game or any proposal, scheme, plan, means, device, contrivance or operation described in any of paragraphs 206(1)(a) to (g), whether or not it involves betting, pool selling or a pool system of betting However, various specified activities are excluded from this general definition: (a) “three-card monte, punch board or coin table”; (b) various activities relating to horse racing, which is addressed separately in s. 204; and (c) for the purposes of ss. 207(1)(b) through (f), any of the otherwise included elements of a lottery scheme “operated on or through a computer, video device, slot machine or a dice game.” Notably, the exclusion of computer gambling from the definition of “lottery scheme” in s. 207(4)(c) does not apply to s. 207(1)(a). Accordingly, a provincial government may conduct and manage a computer-based lottery scheme in that province pursuant to provincial legislation.
[12] Subsection 207(3) makes it an offence for anyone to do anything “for the purpose of a lottery scheme” that is not authorized by s. 207. This includes conducting, managing, operating or participating in an unauthorized lottery scheme.
2. Internet gaming currently in Ontario
[13] Under Ontario’s current internet gaming and sports betting scheme (the “iGaming Scheme”), internet gaming is offered to players in Ontario by a number of private gaming companies who have entered into agreements with iGaming Ontario (“iGO”). iGO is an Ontario government corporation and an agent of the Crown in right of Ontario.[4] We will refer to these private gaming companies as the “iGO Operators”. Under these agreements (the “Operating Agreements”), the iGO Operators, acting as iGO’s agents, offer internet games and sports betting to players in Ontario through various websites and mobile applications (the “iGO Sites”).
[14] The Alcohol and Gaming Commission of Ontario is an agent of the Crown in right of Ontario tasked with administering Ontario’s gaming statutes and regulations: Alcohol and Gaming Commission of Ontario Act, 2019, ss. 1.1(1) and 3.1. It regulates all lottery schemes in Ontario, including the current iGaming Scheme operated through iGO. Its regulatory responsibilities include:. conducting eligibility assessments to determine whether applicants are suitable to be registered as iGO Operators or gaming-related suppliers;
. outlining technical standards that are used to test and certify online games available to Ontario players; and
. conducting ongoing regulatory assurance activities including regular audits, testing, and site visits, to assess compliance with the Gaming Control Act, 1992, and the Alcohol and Gaming Commission of Ontario Registrar’s Standards for Internet Gaming. [15] Two of the interveners in this reference, Flutter and NSUS Group Inc., have subsidiaries that currently act as iGO Operators. NSUS Limited, which is wholly owned by NSUS Group Inc. and was granted intervener status alongside its parent company, acts as an iGO Operator. We refer to both corporations collectively as “NSUS”. A third intervener, the Gaming Association, is a national trade association whose members include a number of other current iGO Operators.
[16] The terms of the Operating Agreements between iGO and the iGO Operators are largely standard and non-negotiable. They address matters such as: the games that can be offered on the iGO Sites; requirements that the iGO Operators have anti-money laundering policies and responsible gambling programs; and restrictions on the time, manner, and format of the iGO Operators’ advertising.
[17] The Operating Agreements also require the iGO Operators to take steps to limit access to the iGO Sites to players who are physically located in Ontario. The OIC notes that under the existing framework:Players participating in legal online gaming and sports betting must be located in Ontario and are not entitled to participate in games or betting involving players located outside of Ontario. The AGO refers to this as a “closed” or “restricted” liquidity scheme, because the funds provided by the participating players are limited geographically.
[18] The iGO Operators presently offer a variety of types of games and wagering on the iGO Sites. Some of these games involve players betting against “the house”: that is, against the iGO Operator, acting as iGO’s agent. Examples include casino games like slots, blackjack, roulette, and various forms of sports wagering.
[19] The iGO Operators also offer peer-to-peer games in which players compete against one another directly for a “pot” comprised of each player’s wagers, less a “rake fee” paid to the iGO Operator, again acting as iGO’s agent. The Operating Agreements allow iGO to establish the maximum rake in any peer-to-peer games. The peer-to-peer games currently offered on the iGO Sites include poker and bingo. The iGO Operators also have the option of offering peer-to-peer daily fantasy sports betting.
[20] The games offered on the iGO Sites all fall within the broad definition of “lottery scheme” in s. 207(4) of the Criminal Code. In Mohawk Council of Kahnawà:ke v. iGaming Ontario, 2024 ONSC 2726, the Superior Court found they are lawful under s. 207(1)(a) because the iGO Operators are acting as the agents of a government body, iGO, such that Ontario retains “key decision-making power over the igaming scheme” through the Operating Agreements, and is therefore conducting and managing the scheme: at paras. 101, 107. The reference questions are predicated on this assumption and we accept that assumption for the purpose of these reasons.
[21] Since the games offered on the iGO Sites are authorized by s. 207(1)(a) of the Criminal Code, the iGO Operators who host and run these games, and the players who participate in them, do not commit offences under s. 207(3). . Reference re iGaming Ontario
In Reference re iGaming Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a 'reference' [under CJA 8 'References to Court of Appeal'] regarding whether "legal online gaming and sports betting [would] remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada".
Here the court summarizes it's reference conclusion:[1] The Lieutenant Governor in Council referred the following questions to this court on February 2, 2024, by Order in Council 210/2024 (the “OIC”), 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? [2] For the reasons that follow, a majority of this court answers the first reference question in the affirmative: legal online gaming and sports betting would remain lawful under the Criminal Code, R.S.C. 1985, c. C-46, if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the Schedule that is attached to the OIC (the “Proposed Model”). This makes it unnecessary to address the second reference question.
[3] This reference question turns on the interpretation of s. 207(1)(a) of the Criminal Code, which provides that, notwithstanding any of the provisions of Part VII relating to gaming and betting, it is lawful for “the government of a province” to “conduct and manage a lottery scheme in that province”. The Attorney General of Ontario (the “AGO”) argues that the Proposed Model is lawful under s. 207(1)(a).
....
[6] In our view, the Earth Future decisions do not determine the outcome of this reference. Nor do we accept Ontario’s argument that the real and substantial connection test (the “RSC test”) applies to its determination. Rather, the reference questions must be decided based on a statutory interpretation analysis of s. 207(1)(a). Based on that interpretation, a majority of the court has concluded that online gaming and sports betting would remain lawful under the Proposed Model. At paras 134-183 the court, and after dismissing other legal principles, resorts to statutory interpretation to resolve the reference issues.[184] In our view, a purposive analysis favours the interpretation advanced above, which finds the Proposed Model to be lawful. The advent of the internet has made it very difficult to prevent people in Canada from accessing offshore gaming sites, which are unregulated by Canadian authorities and do not generate revenue that the provincial governments can use to provide public services. Allowing Ontario to regulate players within its borders who wish to play online games against players outside Canada advances public safety by bringing such gaming under protective regulation, thereby reducing such risks as fraud and addiction. As well, it furthers provincial choice by enabling Ontario to address the social and economic impacts of online gaming, while preserving revenue and providing accountability to voters. These consequences favour interpreting “in that province” flexibly because they align with Parliament’s purpose: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, 502 D.L.R. (4th) 59, at para. 76; Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, [2018] 4 F.C.R. 174, at para. 52.
E. Conclusion
[185] Using the Modern Principle to interpret s. 207(1)(a) is consistent with a dynamic interpretation, and thereby enables Parliament to achieve its goals without having to reopen the statute in response to changing circumstances and new technologies: Telus, at paras. 33-36.
[186] We reject a restrictive interpretation of s. 207(1)(a) because such an interpretation would undermine Parliament’s purpose in enacting that provision. As the legislative history demonstrates, Parliament favoured provincial regulation because unregulated gaming that lacks provincial safeguards is harmful to society, increasing the risks of crime, fraud, and addiction: Final Report on Lotteries, at p. 68; Andriopoulos, at paras. 6-8, 11-13. We accept the AGO’s contention that leaving extraterritorial online gaming unregulated in Ontario would foster those harms.
[187] A representative of iGO deposed that such unregulated online games may “expose individuals in Ontario to the risks associated with unlawful gambling, including cheating, fraud, and problem gambling.” That is precisely the situation Parliament intended to prevent by empowering provinces to regulate gaming within the province.
[188] We conclude by noting that our opinion the Proposed Model would be lawful is predicated on: assumptions that are embedded in the reference questions and appended Schedule; the evidence, argument, and submissions of the AGO; and our understanding of how the Proposed Model would operate, based on both of the foregoing. These assumptions include that: (i) the current iGaming Scheme is lawful under s. 207(1)(a); (ii) under the Proposed Model, players located outside of Ontario but within Canada will not be permitted to participate in games or betting in the absence of an agreement between Ontario and the province or territory in which those players are located; and (iii) as the Schedule specifies, under the Proposed Model “iGaming Ontario will continue to conduct and manage the iGO Sites through its agents”. And, in terms of information on how the Proposed Model would operate, many practical details were not provided. For example, it is unclear whether Ontario will enter into agreements with international operators, foreign state gaming regulators, or foreign jurisdictions; who in the government of Ontario would enter into these agreements; and what requirements would have to be met in such agreements.
[189] For these reasons, and based on the assumptions outlined above, we answer the first reference question in the affirmative. . Dunbar et al v. Ontario Gaming West GTA Limited Partnership
In Dunbar et al v. Ontario Gaming West GTA Limited Partnership (Div Ct, 2022) the Divisional Court sets out some basics of the Alcohol and Gaming Regulation and Public Protection Act, 1996 regime:[27] In order to make that determination, the legislative framework must be examined. The Court of Appeal has clearly set out that framework in Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121, Commencing at para. 21:[21] In Ontario, the authority to regulate lottery schemes is vested in the AGCO, a quasi-judicial regulatory agency established under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26, Sched.
[22] The AGCO regulates lottery schemes through the administration of the Gaming Control Act. The Gaming Control Act, and O. Reg. 385/99, enacted under the Gaming Control Act, set out the statutory framework for regulating the conduct and management of lottery schemes.
[23] Under s. 3 of the Alcohol and Gaming Regulation and Public Protection Act, the AGCO is required to exercise its powers and duties under the Gaming Control Act “in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.”
[24] In contrast to the regulatory power exercised by the AGCO, the authority to conduct and manage lottery schemes on behalf of the province is vested in the OLGC, a Crown agency established under the Ontario Lottery and Gaming Corporation Act, 1999, S.O. 1999, c. 12, Sched. L. Section 0.1 of that Act indicates that the purposes of the Act are: a) to enhance the economic development of the province; b) to generate revenues for the province; c) to promote responsible gaming; and d) to ensure that anything done for one of the other three purposes is also done for the public good and in the best interests of the province.
[25] Importantly, s. 3.7 of the Gaming Control Act authorizes the AGCO to “approve in writing rules of play for the playing of lottery schemes conducted and managed by the [OLGC] if the regulations have not prescribed rules of play.”
[26] Section 22(2) of the Gaming Control Act requires that casino operators ensure that lottery schemes are played in accordance with the rules of play approved by the AGCO:22. (2) No registered supplier who provides services related to the operation of the gaming site maintained for playing a lottery scheme conducted and managed by the [OLGC] … shall permit the playing of a lottery scheme on the site except in accordance with,
...
(b) the rules of play approved in writing by the [AGCO] for lottery schemes, if none have been prescribed by the regulations. [28] At para. 68, the Court of Appeal went on to state:[67] Considered in context, in my opinion, the requirement to provide a complete description of the “rules of the game” is a requirement to describe the rules by which the game is played and which ensure the integrity and fairness of the game assuming it proceeds in the ordinary course. [29] At para. 71, the Court stated:[71] Towards those ends, the legislature requires that casino operators submit to the AGCO for its approval a complete description of each game of chance they intend to offer, including the “rules of the game”, and that casino operators and staff ensure that each game of chance is played in accordance with the approved rules of play. This allows the legislature to strictly control gambling operations that may otherwise exploit individual gamblers or harm the broader public interest.
[72] In order to achieve this objective, the legislature requires the regulator to review rules such as (i) the objectives of the game, (ii) the wagers that may be made, (iii) the chances of winning, and (iv) the advantages of the operator in relation to each wager. All of these rules are integral to the fairness and integrity of games of chance and failure to regulate these items would undermine the remedial function of the legislation. [30] Section 22(1) of the Act now reads differently, but the same intention remains:Rules of play
22 (1) No registered supplier who provides a gaming site, other than a gaming site maintained for playing a lottery scheme conducted and managed by the Ontario Lottery and Gaming Corporation or by the lottery subsidiary, and no registered gaming assistant who provides services to the registered supplier shall permit the playing of a lottery scheme on the site except in accordance with the rules of play and other standards and requirements that are prescribed by the regulations or established by the Registrar under section 3.8. 2011, c. 9, Sched. 17, s. 11; 2020, c. 36, Sched. 18, s. 10 (1). [bold emphasis added] . Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation
In Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation (Ont CA, 2021) the Court of Appeal commented briefly on the OLG:[8] OLG is a Crown corporation that conducts and manages lottery schemes in Ontario on behalf of the provincial government. It operates under an exemption to the prohibition against gaming and betting in Canada under the Criminal Code, R.S.C. 1985, c. C-46. OLG’s profits are paid to Ontario and are the province’s largest source of non-tax revenue.
|
