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Criminal - 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 the lotteries and gaming [under CCC 207(1)(a) 'Gaming and Betting - Permitted lotteries'] criminal provision:1. The statutory scheme governing lotteries and gaming
[159] Section 207(1)(a) operates within Part VII of the Criminal Code, which balances federal criminal prohibitions with provincial regulatory authority. Lotteries and gaming have a double aspect: Parliament may criminalize them under s. 91(27) of the Constitution Act, 1867, in order to protect public morality, while provinces may regulate them under ss. 92(13) and (16) to address local impacts. Both orders of government have long sought to exercise their constitutional authority to control lotteries and gaming because, while they can serve recreational purposes and generate revenue for governments, charities, and religious organizations, they still risk harming society and attracting crime. If their respective laws clash, the federal law prevails over the provincial law: Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at paras. 22, 28-30, and 35.
[160] As we have explained, the broad reading of s. 207(1)(a) advanced above accords with the approach that Parliament expressly took in relation to “lottery schemes” that involve the interprovincial marketing and sale of lottery tickets, addressed by s. 207(1)(e).
[161] Further, on the question of whether Parliament intended to prohibit provincially-run lottery schemes from being linked to lottery schemes in other countries, it is useful to note that the definition of “lottery scheme” in s. 207(4) contains exclusions that prohibit provincial governments from conducting and managing certain specific forms of gaming. Parliament evidently had policy reasons for not wanting “three-card monte, punch board or coin table” to be played anywhere in Canada, not even if those games were conducted and managed directly by a provincial government.
[162] Parliament also evidently did not want to undermine the regulatory scheme in s. 204 of the Criminal Code that governs pari-mutuel betting on horse racing by allowing the provinces to create alternative regulatory schemes under s. 207(1)(a). In both instances, Parliament addressed these concerns by using clear and specific language.
[163] However, s. 207(4) is silent on the issue of whether a province can link its own government-run lottery scheme to a foreign lottery scheme. By contrast, s. 207.1(1)(b) of the Criminal Code, which carves out an exception from the Part VII gaming prohibitions for lottery schemes[7] on international cruise ships, expressly bars these schemes from being “linked, by any means of communication, with any lottery scheme … located off the ship”.
[164] Parliament’s decision to expressly require lottery schemes on international cruise ships to be entirely self-contained, but to not put any similar restriction on the lottery schemes conducted and managed by provincial governments under s. 207(1)(a), supports the inference that this latter omission was intentional, in much the same way that Parliament has chosen to let provincial governments conduct and manage lottery schemes involving betting on single sporting events, which remain prohibited on international cruise ships: see ss. 207(4) and 207.1(4).
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D. Parliament’s purpose in enacting s. 207(1)(a)
[173] The final step in the Modern Principle analysis requires us to consider Parliament’s purpose in enacting s. 207(1)(a) of the Criminal Code.
[174] The legislative history of s. 207 reveals that Parliament’s purpose in enacting the section was to decriminalize and regulate gambling to further public safety. Further, its specific purpose in enacting s. 207(1)(a) was to allow for provincial choice that would reflect varied public sentiment about gambling across the country. As we explain below, a consideration of Parliament’s purposes favors the interpretation advanced above, which would permit players in Ontario to participate in international play within identified limits, in games that would still be conducted and managed by the government of Ontario.
[175] Historically, Parliament criminalized most lotteries and gaming through versions of the provisions now found in Part VII of the Criminal Code. Lotteries were prohibited under what is now s. 206, and categorized as offences against morality, leaving little space for provinces to regulate them: Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121, 296 C.C.C. (3d) 245, at para. 18, leave to appeal refused, [2013] S.C.C.A. No. 192 (Moreira), and [2013] S.C.C.A. No. 193 (Barbuscio); Keystone Bingo Centre Inc. v. Manitoba Lotteries Foundation and Manitoba (1990), 1990 CanLII 7987 (MB CA), 69 Man. R. (2d) 63 (C.A.), at para. 26, leave to appeal refused, [1991] S.C.C.A. No. 60; L’Association St. Jean-Baptiste de Montreal v. Brault (1900), 1900 CanLII 69 (SCC), 30 S.C.R. 598.
[176] However, by 1956, a Joint Committee of the Senate and the House of Commons recognized that the then-existing prohibitions were ineffective, fostering public contempt for the law and creating opportunities for fraud. The committee recommended reforming and relaxing the prohibitions against lotteries and favoured provincial regulation: Joint Committee of the Senate and House of Commons on Capital Punishment, Corporal Punishment and Lotteries, Final Report on Lotteries, 22-3 (31 July 1956), at pp. 65-69, 72.
[177] In 1969, Parliament reformed the Criminal Code to exempt federally and provincially conducted and managed lottery schemes from the prohibitions in what is now s. 206, empowering provinces to regulate them to use generated revenues responsibly: Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 13.
[178] The 1969 amendments to the Criminal Code reflect a conscious shift from criminal prohibition to regulated oversight by federal or provincial governments, whose choices Parliament sought to respect as long as they fell within the broad limits set by the Criminal Code. Both the jurisprudence and the legislative history make this clear: Siemens, at para. 35; R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 90. The responsible Minister of Justice in 1969, John Turner, expressed Parliament’s intention as follows (House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, 28-1: Vol. 1. No. 9 (11 March 1969), at p. 331):We feel that public opinion in this country is not unanimous about it and that it might vary from region to region. We are, therefore, leaving it to the regions, as that public opinion may be interpreted by provincial governments that their provincial Attorneys General have control over whether or not there should be lotteries permitted within provincial boundaries. [Emphasis added.] [179] Minister Turner explained further, saying (House of Commons Debates, 28-1, Vol. VII, (21 April 1969), at p. 7781):Through its criminal law the federal government says: “That is your business. We are withdrawing from the field. We are giving you the option. You decide in terms of the opinion of your own people in the province whether you want a lottery scheme. If you do, the conditions that you attach to such scheme[s] are a provincial matter”. [Emphasis added.] [180] Further amendments in 1985 removed the federal government’s ability to conduct and manage lotteries, reflecting Parliament’s view that provinces were best placed to oversee them: An Act to amend the Criminal Code (lotteries), R.S.C. 1985 (1st Supp.), c. 52, s. 3; Senate, Standing Senate Committee on Legal and Constitutional Affairs, Evidence, 33-1, No. 29 (26 November 1985), at pp. 13, 16, 21 (Hon. Otto Jelinek); Senate, Standing Senate Committee on Legal and Constitutional Affairs, “Twelfth Report”, Minutes of Proceedings, 33-1, No. 35 (16 December 1985), at pp. 14-15.
[181] After these reforms, provinces began to permit and regulate other forms of gaming besides lotteries, such as casinos. In 2021, the Criminal Code was amended to enable provinces and territories to conduct and manage “lottery schemes” involving betting on a single sport event or athletic contest. In 2022, Ontario began conducting and managing sports betting, lottery and casino games online through its agents, the iGO Operators.
[182] Ontario responded to the changing statutory framework by establishing a comprehensive regulatory framework over lotteries and gaming through three provincial statutes: the Gaming Control Act, 1992, and its regulations; the Ontario Lottery and Gaming Corporation Act, 1999, S.O. 1999, c. 12, Sched. L.; and the Alcohol and Gaming Commission of Ontario Act, 2019.[8] The Alcohol and Gaming Commission of Ontario regulates lottery schemes and horse racing, while the Ontario Lottery and Gaming Corporation manages ticket-based lotteries and casinos, and the Ontario Lottery and Gaming Corporation and iGO each manage online platforms.
[183] The legislative history of s. 207 – and s. 207(1)(a) in particular – demonstrates that Parliament’s purpose was to replace federal criminalization of lottery schemes with provincial regulation, thereby minimizing harm and empowering the provinces to make gaming policy within the broad parameters established by the Criminal Code: Siemens, at para. 35; Mohawk Council of Kahnawà:ke, at para. 95; R. v. Andriopoulos, [1993] O.J. No. 3427 (Gen. Div.), at paras. 6-8, 11-13, aff’d 1994 CanLII 147 (C.A.).
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