Atlantic Lottery Corporation, et al. v. Attorney General of Ontario (42141)

Chief Justice, Justices, I act for four provincial lottery corporations representing seven provinces from one end of the country to the other.

Atlantic Lottery Corporation, which represents Newfoundland and Labrador, PEI, Nova Scotia, and New Brunswick, Lotto Quebec, Manitoba Liquor & Lottery Corporation, and the British Columbia Lottery Corporation.

This reference asks whether an online game like poker with players from around the world somehow occurs in Ontario.

In my respectful submission, the Court of Appeal for Ontario made three errors, each of which is sufficient, but only one of which is necessary to allow the appeal.

First, the court erred in assuming that Ontario's scheme would exclude Canadians outside Ontario.

Second, the Court of Appeal erred in reversing the structure of the Criminal Code's gambling provisions, and thereby misinterpreting Section 207(1)(a) of the Criminal Code.

As part of this argument, I will submit that the Court of Appeal committed a purpose error.

It allowed one legislative goal, provincial autonomy, to override both the text of the statute and other equally important legislative purposes.

Third, the Court of Appeal erred in distinguishing this court's decision in Earth Future Lottery.

My partner, Mr. Sethi, will address various arguments invoked by Ontario and certain interveners.

So that takes me briefly to my first submission, the evidence.

A core assumption of Ontario's reference question is that Canadians outside Ontario will not be able to participate in the proposed lottery scheme.

And I will take the court to my condensed book, tab two, where we see that this is made explicit.

So on the first page, page three, the red numbering is the numbering I'm gonna refer to for the pages, asks whether legal online gaming and sports betting remains lawful, et cetera, involving individuals outside Canada.

So they are very explicit that this proposed scheme involves betting outside, does not include people in Canada outside Ontario.

And then if you go to page four, this is the schedule to the reference question.

Even more explicit, players located outside of Ontario but within Canada would not be permitted to participate.

Now, the Court of Appeal majority explicitly held that their finding was predicated on this, among other assumptions.

That's set out at paragraph one eighty-eight of the majority reasons, which is the second last paragraph where they summed up the nature of the ruling.

This, I say, is an implicit concession that the Criminal Code does not permit one province to run a lottery scheme affecting residents of the other provinces without permission.

The problem is that the reality is very different.

Now, if you access one of these iGaming Ontario sites, what we call the .ca sites, because they have .ca in their URL, here in Ottawa, they work as intended.

However, if you go across the river to Gatineau, something different happens.

And we've included at the next tab of our condensed book, tab three So this is a screenshot of the popular betting website bet99.ca. Our investigator was in Saskatchewan, not Gatineau, when this was done, but we're on common ground that this is what happens across the country outside Ontario.

So if you try to go to this .ca site outside Ontario, you get a little box that comes up and says, "Looks like you're in Saskatchewan.