The Canadian Gaming Association (CGA) has announced that it has filed for intervenor status regarding a reference question recently filed by the government of Ontario to the Ontario Court of Appeal regarding the international liquidity of legal gaming in the province.

If approved, the CGA would have the right to intervene and to file evidence in the question, which asks whether daily fantasy sports and online poker in Canada could be expanded while still adhering to the Criminal Code.

On February 2, the Ontario government approved an Order in Council to consider the question of whether such online gaming would remain lawful under the Criminal Code if users could legally participate through parties outside Canada and if not, to what extent.

Currently, players participating in legal online gaming and sports betting in Ontario must be located within the province and all gaming and betting operators used must be licensed in Ontario.

The Order in Council, which has been referred to the Court of Appeal for hearing and consideration, notes that “by permitting players participating in legal online gaming and sports betting to participate in games and betting involving players located outside of Canada, Ontario could channel players away from unlawful gaming and betting schemes operating without any oversight into a lawful alternative that is conducted and managed by the province.”

The Order asserts that doing so could “ensure that the public interest is secured through greater protections for players and the broader public, as well as the generation of revenue for the public purse.”

“It is in the public interest that the issue of whether an online lottery scheme conducted and managed by a province which permits its users to participate in games and sports betting involving players outside of Canada is lawful under the Criminal Code be settled authoritatively as soon as possible,” says the Order.

Depending on the court decision, DFS and online poker operators could feasibly pool Ontario players with other international jurisdictions.

CGA: Reference raises issues ‘of fundamental importance’

The CGA is one of five applicants for intervenor status, alongside the Province of British Columbia; the Canadian Lottery Coalition that is comprised of the British Columbia Lottery Corporation, Alberta Gaming, Liquor & Cannabis, the Manitoba Liquor and Lotteries Corporation, Loto-Québec and the Atlantic Lottery Corporation, the Mohawk Council of Kahnawa:ke, FanDuel and PokerStars owner Flutter Entertainment and NSUS Group Inc., which is the owner of GGPoker.

Intervenor status grants a person or entity that is not party to the legal proceedings the right to participate. Proposed intervenors must show that they have an interest in the proceeding and will make submissions that are both useful and different from the parties’ own submissions, thus providing their own perspective on the issues raised by the parties based on the intervenor’s particular experience and expertise. It is at the court’s discretion to approve or reject intervention applications.

The CGA’s motion to be granted intervenor status will officially be filed on May 1 and hinges on several factors. The association states that the reference raises issues “of fundamental importance” to gaming and betting operators in Ontario, many of which are CGA members.

The association says it can offer “a frontline perspective on how online gaming works in Ontario” including knowledge of the platforms and their functionality and the effect that introducing international play would have on the market. The CGA argues that section 207(1)(a) of the Criminal Code does not preclude international play and that if Ontario were not permitted to expand its borders, “it would frustrate the objectives of the Criminal Code prohibition on gaming, and would frustrate Ontario’s goals of meaningfully regulating the market for gaming.”

The association said in an emailed release that it is happy to support the Attorney General “to ensure that the perspective of the Canadian gaming community is considered so that the court can release a principled decision that benefits the industry.”

There will be a hearing to consider the applications of intervenors including the CGA on May 1. The consideration of the question itself by the Court of Appeal is not set to be heard until late November.