Game on: Court of Appeal greenlights cross-border betting and gaming for Ontario players

On November 11, 2025, the Court of Appeal for Ontario released its decision in Reference re iGaming Ontario (the Reference), which addressed whether provincially-regulated gaming involving players outside Canada is permitted under the Criminal Code¹. A five-member panel of the Court split four to one, with the majority saying “yes”.

What you need to know

• The Reference. The Reference asked the Court of Appeal whether legal online gaming would remain lawful under the Criminal Code if Ontario players were permitted to participate in peer-to-peer games and sports betting with players located outside Canada. Players in other parts of Canada would not be allowed to participate in these games, subject to an agreement between Ontario and the other province or territory.
• Ontario-based players can game and bet beyond borders. A majority of four judges held that permitting Ontario players to participate in games with non-Canadians is permitted under the Criminal Code. The text, purpose and scheme of section 207(1)(a) of the Criminal Code support the conclusion that Ontario is permitted to link its proposed provincially-managed scheme with foreign jurisdictions.
• Dissent disagreed with legality of model. One judge dissented on the basis that, to remain legal, a provincially-managed lottery must be conducted and managed in the province. Since funds would be pooled between players in Ontario and those outside Canada, the games and lotteries would not entirely occur “in the province” and would not be entirely conducted and managed by Ontario.
• Next stop, Supreme Court. It is likely the Court of Appeal’s word is not the final say on the issue. As the parties have a right of appeal, this matter may well go to the Supreme Court. Even barring an appeal, implementation details around the proposed model will still need to be filled in, including agreements with foreign operators and regulators, and operational safeguards.

Internet gaming in Ontario and its regulation

Part VII of the Criminal Code generally prohibits gambling and lottery-related activities in Canada, subject to certain exceptions. The central exception at issue in the Reference was section 207(1)(a). It permits provincial governments, alone or in conjunction with other provincial governments, to conduct and manage lottery schemes (including computer-based lottery schemes) “in that province” (plus participating provinces) under provincial law. Under this exception, the provinces have enacted provincial legislation governing gaming and lotteries.

In Ontario, gaming is regulated and administered by the Alcohol and Gaming Commission of Ontario, an agent of the Crown. Internet gaming in Ontario is offered through iGaming Ontario (iGO), a government corporation and Agent of the Crown. Currently, players must be located in Ontario and are not permitted to participate in games involving players outside of Ontario.

In February 2024, Ontario referred to the Court of Appeal the question of whether legal online gaming would remain lawful under the Criminal Code, if Ontario players were permitted to participate in peer-to-peer games and sports betting with players located outside Canada (while continuing to exclude players in other Canadian provinces, unless Ontario reaches interprovincial agreements).

Majority says “yes” to non-Canadian players

The majority held that the case turned on the statutory interpretation of the phrase “in that province” in section 207(1)(a) of the Criminal Code. Applying the modern principles of statutory interpretation, their analysis was based on the text and purpose of the provision, as well as the scheme of the gaming provisions in the Criminal Code.

The Court interpreted the text of “in that province” broadly. The majority noted that the text of section 207(1)(a) is silent on whether a provincially-run lottery scheme can be linked with other countries. But because legislation is presumed to be territorial, Parliament can be presumed to have decided that “whether people in other countries should be allowed to take part in provincially-run lottery schemes” should be determined by the governments of those countries². The Court held that the text of the provision supported a broad interpretation of the phrase “in that province”. It noted that the provision expressly allows provincial government-run lottery schemes to cross interprovincial borders with the agreement of other provinces (including permitting the interprovincial marketing of and sale of lottery tickets), indicating that Parliament’s concern was not “something that was inherently contrary to public policy”.

The statutory scheme of gaming provisions supports a broad interpretation. The majority also relied on the scheme of the Act. It noted that both Parliament and the provinces have legislative authority over gaming and lotteries. The former to protect public morality and the latter to address local impacts. Where Parliament had specific concerns (e.g., in relation to specific games), it expressly prohibited them using clear and specific language. However, the fact that there is no prohibition against provincial lottery schemes being linked to foreign lottery schemes suggests that this omission was intentional.

The purpose of the provision supports a broad interpretation. The majority explained that Parliament’s purpose in enacting section 207(1)(a) was to replace federal criminalization of lottery schemes with provincial regulation, minimizing harm and empowering the provinces to make gaming policy under the Code’s broad parameters. Permitting international players is consistent with this purpose. The internet has made it difficult to prevent Canadians from accessing offshore gaming sites, which are unregulated by Canadian authorities. But allowing Ontario to regulate Ontario-based players who want to play online games against players outside Canada advances public safety by bringing such gaming under protective regulation, while preserving public revenue sources.

Minority says “no go”

Justice van Rensburg dissented, concluding that allowing Ontario players to play with those outside Canada would contravene the Code gaming prohibitions. From the outset, Justice van Rensburg took a different approach. She held that the proposed scheme had to specifically fit within the terms of the specific statutory exception in section 207(1)(a), as opposed to not being expressly excluded. Moreover, she disagreed with the majority’s characterization of the scheme as a provincially-run lottery scheme “interacting with” an international lottery scheme. Rather, the proposed model would be one interlocking scheme because funds would be pooled between Ontario and international players.

In her view, Ontario’s actions in relation to the proposed lottery would take it outside the protection of section 207(1)(a) because they would not occur entirely “in that province” (i.e., within the territorial boundaries of Ontario). In coming to this conclusion, Justice van Rensburg noted that, where Parliament referred to actions outside the province or country, it said so expressly: Parliament specifically allowed provinces to conduct lotteries in conjunction with other provinces but not with international entities. Finally, the goal of preventing and addressing the potential harms of gaming requires the province to control the games and the gaming framework in which the players participate. This cannot be achieved if the scheme is not conducted and managed “in that province”.

Implications

The decision takes a broad view of the exceptions for provincially-run, internet-based lotteries under the Criminal Code. However, the Court of Appeal for Ontario’s decision may just be the first step in determining the legality of Ontario’s proposed new internet gaming model, as we expect an appeal is likely. Torys will continue to monitor and report on these developments.