Matthew Crane
Abstract
Unlicensed online gambling is illegal, although it is not explicitly banned and there exists
no current framework to ban it. It is illegal when online casinos operate without a license in a given province, as that breaks said province’s regulations. Current laws such as the Criminal Code of Canada lack specificity on the topic allowing unregulated providers to flood Canadian markets to the detriment of existing providers, tax revenues, public health and consumer choice. This paper seeks to provide options for how Canada might regulate online gaming websites to safeguard the continued survival of domestic gambling institutions, protect those who are vulnerable to gambling addiction and make our gambling laws consistent and competent. Canada has reasons and the ability to implement the best aspects of the UK and US approaches to online gambling regulation which together provide methods of regulating this new industry which are conducive to diffusion into the Canadian setting. To determine whether different policy options are viable, they will be analyzed using Shipan& Volden's mechanisms for policy diffusion which include learning from early adopters, economic competition, imitation, and coercion. According to policy diffusion theory, Canada is likely to implement some sort of regulation based on all four factors, as similar countries have had replicable successes and teachable lessons from shortcomings. There is also potential for international standards on the issue. Economic competition will also lead to this issue being discussed as the online market becomes more important. Canada has the ability and reasons to engage in an attempt to regulate the online gambling providers who make their services available to those in Canada. Likely implementations include emulating other schemes through amendments to existing laws to more effectively prohibit the practice as well as the creation of new and more accessible paths for providers to become legal and regulated.
Introduction
Many online casinos which operate in Canada are completely unlicensed and there-by
illegal. Other countries with close ties to Canada have attempted with some success to regulate their internet gaming industries ( Beem & Mikler, 2011 ). To analyze the likelihood of regulation of internet gambling in Canada, Shipan and Volden’s policy diffusion theory will be used as a tool of analysis ( Shipan & Volden, 2008 ). Based on this theory, it is likely that Canada will choose to regulate online gambling. The most likely mechanisms for this adoption are economic competition, imitation and learning from others. Coercion is also a possibility, but a less likely mechanism. To explain why these mechanisms may result in policy change the current conditions of the online gaming industry must be examined. First, the rates of gambling among different demographics will be examined to determine the scale of the problem. The social
impacts of online gaming are important factors to consider when deciding on the strength of these regulations. Regulators should also consider that brick and mortar casinos are largely closed and more Canadians, some of who are problem gamblers, are isolated at home due to COVID-19. Then the legal context will be reviewed to determine how problems have been able to occur. In the subsequent sections, regulatory strategies to compensate Canada for unjust enrichment will be proposed for applicable casinos. These will include, amending the CCC, passing federal laws, changes to banking regulation, as well as passing provincial laws and provinces launching lawsuits. To determine which of these are likely to be considered by the government, Shipan and Volden’s policy diffusion theory will be used as a tool to evaluate the viability of each option. Canada has the ability and reasons to engage in an attempt to regulate
the online gambling providers who make their services available to those in Canada.
The Problems With Internet Gambling In Canada
Who (Problem) Gambles?
Most people in Canada gamble. In 2012, more than half of all Ontarians of legal
gambling age purchased a lottery ticket ( Williams, & Volberg, 2013 ). Even youth have access to gambling with stats showing that in the provinces of Newfoundland and Labrador, Ontario and Saskatchewan “80 % of adolescents [..] have gambled at least once in their lifetime” ( Elton-Marshall, Leatherdale & Turner, 2016, 2 ). In this survey participants averaged ~16.45 years of age and had most commonly used sports betting services via the internet ( Elton-Marshall, Leatherdale & Turner, 2016, 5 ). Canada is intended to be among the most legally restrictive casino markets in the world as “[c]asino gambling and online gambling may only be operated by the provincial governments and Indigenous groups ( Baxter, 2019, 3 ). This belief is shared by
Osgoode Hall scholars, who maintain that gambling is banned in Canada in all cases except those that have been exempted in the law ( Osborne & Campbell, 1988, 31 ). Because of this strictness, very few licensed operators exist in Canada. The total lack of operators in the province, legal or illegal, poses a problem for enforcement as most online operators base operations outside of the provincial regulator’s jurisdictions. As an example, PlayOLG remains the only regulated online gambling service in Ontario ( AGCO, 2020 ). Despite this supposed unipolar market, Ontarians including underage people, have been accessing services aside from PlayOLG ( Elton-Marshall, Leatherdale & Turner, 2016, 2 ). We know this because the referenced survey on youth gambling in Canadian provinces predated the launch of PlayOLG. While PlayOLG is the only regulated online provider, they are far from the only available one with hundreds of websites being accessible from Canada through a browser search. Canada has been behind the curve when it comes to regulating this new industry. Regulation is required not just to ensure the authority and laws of the province are being respected, but also to protect Canadians financially. Gambling is a behavioural addiction, and even the act of participating in casino games without wagering money can lead to stimulation of reward centres in the brain which are associated with behavioural addictions ( Kim, et al, 2016 ). Because of the addictive nature of the industry, and the lack of current regulation many Canadians are at risk of becoming internet gambling addicts. This risk is likely exacerbated by the closure of brick and mortar casinos to deal with COVID-19. There is a
plethora of anecdotal evidence that gambling addicts are increasingly shifting to online platforms as a result of the closure of physical gaming locations, increased stress and increased job insecurity however, few long term studies have completed as of yet ( Marsden, 2020, 1008 ). Some large corporations which specialize in casinos and gambling, such as 888 Holdings, have reported an increase in revenue and profit which they attribute to online participation (iGaming
Business Limited, 2020, 1). Some recent news reports and polling have suggested that many gamblers have turned to internet sites as a result of social distancing measures ( Parry, 2020, 1 ). This could translate into an overall increase in problem gambling as access is marginally easier. It also means a substantial loss of revenue for properly managed casinos. One licensed provider, Woodbine Entertainment Group reported at least 130 sites betting on their races without paying or being licensed which resulted in millions in losses ( Rex & Jackson, 2008, 224 ). The same
company also stated that it would like to open online but is prevented by law from doing so. This is all while countries like the UK enjoy a regulated and taxed onshore internet gaming industry worth nearly £84.2 billion over a decade ago (Beem & Mikler, 2011, 169 ). Because of these factors, the provinces should ensure that they have the tools to regulate online gambling and punish improper practices while rewarding proper ones.
Legal Uncertainties
The lack of specificity in relevant Canadian law leaves unlicensed online gambling in a
grey are where it is illegal, although it is not explicitly banned and difficult to control. It is likely illegal when online casinos operate without a license in a given province, as that would break the province’s regulations, in the case of Ontario this would be the Gaming Control Act of 1992. However, the Criminal Code of Canada does not specify that a virtual unlicensed gaming house is illegal to run ( Rex & Jackson, 2008, 223 ). This has led to some debate over whether online providers can be banned, however, earlier views on the legality of gaming saw the issue as one where all forms of gambling are banned, except those explicitly stated in section 190 of the CCC. The question about legality is not based on whether or not an illegal betting house is being operated, but whether a betting house providing services in Canada but with a physical location outside its borders is illegal. This perspective is taken by Osborne and Campbell who assert that “[w]ere it not for the exemptions laid out in the Criminal Code, it is clear that provincial legislatures would have no jurisdiction to permit the operation of lottery schemes otherwise prohibited by the Code” ( Osborne & Campbell, 1988, 31 ). This suggests that regulation of online casinos can potentially be achieved even without Criminal Code amendment. This view is not held by all jurists and has not been in front of the Supreme Court of Canada. In particular, Rex and Jackson note that “[t]he Code makes it illegal to be run or be found in a betting house, but it does not state whether a virtual betting house falls under the ban” ( Rex & Jackson, 2008, 223 ). The current state of the Criminal Code’s definition of an illicit gambling operation is problematic as it does not enable enforcement of relevant law, thereby taking what was intended to be a heavily regulated and taxed industry and allowing any entity with sufficient servers to operate as a casino in Canada.
Legal Context & De-Jure Asymmetry
Inter-Provincial
As one crosses between jurisdictions as the services of online gambling providers often do, one encounters different regulations and laws. This phenomenon is known de-jure asymmetry and it is a feature that complicates Canada’s market (Strazzari, 2017). One of the most striking examples is along provincial borders, with most provinces like Ontario and Quebec having their gaming authorities, while the maritime provinces all have one authority that only offers lottery and bingo (Haarvardsrud, 2015, 1). This is because of the authority provinces have over the issuing of licenses and fines related to gambling and other controlled activities (Constitution Act, 1867, 92: 9, 11, 14, 15, 16). The differences between regional regulations is a barrier to online casinos becoming legal country wide.
Federal Provincial Division of Power
The Federal Government has the authority to ban gaming, while the provincial government has the authority to licence certain companies to provide these services legally as well as to provide them through a provincial crown company like OLG. This is because the law that bans gambling in Canada is the Criminal Code of Canada and “[s]ection 190 [now 197] of the Criminal Code empowers the provinces to enact legislation and to administer licensing schemes authorizing lotteries and gaming (Osborne & Campbell, 1988, 31). Because of this, it is imperative for the future of Internet Gambling regulation for the Federal Government to amend the CCC to clarify the confusion regarding whether Online Gaming Sites are Gaming Houses according to the law. Because this is an issue divided among levels of government, the issue touches on several jurisdictions including multiple provinces causing asymmetries. The most prominent kind of asymmetry, in this case, is de-jure as this kind of asymmetry deals with legal and economic differences (Strazzari, 2017, 58).
Indigenous De-Jure Asymmetry
One example of de-jure asymmetry between boundaries is the fact that section 35(1) rights in the Charter protect Indigenous rights to regulate gambling on their lands as shown by the R v. Pamajewon case (Dalton, 2006, 18). Any attempt to regulate online gambling will bring the Kahnawake Gaming Commission under legal scrutiny for the first time as this commission licenses many large online providers (Rex & Jackson, 2008, 223). If any province were to bring a case against this commission, its various unique legal characteristics would become an interesting issue. The legality of this commission and their licenses has not been thoroughly tested in Canada. One of the first cases in which Indigenous Gambling rights arise is in the Pamajewon case (Dalton, 2006). In the Pamajewon Decision, Chief Justice Lamer “characterized the claimed right as a specific right ‘to participate in, and to regulate, gambling activities on their respective reserve lands’” (Dalton, 2006, 19). This means that while the Kahnawake Gaming Commission’s licensees can provide online services to people living on the Kahnawake reservation without issue, it does not allow them to operate in any other jurisdictions. One option that the commission has would be to use the Van Der Peet test, which would allow their licensees to operate if they can prove that the regulation of gambling in Canada is “an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” (Dalton, 2006, 16). However, when the issue went before the court it decided that indigenous plaintiffs “did not ‘demonstrate that gambling, or that the regulation of gambling, was an integral part of the distinctive cultures of the Shawanaga or Eagle Lake First Nations” (Dalton, 2006, 19). This also applies to the Alexander Gaming Commission, an identical operation near Edmonton (Rex & Jackson, 2008, 223).
Policy Options
American Model: Prohibition and Restriction
Another potential action that can be taken could be to adopt the US approach of pressuring internet payment services such as PayPal to not handle the transactions of online gaming providers (Stewart, 2006, 5). This approach has been shown to have some success such as when the “Florida Attorney General successfully pressured Western Union to stop issuing money orders or wire transfers payable to offshore betting businesses” (Stewart, 2006, 5). The Attorney General of New York was also able to secure an Assurance of Discontinuance of financial transactions of off-shore gaming sites with Citi Bank (Attorney General New York, 2002, 1). The US has also formalized these agreements and further barred transactions by these institutions with the Unlawful Internet Gambling Enforcement Act (Conon, 2009). The passing of this law had an immense impact on the online gaming industry with sites like PartyGaming having “lost $5 billion in market value as its stock plummeted 58% [… s]imilarly, Sportingbet, the operator of sportsbook.com and ParadisePoker.com, dropped 60%, and The 888 Group, operator of gambling site 888.com, fell 33%” (Conon, 2009, 1166). While Canada is not this large of a market, the loss of our market will be felt and there will be incentive to re-enter it legally. If Canada were to attempt to replicate this model it would have to be done by Parliament as under the Distribution of Legislative Powers section of the Constitution Act of 1867, the regulation of trade and commerce, currency and coinage, banking, incorporation of banks, and the issue of paper money along with bills of exchange and promissory notes are all the jurisdiction of the federal government (Constitution Act, 1867, 91: 2,14,15,18). This American law worked by banning the financial transactions of those companies, but relied on the Wire Act of 1961 as a legal basis. In Canada, proving that online gaming providers are operating illegally will not be as difficult as all gambling is banned in Canada with specific exemptions (Osborne & Campbell, 1988, 31) rather than being legal with specific kinds being prohibited like in the US. Because running an illegal betting house is a Criminal Code Offence, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act can be applied. This law has often been used against organized crime groups who, among other activities ran illegal betting houses to seize their illicit proceeds (Department of Justice, 2015, 4). However, in order to apply these laws it would have to be made clear that a website counts as a betting house.
The American approach has several drawbacks however. The US model is fragmented with many different gaming authorities and enforcement practices defined by state and tribal boundaries (Beem & Mikler, 2011, 164). This makes it difficult to become a provider across the entire country, which was an intention of this model as it attempted to create monopolies controlled by the state. In the current climate of international casino operators, this model is becoming difficult. Another issue comes from the California v. The Cabazon Band of Mission Indians ruling which determined that California could not prevent its citizens from gambling on tribal land (Beem & Mikler, 2011, 165). This complicates the landscape when one considers that servers on tribal land may be providing services to a state citizen within said state’s borders. Fragmentation of the market has been the key drawback of the US system. Such fragmentation can be characterized as de-jure asymmetry and is not conducive to regulating this industry.
UK Model: Liberalizing and Licensing
A different option that has been adopted by the UK, is the legalization and regulation of these sites (Rex & Jackson, 2008, 225). The UK model attempts to provide benefits to the providers, regulators and users alike (Beem & Mikler, 2011). Providers seem an unlikely beneficiary of regulations however, “online gambling providers must gain a reputation for fair gaming and honouring winners’ claims”(Beem & Mikler, 2011, 163). A valuable asset in proving to potential new users that a site is legitimate is by showing the user that that site is regulated by a trusted authority, preferably the one that regulates the user’s home industry with which they are familiar. Secondly, the regulation of a site by one or more authorities can make consumers feel more confident in their selection, while still giving them access to a greater selection of providers. In some provinces like Ontario, consumers only have one choice for legal online gambling which is not ideal (AGCO, 2020). Finally, regulators gain leverage over providers by being able to revoke a license and/or subject the provider to some form of penalty. Such reforms could be made at the provincial level as the province is responsible for municipal institutions in the province, shop, saloon, tavern, auctioneer, and other licences which find municipal activities, the incorporation of companies doing business in the said province and all matters of a merely local or private nature in the province (Constitution Act, 1867, 92: 9, 11, 14, 15, 16). According to the same section, the province also must administer justice in civil, criminal and the “Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province” (Constitution Act, 1867, 92:15). However, features of this model may be difficult to replicate across provincial boundaries. For example, part of why the UK is an attractive market to enter is that it has a single authority which covers the entire UK (Beem & Mikler, 2011, 169). This makes it easy for an operator who has to deal with many different authorities around the world. Canada could benefit from doing this and it could be achieved in two different ways. In the past many of the Maritime provinces shared a single authority (Haarvardsrud, 2015, 1). With collaboration the provinces could simplify the legal landscape. Such cooperation is unfortunately unprecedented. Because gambling as a practice is banned with exceptions in the Criminal Code of Canada, this gives the Federal Government power over those exemptions and who can operate legally (Osborne & Campbell, 1988, 31)(Criminal Code of Canada, 1985, Part 7:197). This option could be explored as a method of creating a licensing authority for all federal jurisdiction. The main drawback of the UK’s approach is the lack of enforceability against providers who simply choose to remain offshore. This approach could benefit from the proverbial stick of strong enforcement that the US enjoys while retaining the carrot of legitimacy through licensing. Allowing more providers to register will give Canadians access to a larger and more diverse market of legal options like consumers in the UK have access to (Rex & Jackson, 2008, 226).
Keeping It Civil?
One potential option for the provinces is to sue improperly operating gaming sites. While this scenario is unlikely for reasons that will be explored, it would lead to a very interesting set of events. The first major issue that lawyers will have to solve is that of jurisdiction. In the Club Resorts case the SCC was extremely concerned with the ‘real and substantive connections test’ also called the jurisdiction simpliciter (Castel, 2013, 157). In this case, the SCC found that a Canadian court could assume jurisdiction for the following factors: “(a) the defendant is domiciled or a resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province” (Castel, 2013, 157). In the case of a province suing an online gaming site, the responsibility would be on the province to prove that the court has jurisdiction. I would argue that a court such as the Ontario Superior Court of Justice would have jurisdiction to hear a case under the factors (b), (c), and (d). Since the service is accessible from Ontario, and presumably was accessed from Ontario, it satisfies factor (b). Secondly, Gaming Sites operating within Canada are committing a tort. The tort that I believe a province such as Ontario should sue online gaming providers under is unjust enrichment. The rules for applying unjust enrichment were clarified by the SCC in the Kerr v. Baranow (Kerr v. Baranow, 2011). To prove unjust enrichment one has to show that; the defendant received a benefit, and that the plaintiff suffered loss correlated to that benefit. Beyond this, one must show that there “no juristic reason from an established category exists to deny recovery” (Kerr v. Baranow, 2011). This means that if a province or person can show that a casino operated in a province that it was not licensed to, one can show a causal connection between the unjust action of that casino site, the benefit of the site and the deprivation of wealth from the province. As long as a connection can be shown between the violation of the law, deprivation and enrichment “unjust enrichment will operate to rationalize existing restitutionary principles and to provide relief where these principles do not, but should, exist” (Litman, 1988, 415). Individuals will not be able to do this as there is a juristic category justification for cases where “the defendant cannot be restored to his original position or is a bona fide purchaser” to prevent restitution (Litman, 1988, 436). As it relates to the final category, such action would only be taken if it was provable that Ontario users were accessing the site from Ontario.
Policy Diffusion Theory
Previous analysis of this subject, which was done using Howlett’s refinement of policy windows, found that this issue was unlikely to reach agendas in Canada (Rex & Jackson, 2008, 223). However, Shipan and Volden's work on policy diffusion provides a method of analyzing which policies are conducive to diffusion and what mechanisms would force Canadian regulators to take up the issue (Shipan & Volden, 2008). This theory is based on the idea that policies diffuse across jurisdictional boundaries due to four main factors. These factors are learning from early adopters, economic competition, imitation, and coercion. All of these factors are possible mechanisms for the diffusion of internet gaming regulations into Canada. Canada can learn from the successes and failures of early adopters like the United States. This regulatory scheme prioritized the prohibition of internet gambling but did not succeed in bringing online operators under regulations despite heavily impacting their share price (Conon, 2009, 1166). Learning from the failures of early adopters is a strong mechanism for policy diffusion (Shipan & Volden, 2008, 842). Likewise the UK was able to develop a strong system of liberalizing their market, but has the ability to prosecute those who do not comply (Beem & Mikler, 2011, 169). Doing so would reflect the imitation mechanism which “involves a focus on the other government—what did that government do and how can we appear to be the same”(Shipan & Volden, 2008, 842). Destructive economic competition is another key factor in facilitating the diffusion of internet gambling regulation from other countries. Economic competition is such a prominent factor in regulating this industry that Shipan and Volden as their primary case study for this mechanism “explore state adoption of Indian gaming compacts, arguing that learning and economic competition are both important in explaining initial adoptions” (Shipan & Volden, 2008). Canada should be concerned about capital flight and lost opportunities as in the UK the regulated onshore industry “has grown to the extent that in 2006/2007 total turnover was £84.2 billion” (Beem & Mikler, 2011, 169). By bringing this industry on-shore the UK has created a lucrative industry within their country. In addition this market is becoming more valuable as more gamblers are turning to online services, potentially to avoid COVID-19 (iGaming Business Limited, 2020, 1). Another potential, although less likely option is the coercion path, which is when “in the international setting, […] countries can coerce one another through trade practices and economic sanctions” (Shipan & Volden, 2008). In the past the US attempted to create an international regulatory scheme through the World Trade Organization, but was voted down due to the opposition of countries including Antigua and Barbuda (Schwartz, 2005, 126). The UK is also attempting to become a global leader in the licensing and regulation of gambling (Beem & Mikler, 2011, 169). The only policy option discussed in this paper which is not likely according to the tenets of policy diffusion is the lawsuit option. This approach has not been adopted as of yet by countries that Canada has close ties to and would suffer from jurisdictional issues. When it comes to regulating online gambling Canada is most likely to confront its lack of action because of economic competition and opportunism.
Recommended Reforms
In order to deal with the various shortcomings of its current gambling regulation scheme Canada has a variety of effective policies it can choose to imitate. These come from the US and UK, countries with which Canada has close ties with whose policies are also conducive to diffusion. Above all, the wording of the Criminal Code of Canada must be changed so that it is clear an online casino is covered by the term regardless of where the service’s physical location may be located (Rex & Jackson, 2008, 223). It must be clear in the law that permitting access to a website within a jurisdictional boundary is equivalent to operating those services within it. Canada should also pursue restring cash flow to illicit providers the way the US has by developing a method of stopping said cash flow by pressuring banks and other intermediaries which are regulated by the state (Stewart, 2006, 5).This would be done in Parliament as well, since according to the Constitution Act of 1867, the regulation of trade and commerce, as well as banking, and incorporation of banks are all the jurisdiction of the federal government (Constitution Act, 1867, 91: 2,14,15,18). This strategy would be done by amending the Bank Act to prevent such unlawful transfers, as this law contains most information on the regulation and incorporation of banks (Bank Act, 1991). This option could also be pursued through the Proceeds of Crime (Money Laundering) and Terrorist Financing Act which has been used in the past to seize the assets of organized crime groups who, among other activities ran illegal betting houses to seize their illicit proceeds (Department of Justice, 2015, 4). The CCC could also be amended so that ‘gaming equipment’ includes servers and financial intermediaries used by the sites (Criminal Code of Canada, 1985, Part 7:197). The UK model also contains many desirable features which can be emulated in Canada including a national licensing scheme, a clear path to regulation and the benefits of bringing industry on-shore which include tax revenue and investment opportunity (Beem & Mikler, 2011, 169). When amending the Criminal Code of Canada the Canadian Federal Government should consider creating an exception in the applicable section for a country wide regulatory board, as a lack of de-jure asymmetries is an attractive feature for companies considering leaving the legal grey area for legitimacy. A single license lowers the cost of becoming licensed and has been effective in attracting operators to UK regulations (Beem & Mikler, 2011, 169). If this cannot be accomplished, provinces should consider cooperating as the maritime provinces have in the past to simplify the market (Haarvardsrud, 2015, 1). By implementing the US’s strategy regarding prohibition and the UK’s licensing model, Canada can take advantage of the benefits of both systems by being able to easily and effectively license new providers while severely restricting the ability of illicit ones to operate.
Conclusion
Canada has several strong options for regulating and enforcing its gaming laws, many effective strategies to borrow from, and a high chance that internet gambling regulation will be brought to political agendas. The most likely and potentially effective reforms could be implemented at the federal level. This is because the Criminal Code of Canada is a Federal Law and has two key features that could be altered to implement effective regulation of internet gaming. First, it can clarify the term betting house to include websites and ‘gaming equipment’ to include servers and data centres as well as the financial institutions used by the sites (Rex & Jackson, 2008, 223). Second, it can create an exemption to allow a national scheme for licensing to reduce de-jure asymmetries. The Federal Government also has the power to use laws such as the The Bank Act, Proceeds of Crime (Money Laundering) and Terrorist Financing Act to seize funds from illicit sites in a way that is similar to the progress made in the US in internet gambling regulation (Department of Justice, 2015, 4) (Bank Act, 1991). The implementation of all of these policies combined with the knowledge that treaty rights do not protect online casinos licensed on Indigenous Governed lands from provincial regulations, could lead to a market where the provinces and companies can have a productive relationship in providing Canadians with safety, regulation and choice in the online gambling industry.
Matthew Crane is a fourth-year political science major interested in digital humanities, internet governance and environmental issues involving the internet. He is
interested in how the internet has impacted federal
regulations in many areas. He also researches and writes on sustainable agriculture.
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