Originally published in Blakes Bulletin on Gaming, December 2007
Highlights:
- Prohibits advertising of illegal Internet gambling sites in Ontario or primarily intended for Ontario residents
- Complements the federal Criminal Code's gambling provisions
The Ontario government has enacted amendments to the Consumer Protection Act (the Act) that specifically prohibit the advertising of illegal Internet gambling sites. The amendments will come into force on January 1, 2008.
The amendments provide that no person shall advertise an Internet gambling site that is operated contrary to the Criminal Code (Canada) and that no person, other than an Internet service provider, shall arrange for or otherwise facilitate such advertising.
In Canada, the conducting of gambling is an offence under the Criminal Code but it is permitted pursuant to limited exceptions. The most relevant exception in a commercial context is gambling conducted and managed by provincial governments. Another exception is private bets between individuals not engaged in the business of betting.
By aiding and assisting illegal gambling activity, advertisers could be found liable under the existing Criminal Code provisions. The amendments enacted by Ontario complement the federal Criminal Code provisions and provide the province with a means within its jurisdiction of addressing illegal gambling sites. Under Canada’s constitution, provincial governments have jurisdiction over property and civil rights, under which falls consumer protection legislation, whereas the federal government has jurisdiction over criminal matters.
Application
The offence created by Bill 152 only applies to advertising that originates in Ontario or is primarily intended for Ontario residents.
Although courts have yet to conclusively determine the matter, offshore Internet gambling operators, and those who aid or assist them, would also likely be liable under the Criminal Code where there is a sufficient connection with Canada, such as where advertising is intended for Canadian residents.
Advertising And Illegal Internet Gambling Site Defined Broadly
What constitutes advertising of illegal Internet gambling sites is defined broadly in Bill 152 to include:
- providing, by print, publication, broadcast, telecommunication or distribution by any means, information for the purpose of promoting the use of an illegal Internet gaming site,
- providing a link in a Web site for the purpose of promoting the use of an illegal Internet gaming site, but does not include a link generated as the result of a search carried out by means of an Internet search engine, and
- entering into a sponsorship relationship for the purpose or promoting the use of an illegal Internet gaming site.
The amendments also define broadly an illegal Internet gambling site as a site that accepts or offers to accept wagers or bets over the Internet:
- as part of the playing of or participating in any game of chance or mixed chance and skill that is to take place inside or outside of Canada, or
- on any contingency or on any event that may or is to take place inside or outside of Canada, including, without restricting the generality of the foregoing, a casino game, card game, horse race, fight, match, sporting event or contest.
Enforcement
Under Bill 152, Ontario’s Ministry of Consumer and Business Services will be authorized to investigate and facilitate the prosecution of advertising of illegal Internet gambling sites. Conviction under the Act will carry liability, for individuals, of fines of up to C$50,000 and imprisonment of up to two years less a day, or both, and, for corporations, of fines of up to C$250,000. Courts may also order the payment of compensation or restitution. These penalties are separate from and can be in addition to the penalties provided under the Criminal Code for conducting, or aiding or assisting in the conduct of, illegal gambling, which include imprisonment of up to two years.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
