Canada’s Online Poker Future Gets a Grilling at Supreme Court

^{Nine justices on the Canadian Supreme Court will determine just how global legal online poker in Ontario (and Alberta) is allowed to be. (Photo: Sean Kilpatrick / The Canadian Press)}

OTTAWA – Can Ontario still claim to control an online poker game when some of the players are sitting in Malta, Singapore or elsewhere around the world?

That question – and just how much control Ontario would really have – dominated arguments before the Supreme Court of Canada on Wednesday in a case that could determine the future of online poker in the country.

Several justices pressed lawyers supporting Ontario’s plans to pool its online poker players with international markets, questioning whether the province could adequately regulate a game taking place across multiple jurisdictions.

“It takes two to tango,” Justice Malcolm Rowe said at one point, accusing Ontario lawyers of constructing a “word salad” in their attempts to fit a cross-border poker game within Canada’s gambling laws.

“You are outsourcing some of the regulation,” Justice Mary Moreau said.

The stakes extend well beyond one province. Ontario wants to allow its licensed online poker operators to share liquidity with players outside Canada. Alberta, which has since opened its own regulated iGaming market, supports Ontario’s position.

A victory for Ontario could open the door for both provinces – and potentially others – to join much larger international poker pools. A loss could keep Canadian online poker players largely fenced within provincial borders.

Casinos.com broke down the stakes of the case – and why Canadian gambling law experts believed Ontario entered Wednesday’s hearing with the upper hand – in our preview of the Supreme Court poker liquidity battle.

Lawyers representing a consortium of provincial lottery companies are trying to block Ontario’s plans, arguing that Canadian law does not permit a province to conduct gambling that extends beyond the country.

Ontario – backed by Alberta, the Canadian Gaming Association, Flutter Entertainment and GGPoker operator NSUS – says the law gives it the right to look abroad for a better poker experience for its residents.

One gambling law expert who has himself argued cases before the Supreme Court of Canada told Casinos.com after Wednesday’s arguments that he remains optimistic Ontario will prevail.

“[I’m] still optimistic that the SCC will support the Ontario Court of Appeal, uphold its decision & dismiss the appeal,” said Michael D. Lipton of Dickinson Wright law firm in Toronto.

Who Controls a Poker Game Played Across Borders?

The issues at hand are complex, in large part because they rely on legal wording crafted by pre-Internet governments, in some cases dating back to the 1960s.

The case hinges on interpreting Section 207(1)(a) of Canada’s Criminal Code, which states that it is lawful for “the government of a province” to “conduct and manage a lottery scheme in that province.”

The issue that dominated the hearing was therefore whether a poker game involving players from Canada, Malta and Singapore, for example, could be said to be “conducted and managed” by Ontario.

The peculiarities of Canada’s gambling law mean that all forms of gambling, including the iGaming operations currently permitted in Alberta and Ontario, must technically be conducted by the state lottery.

Regulators and lawmakers have sliced through these entanglements by creating state-owned entities such as iGaming Ontario and having private operators sign agreements to effectively offer gambling to consumers on its behalf.

Matthew Milne-Smith, acting for the lotteries, said that this reality means Ontario has no right to allow gambling involving other nations.

“What is permitted is [online poker] in that province. It is not in that province, and Malta,” he said.

Ontario says differently.

“It’s really no different [than] betting on the Super Bowl,” argued Joshua Hunter from the office of the Attorney General of Ontario.

In essence, he said, a poker player in Ontario is betting on the contents of an opponent’s hand, much as they might gamble on an international sporting event.

Justices Press Ontario on ‘Outsourcing Regulation’

Several justices appeared suspicious of the concept that Ontario could be said to be “conducting and managing” online poker games in its province if some of the players in that game are in other countries.

Judges also expressed concerns that poker players in other jurisdictions could defraud players in Ontario without the ability of the province to do much about it.

Ontario’s representatives countered that the province would only enter into liquidity arrangements with partners it trusted and would ensure its players were properly protected by the use of contractual terms.

Only Justice Mahmud Jamal seemed publicly comfortable with the concept of Ontario having sufficient regulatory control over a commercial activity that was happening in more than one country at the same time, likening it to a phone call between nations.

A 2003 Lottery Case Looms Large

Frequent reference was made on all sides to Earth Future Lottery, a landmark Supreme Court case in 2003.

A charity based in Prince Edward Island, which has a population of less than 200,000, was told by the court it was illegal for it to continue selling lottery tickets internationally.

Lawyers representing lotteries from British Columbia, Quebec and elsewhere said the case establishes a precedent that would be breached if Ontario is allowed to continue with its plans.

Ontario’s advocates, meanwhile, argue that it has no intention of inviting international gamblers into its market.

“People routinely engage in commercial activities that take place all over the world,” said lawyer Scott Hutchison, acting on behalf of Flutter.

“Ontario is conducting and managing a game within its province. Anybody in Ontario who is involved in this game will be directly explicitly governed by Ontario,” he said.

What a Win Could Mean for Canadian Poker

Although the case initially concerned only Ontario when it began in 2024, Alberta has since completed its own re-regulation of iGaming, complete with online poker.

A victory for Ontario on this issue could open the door for other provinces to pursue international poker liquidity.

As a result, Alberta’s Attorney General joined those arguing for the appeal to be dismissed and spoke before the Supreme Court on Wednesday.

Experts who spoke to Casinos.com in the run-up to the hearing pointed to a group of U.S. states that currently share poker liquidity as possible partners for Alberta and Ontario should they win.

However, it was notable that during Wednesday’s arguments before the Supreme Court there was not a single mention of Canada’s southern neighbour.

Instead, lawyers hypothesized linkages with Singapore, Spain, Portugal, France and Malta, which acts as a hub for much of Europe’s online gambling industry.

A conjoining between Alberta and Ontario for online poker remains possible regardless of the outcome because both would operate within Canada.

For international liquidity, however, the industry now has to wait.

It could be as long as six months before the justices finish their deliberations and issue a ruling.

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