When asked whether “gambling” is lawful in Canada, the focus has often been upon the commercial enterprises that provide gaming and betting services to people in Canada. Less frequently asked is the question of whether the individual in Canada who registers with a website based outside of Canada that allows him or her to bet or play “real money” games online is breaking any criminal law.

Under the common law that existed prior to the enactment of the Criminal Code (the “Code”), gaming was not illegal. For a brief period of time, the Code included a provision which explicitly made it unlawful to play in a “common gaming house” (although no similar prohibition ever applied to those who bet in a “common betting house”). Section 199 of the Code, enacted in 1892, stated: “Every one who plays or looks on while any other person is playing in a common gaming-house is guilty of an offence…”

This provision was repealed in 1909. In 1913, the Code was amended to make it an offence to be “found in” a common gaming house or common betting house, a prohibition which in its basic form remains in the Code to this day. However, the prohibition against playing in a common gaming house was never re-enacted.

In the years that have followed, it has been held that in the absence of “clear and unequivocal language” in the Code that explicitly criminalizes the activities of bettors and gamers, no existing provision of the Code can be interpreted to have this effect. Creative interpretation of the present provisions of Part VII of the Code cannot render the activities of individual bettors and gamers illegal; nothing short of an amendment of the Code will suffice for that purpose.

Could a successful prosecution be brought against a person for being “found in” a place where a computer is being used for online gaming, on the basis that such activity transforms the “place” into a “common gaming house” as defined by s. 197 of the Code? Section 197 defines a “common gaming house” as:

…a place that is

• kept for gain to which persons resort for the purpose of playing games, or
• kept or used for the purpose of playing games
  • in which a bank is kept by one or more but not all of the players;
  • in which all or any portion of the bets on or proceeds from a game is paid, directly or indirectly, to the keeper of the place,
  • in which, directly or indirectly, a fee is charged to or paid by the players for the privilege of playing or participating in a game or using gaming equipment, or
  •  in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game.

It does not appear that any such “place” exists in the circumstances of online gaming. The Deputy Ministers Responsible for Justice Coordinating Committee of Senior Officials Working Group, formed in 2006 to consider and report on a number of issues relating to the Code and online gaming (the “Working Group”), seems to have operated from the same point of view. One of the questions that the Working Group has considered is whether an offence should be introduced into the Code which would penalize the actions of Canadians who access online gaming that is not conducted lawfully in Canada. We are advised that the Working Group has shown no interest in criminalizing the activities of individuals who bet or gamble in this manner, being fully aware of the authoritarian tactics that would be required to enforce such a prohibition. The very fact that the question is being considered by the Working Group tends to confirm that senior Justice officials do not believe that the existing provisions of the Code provide a basis for prosecuting individuals in this manner.

As online gaming continues to expand worldwide and as the provincial governments of Canada expand their own online gaming activities, the unfettered ability of Canadian residents to participate in foreign-based online gaming will continue to present itself as a policy issue. The approach of the provincial and federal governments to this issue can be expected to evolve, and as a consequence it will remain a subject well worth revisiting from time to time.