Quebec's ISP blocking law for gambling sites and why the courts struck it down

What the law said

On May 17, 2016 Quebec's National Assembly adopted an omnibus budget law, An Act respecting mainly the implementation of certain provisions of the Budget Speech of March 26, 2015 (S.Q. 2016, c. 7), widely known as Bill 74. Among many unrelated measures, it added sections 260.33 to 260.37 to the province's Consumer Protection Act.

The mechanism, as described by Dickinson Wright, ran in three steps:

1. Loto-Québec drew up a list of unlicensed online gambling sites.
2. The list went to the provincial regulator, the Régie des alcools, des courses et des jeux, which sent it to internet service providers operating in Quebec.
3. ISPs then had 30 days to block access to the listed sites.

The stated purpose was consumer protection. The law firm's summary also records that the Minister of Finance had estimated the measure could add up to $27 million per year for Espacejeux, Loto-Québec's online gaming site.

Why a province thought it could do this

The starting point is the Criminal Code. Section 207(1)(a) of the Criminal Code lets the government of a province, alone or with another province, conduct and manage a lottery scheme in that province, and the definition of lottery scheme in s. 207(4) reaches games operated on or through a computer. In Quebec, that role is delegated to Loto-Québec, a Crown corporation. Other online gambling aimed at Quebec players is not run under that permission, and the province wanted to cut off access to it at the network level.

The problem was not the goal but the tool. Ordering an internet provider to stop carrying certain websites is regulation of telecommunications, and that is federal ground. The federal rule already existed: s. 36 of the Telecommunications Act reserves to the CRTC the power to approve a carrier controlling the content of what it carries. A provincial list that ISPs had to obey within 30 days left no room for that approval. Notably, the challenge came from the telecom industry, not from the gambling sites on the list.

The court challenge

The Canadian Wireless Telecommunications Association, an association of telecom companies, asked the Superior Court of Quebec to declare the provisions invalid. In parallel, the Public Interest Advocacy Centre went to the federal regulator, the CRTC, which put that application on hold while the courts dealt with the constitutional question.

At trial, Justice Nollet looked at the pith and substance of the provisions, that is, what they were really about. According to McCarthy Tétrault's summary, he found the link to consumer protection "superficial, if not opportunistic" and held that the provisions fell under exclusive federal powers over telecommunications and criminal law. Dickinson Wright notes that the judge also relied on s. 36 of the federal Telecommunications Act, under which a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications unless the CRTC approves otherwise.

The Court of Appeal agreed. In its reasons, summarized by McCarthy Tétrault, the true purpose of the provision was not consumer protection but to let Loto-Québec and the Régie force ISPs to block gambling sites. The court held that federal jurisdiction over telecommunications covers the transmission, reception and retransmission of internet signals, and it accepted that blocking sites only for Quebec users would have significant consequences for ISPs' networks and might be impossible to achieve. It did not find it necessary to rule on the criminal-law point.

Quebec sought leave to appeal to the Supreme Court of Canada on August 4, 2021, as Cartt.ca reported. The Supreme Court docket shows the application was dismissed with costs on March 24, 2022. Dickinson Wright's 2021 note points out that the provisions were never operative.

What the decisions did not say

It is easy to read more into the ruling than is there.

• It did not make offshore gambling legal. The case was about who may order ISPs to block websites. It said nothing to change s. 207 of the Criminal Code or Loto-Québec's role.
• It did not bar every provincial rule touching the internet. The Court of Appeal said, in passing, that federal telecom power cannot defeat valid provincial laws that regulate certain transactions or conduct on the internet, giving aspects of online contracts and defamation as examples. Regulating the internet as a means of communication is federal; regulating content can be provincial.
• It did not rule on freedom of expression in the appeal. The trial judge addressed it; the appeal turned on the division of powers.

What it means for a player in Quebec today

There is no provincial ISP blacklist of gambling sites in Quebec, because the only law that tried to create one was declared invalid and never applied. That is a statement about network blocking, not about which sites are authorized.

Loto-Québec remains the body that conducts and manages gambling in the province. Its online games are presented at lotoquebec.com, where individual game pages still sit on the espacejeux.com domain. A provincial site is the one route where the operator's authority comes straight from s. 207(1)(a).

For a practical view of what is available, see our Quebec casino guide and the Canada-wide list. If gambling is causing problems, Quebec's helpline Jeu : aide et référence is free, confidential and open 24/7: 514 527-0140 in the Montreal area and 1 800 461-0140 elsewhere in Quebec. More options are on our responsible gaming page.

This is a summary of public court decisions and commentary, not legal advice.