Criminal Code
Bill to Amend--Third Reading--Motion in Amendment Negatived
June 21, 2021
Honourable senators, as an independent senator from Manitoba, Treaty 1 territory and the homeland of the Métis Nation, I supported the amendment proposed by Senator White and I support this amendment. I commend Senator McCallum for bringing it forward, and I will stand with her if she requests a standing vote. This is reasonable in addressing the concerns of First Nations peoples who are seeking an even playing field in keeping with their rights under section 35 of the Constitution, and in keeping with the established practice of the current government through the Ministers of Crown-Indigenous Relations and Indigenous Services Canada.
If ever there was a single day when we can be attentive to the sovereignty of First Nations, it would be today. I approach this present debate using the lens we recently employed in our deliberations before adopting Bill C-15 last week to incorporate the UN Declaration on the Rights of Indigenous Peoples in the Canadian legal system. I note that this approach was shared by senators who voted for and against this historic bill.
Senator Plett, in debate on Bill C-15, questioned whether the cause of reconciliation is better served by accusations against anyone who happens to disagree with the echo chamber, or is reconciliation actually furthered by dialogue and respect?
This reminder serves us well in the context of the private member’s bill before us. Could we please pause? Today, the echo chamber is the push to pass this private member’s bill, facilitated by the government, for reasons that are less than clear, without duly considering its impact on First Nations. To echo Senator Woo from earlier debate on another bill, either we fix the bill or send it back. We should not be rushed.
We have spoken at length regarding reconciliation. This bill presents us with an opportunity to act. First Nations spokespeople have voiced displeasure that their views were not heard, some noting that the interests of horse racing — considered federal jurisdiction, as are Indigenous and Crown relations — were prioritized. Proponents of this bill have described it as simple, a small amendment to section 207(4)(b) of the Criminal Code. That may well be so, but then so too is this amendment simple. All it seeks is to add a clause that recognizes the right of First Nations to negotiate directly with the federal government, nation to nation.
Let’s bear in mind that First Nations were not consulted or included in the agreement, nor were they mentioned in the subsequent amendments to the Criminal Code. Arguably, the failure to consult and accommodate First Nations regarding the 1985 amendments to the code was a breach of the fiduciary duty that Canada owes to First Nations.
What really is the primary purpose of this bill? We have been told it’s to stop criminal activity and the diversion of funds, to provide Canadian gamblers what they apparently want and to provide new revenue streams for provinces in desperate straits, but this amendment does not affect those outcomes. In fact, this amendment supports and increases the overall odds of success. By passing this amendment, the purpose of Bill C-218 is no way frustrated in that no Canadian would be denied their right to bet, provinces would still generate revenue through their gaming corporations and illegal activity would still be redirected to legal outlets. The good news is that this amendment would add to those goals by enabling a framework for First Nations to exercise their right to self-government, provide them the legal recognition to operate without the accusation of a grey market entity and widen capacity to control economic development for the benefit of the members of their respective territories.
This amendment ensures that First Nations can enter into negotiations with third-party companies with the same standing as other domestic or foreign companies. First Nations have already reported false communications and fearmongering that portray their gaming authorities as illegitimate. We know that the Criminal Code amendment in 1985 does not include First Nations and the delegation of authority. A 2020 report issued by the Fraser Institute concluded that the federal government’s transfer of jurisdiction over gambling to the provinces is proving to be a limiting factor for First Nations, as it “. . . endowed the provinces with superior legislative authority, which they have used to limit the role of First Nations.”
Recently, an open letter from the Mohawk Council of Kahnawake provided examples of how certain provincial governments have increased efforts to stigmatize and marginalize First Nations gaming rights in communications to third-party companies and businesses.
Perhaps of greater concern is the evidence of provinces moving against First Nations with all their legislative and, at times, militaristic might. In June 2014, Sand Hills Casino, owned equally by 64 First Nations in Manitoba, opened its doors. But a few years later, a $1 billion civil action was commenced by the Assembly of Manitoba Chiefs against the Government of Manitoba and the Manitoba Liquor & Lotteries Corporation. The ongoing lawsuit alleges breaches of contract, breaches of fiduciary duty, breaches of the duty to consult and negligent misrepresentation in relation to gaming.
Senator McCallum’s amendment can redress the omission of First Nations. Is this not a concrete and achievable act of reconciliation? Will we knowingly and willfully miss this opportunity?
To those who argue that such an amendment is not at all needed, consider that Bill C-218 will remove single-match gambling prohibitions for provinces, but without recognizing Indigenous governments it will further entrench the material disadvantage that many Indigenous councils face.
Further, without this amendment, Bill C-218 does not give First Nations a clear path to exercise their rights. Silence in this bill may lead third parties to be even more hesitant to partner with Indigenous-owned and operated sports betting platforms.
As Chief Gina Deer of the Mohawk Council of Kahnawake said to senators:
. . . laws are constantly created to shut us out of industries that are very lucrative. . . . It makes it very difficult to believe in true reconciliation and righting the wrongs of the past.
Kahnawake in Quebec is recognized as a global leader in regulation.
Colleagues, perhaps there is a parallel with the Nova Scotia fishing dispute. Although First Nation fishers have the right to fish for a moderate living, Parliament has never officially recognized that right by statute, and the right is therefore questioned and often disrespected. This has led to violence and extensive economic harms.
To those who argue that this is a provincial issue, this bill is about the federal Criminal Code — an inherent federal jurisdiction. The Supreme Court in the Furtney case held that gambling could be regulated jointly by the federal and provincial governments acting under different heads of power. The provinces, which own and derive revenue from casinos and gaming, must navigate an intrinsic conflict of interest. Provincial jurisdiction over First Nations gaming is not a matter of a constitutional right; it is a result of a legislative transfer that can be modified by Parliament and can be addressed in this amendment.
To those who argue that this is simply a provincial issue in Quebec, you’re wrong. There are hundreds of Indigenous groups and councils across the country whose right to self-governance will be impacted by this legislation.
As Senator Cotter has advised, a good model can be found in Saskatchewan’s province-wide Aboriginal authority that manages this level of negotiation. This is commendable, but not found across every province, nor is it desired uniformly by First Nations.
Senator Cotter counselled us to “have some faith in the provinces to get this right.” Unfortunately, I don’t think good faith is enough. In his comments, he referenced a police raid on the First Nations Bear Claw Casino, stating that:
. . . the RCMP came in and shut down the casino and took custody of all the gaming equipment and cash at the casino.
He said that the RCMP handled this raid with as great care as possible.
However, Chief Bernard Sheppard recounts his own eyewitness version of events, wherein SWAT troops in balaclavas, armed with assault rifles, helicopters, road blockades and police dogs descended on the casino. As the police did not identify themselves, employees believed it was an armed robbery. Chief Shepherd described the destruction of gaming tables and equipment, gaming boxes smashed and upturned, laughter from officers as they confiscated equipment in a semi-trailer.
I am distraught that Senator Cotter’s personal safety was imperiled during that crisis. His leadership role in resolving the issue to the benefit of both province and SIGA is to be commended. However, the heavy-handed actions taken by law enforcement are too often the norm, not the exception, and make it difficult to fully entrust faith in the provincial ability to deal fairly and equitably. This amendment allows First Nations to carve out a level playing field.
As a Manitoba senator, with a former jockey for a sister, I welcome the protective amendment in favour of Canada’s horse-racing industry, but are we not, in fact, signalling a preference for rich horse owners over Indigenous peoples, as some have described it?
In his Bill C-15 speech on June 15, Senator Plett quoted Shannon Joseph, who observed that ambiguous legislation renders investment difficult. In fact, it pushes investment away due to fears over uncertainty.
Senators are not those arguments equally applicable to the First Nation’s exclusion in Bill C-218?
I recognize there is considerable pressure to move this legislation. As Senator Dagenais stated eloquently:
. . . I would hope that partisanship and the rush to blindly accept legislation from the other place will not be impediments to improving this bill, in the spirit that should always guide a responsible federal government.
The Law Commission of Canada argued that Canadian criminal law has been used to consolidate provincial authority over gambling as a revenue-raising instrument, and to expand its availability rather than restrict it in any meaningful sense. Are we rushing this because we are beholden to big professional teams without knowing for sure? Our lobbying law has the convenient loophole decried by past and current lobbying commissioners that companies don’t have to register in-house lobbying contacts if they keep them to under 20% of an employee’s time. How much time do a few strategically placed phone calls take?
The Canadian Football League Commissioner advised senators that legalized sports betting was a huge opportunity and indicated they would be ready to go by Labour Day, if not earlier. The BC Lottery Corporation indicated a readiness almost immediately.
We can’t close that loophole at this point, but we can make Bill C-218 fairer to First Nations in Canada. I urge you to vote in favour of this amendment. It is the right thing to do. If it requires the bill to return to the other place, so be it. We’re beholden to the responsibility to provide sober second thought, not to the gaming calendar of the day. Hopefully, we all heard member of Parliament Mumilaaq Qaqqaq’s blunt appraisal that without action, reconciliation is just a hollow word. This amendment is a tangible, actionable and simple way to live up to our collective word.
Thank you. Meegwetch.
Honourable senators, it’s good to see us again discussing Bill C-218. I will now speak to the amendment that has been brought forward by Senator McCallum.
Although the amendment brought forward focuses specifically on Indigenous rights, I would argue that the concerns raised have been typical of what we have seen throughout the process of moving Bill C-218 forward.
In looking at the witnesses and briefs presented in the other place, we saw 29 briefs and 32 witnesses who appeared. Of the 29 briefs, we saw two First Nations who provided those briefs, and both recommended changes to the legislation, either in the form of an amendment or in the delay of implementation to ensure provinces and territories engage with First Nations to include their interests in the implementation.
The remainder of the 27 witnesses included one from the Canadian Centre for Ethics in Sport, who made a number of recommendations which were significantly ignored, including recommendations for changes in the Criminal Code regarding match manipulation, and one presentation from the Responsible Gambling Council identifying the need for work in relation to mental health and gambling.
While I can get the point of a need to consider changes to the Criminal Code of Canada regarding single-event sports betting, the concern we should have, and I would argue should focus on, is whether or not the other place — and in their absence, we — have completed a thorough review of this proposed but not yet passed legislation.
As I said in my second reading speech, this piece of legislation has many tentacles that could have and should have been looked at more closely. While I have spoken earlier about match fixing and my opinion on that area, I will not speak to it today. However, we could speak to areas such as mental illness and the impact micro-betting will have on gamblers, the tools used by online gambling infrastructure to ensure a gambler’s continued betting, ethics in sports. I could go on, but I want and I’m expected to focus on the amendment brought forward.
In 2019, the Assembly of First Nations requested the Government of Canada look at section 207 of the Criminal Code, the same section we’re looking at here today. The difference is that they were asking the Government of Canada to amend the Criminal Code to include First Nations in the provisions of the code pertaining to gambling. In essence, the code today prohibits casinos on Indigenous lands, for example, unless they are sanctioned by the province. First Nations leaders want to build more casinos, seeing the gambling industry as a road to prosperity for impoverished communities with few natural resources.
To quote the Assembly of First Nations National Chief Perry Bellegarde:
It’s all about recognizing and respecting First Nations jurisdiction . . . . We have to make this one of the items on all party platforms: respecting First Nations jurisdiction. It’s about creating really good paying jobs for all people, not just First Nations peoples — and it’s another avenue to creating economic stability.
Gaming has a huge impact on the economy. There is only one economy, and First Nations people have got to be part of that economy in a meaningful and substantive way, and this is just one of the pieces in the puzzle. Looking at Criminal Code amendments just makes good economic sense.
We have heard that a lot in the last couple of weeks.
As the Government of Canada was refusing to open Criminal Code section 207 for economic reasons in relation to First Nations in Canada, they are now agreeing to open that very section of the Criminal Code for provinces, territories and, of course, those who have the most to gain off the advent of single-event betting: big corporations, the Canadian Gaming Association and others.
In fact, in the other place, the only amendment that came about as a result of the 29 briefs and 32 witnesses was directly linked to harness racing in Canada. Not an insignificant issue, and I agree fully with the amendment, but what about the argument First Nation leaders have made for years and are continuing to make? What about the argument the AFN made to the Government of Canada in 2019 and First Nations again made in the other place and here? Is that not important as well?
I have been trying to figure out why the government did not run with their own bill as planned. They brought it forward around the same time. They will argue that Bill C-218 was a step ahead in the parliamentary process, but was it for that reason or because the government did not want to deal with the myriad of issues that must be considered before such a bill passes, in particular in relation to today’s discussion relating to the issues of equitable access to lotteries and gaming, argued by the national chief of the AFN in 2019 and other First Nation leaders today?
The sponsoring critic might argue the agreements and changes should take place between provinces and First Nations. That’s a good argument. After all, that’s exactly what the Criminal Code states, in essence:
for the government of a province, either alone or in conjunction with the government of another province, to conduct and manage a lottery scheme in that province . . ..
It goes on it say that a province or group of provinces operating can work together.
So it appears that First Nations can — if a province wishes to allow them to do so — operate a gaming enterprise. If they wish. Since when do First Nations rights come in this manner, a wish?
In the past few months and for years before, we have spoken about the importance of UNDRIP. Now, at the first opportunity to show what we said, we meant, and we meant what we said, I would argue if we do not make substantive changes to this bill regarding the demands of the AFN in 2019 and now other First Nations, then we are ignoring that work.
I do not believe we have given thought to a number of areas raised, like my friend Senator Simons who raised micro-betting and the issues of addiction that come with this, or the issues Senator Batters raised to the sponsor on second reading regarding mental illness, or the issues raised by experts in Ethics in Sport.
Clearly, my issue with the bill is we have not done our job; the job the public expects us to do. They expect us to break down and build up a piece of legislation to make certain we consider the very issues that have been raised. Right now, it is about First Nations’ rights. If we agree that Indigenous governments and peoples have a right to engage in the pursuit of their own economic opportunities — those same opportunities granted to other governments under federal legislation and found in section 207 under “Permitted lotteries” — then we have an opportunity, on National Indigenous Peoples Day, at the very first opportunity following the passing of the UNDRP legislation, to do the right thing and accept the amendment as presented. Thank you.
Senator Batters, do you have a question?
I do. Senator White, the last time we dealt with this bill, Senator Cotter referred to a legal opinion he commissioned on your proposed amendment. I only received that legal opinion this weekend, unfortunately after the fact. I note that in that legal opinion, the author, who is a criminal law professor, states he views the major:
. . . detriment to the criminal justice system from match-fixing offence is that this could lead police to lay two different charges for the same facts and that this should be avoided.
That argument wasn’t mentioned by Senator Cotter last week. However, Senator White, my experience in practising law — I’m sure you would concur in your decades of policing — is that the police lay more than one charge on the same fact pattern every single day. An example is “0.08” and “impaired driving” and another example is “fraud” and “theft.” Would you agree that is a common occurrence? I do wish that we would have seen that legal opinion earlier.
Thank you very much for the question. In fact, I wish I had seen it earlier. I could have spoken to it in the last session here in relation to match fixing. In fact, in the one case that was presented by the critic in committee hearings, two charges were laid for the same offence: “cheating at play,” which was decided by the Supreme Court to be sent back, and “fraud.” It’s not uncommon to have multiple charges. I believe that having had the legal opinion ahead of time, we could have had a further discussion and dialogue in relation to whether or not changes in the Criminal Code would have been required.
Honourable senators, I’ll be brief. I support the general sentiment of Senator McCallum’s amendment. Three reservations will cause me to vote against it.
First, the amendment proposes a dramatically expanded framework for the regulation of gaming in general and not just in relation to single-event sports betting, which is the very specific and narrow focus of this bill. Going down this route has widespread ramifications, proposing as it does a substantial amendment to one of our most powerful and far-reaching laws, the Criminal Code. I think this is problematic.
Second, the amendment seeks to embed an aspect of the inherent right of self-government found in section 35 of the Constitution Act in a provision of the code. The route to self-determination is important, but the route is not through a single provision of the Criminal Code dealing with sports betting. This is not the central purpose of the Criminal Code. Last-minute amendments to what I think of as this highly important law need far more careful consideration than this particular amendment.
Third, I’m concerned that any amendment, if adopted at this late date, would delay this bill for an unknown period of time. This bill represents, by any measure, an opportunity for many First Nations in my province — and in other provinces — who support this bill in its present form. In fact, all of the First Nations in Saskatchewan — 74 of them — support this bill.
First Nations in Saskatchewan represent under 20% of the people of the province, yet they receive 50% of the benefits of gaming in the province. They will get an equally proportionate dimension of the benefits this bill presents in terms of jobs and revenue that go back to their communities.
Absent a compelling need to address a serious flaw in the bill, which I do not believe exists, I cannot justify standing in the way of this opportunity to bring jobs and resources to my province, most particularly to First Nations people and communities — an initiative they fully support.
Are honourable senators ready for the question?
If you are opposed to the motion, please say “no.”
Those in favour of the motion, and who are in the Senate Chamber, please say “yea.”
Those opposed in the Senate Chamber, will please say “nay.”
I believe the nays have it.
I see two senators rising, so we will have a standing vote. Is there an agreement on time?
Fifteen minutes. Are senators okay with 15 minutes? The vote will be held at 5:11 p.m.
Call in the senators.