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Criminal Code

Bill to Amend--Third Reading--Debate

June 17, 2021

Hon. Peter Harder [ + ]

Honourable senators, five short years from now soccer fans from around the world will stream into Canada carrying their countries’ hopes in a sporting event only second to the Olympics in popularity. The FIFA World Cup of soccer, which Canada will jointly host with the United States and Mexico in 2026, will be a showpiece for our country as it has been for other hosts. It has also generated billions of dollars in economic output for previous host nations. As we all know, money can also attract unscrupulous actors who exploit events through cheating and, in the case of sports, manipulating the games themselves. What a shame it would be if something like this were to mar the World Cup here in Canada. It is, however, a possibility that experts say we must work to avoid.

It has relevance for the bill we are debating today, which would allow Canadians to bet single-game sports. Let me begin by saying that I support the intent of this bill. I believe it is in some sense inevitable, given that Canadian betting dollars are and will be moving to other jurisdictions that are more advanced than ours on issues involving sports betting.

It is also a measure that, if done probably, will aid many sporting organizations across our country, and they need help. But I do have some concerns, chief among them the prospect of match fixing. In a white paper produced in October 2019 by a national symposium on the subject, authors warned that rapid changes in technology and growing popularity of online gambling platforms present an increased threat of match manipulation in Canada. Further, attempts to corrupt athletes are on the rise. The white paper stated, “This threat has the potential to cause severe damage to the integrity of Canada’s most beloved sports.” Hockey to the Canadian Football League, as well as many other sports, were identified as being at risk.

It goes on to say:

With Canada’s co-hosting of the United 2026 FIFA World Cup, it is urgent for government to address this issue or risk reputational damage.

That would be commensurate with the Ben Johnson saga. Furthermore:

While Canada is now regarded as a leader in the global anti-doping movement, we must now take a more proactive stance regarding match manipulation.

Ben Johnson, as you may recall, was the Canadian sprinter caught using banned substances during the 1988 Seoul Olympic Games. It took us a long time to recover from the hits taken to our reputation for fair play. As mentioned, I believe in the intent of this bill, but I would add two cautions.

First, the bill should require agreements between the provincial gaming bodies and the various sporting organizations allowing for the use of the organizations’ matches in the betting scheme.

Second, we must eventually deal with the aforementioned match fixing. While the fixing of matches of big-league sports often grab large headlines, in many ways it is in the lower leagues and among those who receive the least pay where the practice is more acute and more at risk.

We have all, for example, read accounts of the needy college athlete, particularly in the United States, who receives no compensation for taking part in sports competitions and is eventually bribed to provide tips about a team’s strategy or to blow a game. These are not behaviours distinct to our neighbours. It happens here too.

In 2015, for instance, it was revealed by a report in a British newspaper that each of the 12 teams comprising the Canadian Soccer League had been involved in some sort of match fixing on at least three occasions. In another story, the CBC reported in 2012 that a player in the same league accepted a bribe to fix a match in 2009.

These sorts of actions lead to a feeling of betrayal among sports supporters. If single-game betting is allowed without the issue of match manipulation being addressed, it also risks dissuading individuals who want to lay bets in the first place. Why bother if you can’t trust that the dice aren’t loaded?

Unlike the United States, Canada currently allows only for parlay betting, under which bettors must pick two or more winners to collect on the win. In single-game betting, the player only has to bet on one game, meaning a fixer has to successfully manipulate only one game or one portion of a game.

Sports integrity experts offer many ways in which potential abuses can be dealt with, including the call for the establishment of a federal commission; better education for athletes, coaches, officials and sporting organizations; and the creation of an independent sport integrity unit for Canada.

Another recommendation of the symposium cited earlier is that Canada become a signatory to the Council of Europe Convention on the Manipulation of Sports Competitions. This, I believe, is a measure we should support.

The aim of this multilateral treaty is simple. It is to prevent, detect and punish match fixing. It is a key tool and guide which provides a structure that allows signatories to better align efforts and coordinate their actions to combat match manipulation. These acts include coordination between international activities and projects; assistance and consultancy to public authorities; and thematic debates related to governments, gaming and lottery officials, law enforcement and sporting organizations and others. It has been signed and/or ratified by 37 countries, but not Canada.

Given the need to protect Canada’s integrity as a sporting nation, as well as citizens who will take part in this new activity, I would strongly agree with the observation put forward by the Standing Senate Committee on Banking, Trade and Commerce that the government be encouraged to sign the Council of Europe Convention on the Manipulation of Sports Competitions. I thank Senators Klyne and Cotter for ensuring that such observations are strongly made in the report from the committee that is before this chamber. I speak tonight to underscore this observation in the hopes that the government will act on it upon the Royal Assent of this legislation.

Thank you.

Honourable senators, I rise to speak to Bill C-218, the safe and regulated sports betting act. This is a topic that has been on my mind since similar legislation was introduced all the way back in 2011. There has been momentum building toward it ever since, and while I know there are some challenges, I will speak today on why I’ve come to support this legislation.

I have closely observed this bill in committee, made note of the observations and heard from a number of athletes, sports organizations and stakeholders that this bill would impact.

We have heard today much of the data; that this is a $14 billion industry in Canada that is unregulated and unsupervised through offshore betting and criminal gangs. There is no protection for the consumer, no support for those with a gambling addiction and, of course, there is no benefit to the Canadian economy.

A past friend and colleague of mine, Paul Melia, appeared at the Justice Committee in the other place while studying this legislation. He serves as President and CEO of the Canadian Centre for Ethics in Sport. Here’s what he had to say on this bill:

I think the legislation provides an opportunity to provide greater services and support to those who may become addicted to gambling than the current system, where we have an unregulated market and where it’s going on. We’re not really aware of how much is going on, who may be addicted and who might be harmed, so I think there’s an opportunity to provide the appropriate services.

Colleagues, we must also recognize the change brought about to bear on this industry through smartphones and ever-expanding internet access. In 2011, when similar legislation was introduced, I could not have imagined supporting this legislation, yet here we are 10 years later, and the fact is that anyone with access to a phone and a cellular system can place a bet on sporting events anywhere and that is exactly what is happening.

As I worked through this legislation, I was reminded of the work we did on the cannabis bill. The fact is that whether we wanted it or not, people were participating in this market. No amount of criminalization was going to stop that, so instead, we brought it into the open. Businesses were created, innovations entered the market. Most importantly, we could be honest about the harms associated with it and address them out in the open.

Mental health and addiction issues I do not take lightly. This is a big issue that we must dig into and respond to. Senators, on such matters, and I think we heard it said earlier today by Senator Plett, I do believe that sunshine is the best disinfectant, and that by bringing the gambling industry into the light of day, we can combat some of the harms associated with it.

Over the course of the debate on this legislation, I have also been reminded about legal jurisdiction and the parallel structures that govern Canadians. I have listened to Indigenous viewpoints with respect to their differing concerns and wishes. Through such discussion, I am now much clearer on the important role that the provinces and territories will play if this legislation comes to pass. I am hopeful that the provinces and territories will work with First Nations to assure that it will be implemented in an equitable and safe way.

There are concerns over the integrity of sport and match fixing, at times also called competition manipulation. Over the past 20 years, I directly observed the action and intent of match manipulation and betting and gambling in amateur sport. Yes, young people sometimes knowingly or unknowingly are targeted to participate in some aspect of this all over the world.

I will never forget the shame, shock and embarrassment resulting from match fixing in my sport at the 2012 Olympic Games. While the world watched live on television and online, four women’s doubles teams, that is eight athletes, were disqualified from the London Olympic Games after deliberately losing a match to gain advantage in the future medals round. It was a very low moment that is rare, but not that rare, at the Olympic Games.

Different countries have different laws which can also result in terrible results. By the way, betting has been around since the very ancient Olympics in Greece. Over the years, I have been developing an education program that highlights regulations with respect to betting restrictions and match manipulation. The education of athletes in understanding corruption and corruption offences continues to be critical. In this work, we have defined four areas of corruption: first, best effort; second, betting, a grab-all term for soliciting, facilitating and offering; third, inside information; and fourth, reporting.

The International Olympic Committee now has an Olympic Movement Unit that is dedicated to the prevention of manipulation of competitions. Shortly before the pandemic, I hosted a world championship in Markham, Ontario. Athletes from 60 countries had to participate in an integrity program before they stepped on the field of play. They needed to understand the issues related to doping and match manipulation before they started competition.

I share this with you today because single-sports betting and match and/or competition manipulation has many tentacles that must be first supported by the right legislation and regulations. This sharing is also a representation of the fact that it is not just professional sport that wishes this legislation to move forward, it is also amateur sport. It is in the best interests of all of our athletes, even the sometimes forgotten ones.

Colleagues, I’m able to look at this legislation through the lens of the athlete, spectator, educator and builder. I have directly observed serious out-of-control betting and match fixing that has hurt Canadians while competing on the other side of the world.

As far as athletes are concerned, like all segments of society, our Canadian sports leagues have been decimated by the pandemic. Athletes will return, but they will need spectators and interest to even get close to the level they were before the pandemic hit. I believe this bill will help.

From the view of those placing bets, by removing one line from the Criminal Code, we can provide the much-needed support to provinces and territories to move forward and support so much in the communities that are already affected by the incredibly active illicit gambling industry. We are also behind the rest of the world on this, and it’s time to catch up and get ahead of the curve.

Thank you. Meegwetch.

The Hon. the Speaker [ + ]

On debate, Senator McCallum.

Senator McCallum, before you begin, I must apologize in advance that at 9 p.m. I will have to interrupt you.

Hon. Mary Jane McCallum [ + ]

Honourable senators, I rise today to speak to Bill C-218 and to voice the legitimate concerns that have been raised by the Mohawks of Kahnawake. In doing so, I will also be bringing forward an amendment on their behalf, which I will explain in detail below.

Over the past 25 years, Kahnawake has built a successful gaming industry within its territory. They have created revenue that has been used for essential services in their community, most notably, organizations whose mandate is to support language and culture in Kahnawake.

The profits from Mohawk Online, an online gaming venture wholly owned by the Mohawk Council of Kahnawà:ke, have helped Kahnawake during the COVID-19 pandemic. To date, Mohawk Online has contributed $4 million to the Kahnawake Economic Relief Measures Fund.

Gaming in Kahnawake has created opportunities — not just for their own people but for those in surrounding communities.

Kahnawake’s gaming industry is subject to a robust regulatory regime established by the Kahnawake Gaming Commission, known and replicated worldwide.

In a July 2020 meeting with the late grand chief Joe Norton, Minister Lametti complimented Kahnawake on having created a “legitimate gaming architecture that makes Kahnawake world leaders — and it is worth supporting.”

Kahnawake did all of this on the strength of their own jurisdiction, their own resources and their own ingenuity. It is a perfect example of what our Governor General once referred to as “Indigenous genius.”

Kahnawake’s gaming industry is a shining example of an Indigenous community using its own efforts to create economic sustainability. This is something that should also be encouraged and supported by the Government of Canada.

Honourable senators, Mohawk people have engaged in gaming and sports betting since time immemorial. Games of chance and wagering on sporting events, such as lacrosse, are an integral part of the Mohawk culture. Gaming features in Mohawk creation stories and have always been integral to Mohawk culture and to Mohawk relationships with other nations.

For 25 years, the Mohawks of Kahnawake have asserted an “Aboriginal right” — an inherent Indigenous right that is reconcilable with section 35(1) of the Constitution Act, 1982 — to conduct, facilitate and regulate gaming and gaming-related activities within and from the Mohawk Territory of Kahnawake.

Kahnawake has compiled historical evidence and legal opinions that fully support the assertion of its Indigenous right. In 25 years, their position has never been challenged by any governmental agency or authority.

The amendments to the Criminal Code, as they are presently set out in Bill C-218, do not reflect the Mohawks of Kahnawake’s right and threaten the continued economic resilience of their community.

Bill C-218 will amend section 207(4) to remove the prohibition against single-event sports wagering for provinces, but without recognizing Indigenous governments operating legitimate, regulated, well-established gaming on sports events — and in particular, those Indigenous governments that do so on the strength of an Aboriginal right.

Kahnawake takes no issue with the code being amended to allow for this new gaming activity. Kahnawake does, however, take issue with Parliament’s ongoing failure to amend the code to reflect and accommodate the Aboriginal right held by Indigenous communities.

Kahnawake has tried to work with the House and the Senate on Bill C-218. Chiefs from the Mohawk Council of Kahnawake gave a presentation to the House standing committee and to the Senate standing committee and proposed specific language for additional amendments. Their proposed amendments were ignored by the House standing committee, although that committee did agree to add an amendment proposed by the horse-racing industry. It is easy to see how Kahnawake would conclude that, for the House standing committee, horses were more important than Indigenous peoples.

Chief Gina Deer and Chief Ross Montour also submitted Kahnawake’s proposed amendments to the Senate standing committee. Their request for amendments to Bill C-218 were again ignored.

The proposed amendment, which I am now bringing forward on their behalf, will address the injustice the Government of Canada created when, in 1985, it sold the authority to “conduct and manage” gaming to the provinces — without consulting with or considering the interests of Indigenous peoples. The proposed amendment would allow Kahnawake and other Indigenous communities to negotiate their own agreements directly with Canada.

Existing agreements between First Nations and many of the provinces are accomplished through the provisions in section 207(1)(a) and (b) of the Criminal Code. These provisions would remain in place. The proposed amendments simply give Indigenous communities — which historically have been ignored and excluded from the industry at the provincial level — another avenue to negotiate an agreement for gaming and betting.

Kahnawake’s proposed amendments are a perfect example of reconciliation and accommodation in action. It is more than a little ironic that the initiative for this gesture of reconciliation and accommodations comes from a First Nation, not from the Government of Canada.

Honourable senators, advocates of Bill C-218 in its present form often say the bill simply “levels the playing field” by giving provincial lotteries access to the single-event sports wagering market. They insinuate that Kahnawake is objecting to the bill because it wants to preserve its “monopoly” over this market.

These suggestions are false. Bill C-218 will certainly change the playing field, but it will not be level. Why?

The provinces and their agencies restrict any legal interpretation of Kahnawake’s activities to the Criminal Code. They use the fact that Kahnawake’s rights have never been formally recognized to cast doubt over the legitimacy of Kahnawake’s endeavours.

Kahnawake can cite numerous occasions over the past 25 years when provincial lotteries have deliberately interfered with Kahnawake’s ability to forge commercial relationships. Without a formal recognition of its jurisdiction under federal law, provinces will continue to block Kahnawake from routes to market and customers — marginalizing and undermining Kahnawake’s industry.

In a word, without an accommodation in Bill C-218, there will be no “level playing field.” Provincial lotteries will be given free rein to occupy the field, to the exclusion of Kahnawake.

Colleagues, there are those who have suggested that Kahnawake “just keep doing what they have been doing for 25 years.” This suggestion is cynical and disingenuous. Kahnawake has laboured under the cloud of those who have suggested that they have no jurisdiction over gaming and that their gaming operations are “illegal.”

How does it make any sense to suggest that Kahnawake simply continue to operate under this sort of vicious and unfounded stigma? Kahnawake has come to the House and to the Senate with a proposal that would remove that stigma and accommodate their jurisdiction through an agreement or arrangement with Canada. Isn’t that what we want to see?

Over the past 25 years, Kahnawake has built a successful socio-economic gaming industry, despite having the dark cloud of legal uncertainty hanging over their heads. Imagine what this community — and many other Indigenous communities in Canada — could do if that cloud were to be lifted.

Honourable senators, some of you have suggested that Canada has no role in gaming — that it is a “provincial matter” and therefore “outside federal jurisdiction.” This is not correct.

The Supreme Court of Canada has held that gaming is a matter that falls within the “dual aspect” doctrine. Accordingly, gaming can be subject to legislation by both the federal and provincial governments. Parliament has jurisdiction to legislate regarding the criminal aspect of gaming, and the provincial legislatures have the jurisdiction to regulate the property and civil rights aspects of gaming.

In fact, until it sold the authority to “conduct and regulate” gaming to the provinces —

The Hon. the Speaker [ + ]

Excuse me, Senator McCallum, I’m sorry for interrupting you.

Hon. Yuen Pau Woo [ + ]

I would like to ask this chamber to give leave to allow Senator McCallum to finish her speech.

The Hon. the Speaker [ + ]

Senator Woo is asking for leave for Senator McCallum to finish her speech. Anybody opposed, please say “no.” Agreed.

Senator McCallum [ + ]

It is cynical and disingenuous for Canada to say we sold the authority over gaming to the provinces in 1985 and now there’s nothing we can do.

We as senators must recognize the errors of the past and do our best to correct them. Why are we even considering the approval of a bill that will destroy the economy of one of Canada’s largest First Nations when a simple solution has been provided to us? We have a chance here to embrace Kahnawà:ke and other Indigenous communities under the law, but if we do not include the proposed amendment we are instead choosing to push them away, forcing them to remain in a legal no-man’s land.

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