Criminal Code—Indian Act

Honourable senators, this item stands adjourned in the name of the Honourable Senator Martin, and after my intervention today, I ask for leave that it remain adjourned in her name.

Honourable senators, I confess that I was both excited and surprised that I would have the opportunity to speak this evening. I had thought that perhaps we were going from a two-hour dinner break to a one-hour dinner break to two one-hour dinner breaks. Senator Plett had to get back for his dessert, I guess.

I was also a bit surprised when Senator Tannas, knowing that I would be speaking on a bill that he sponsored, voted for the adjournment of the Senate — obviously, in trepidation about what I might say this evening.

However, I was heartened when I saw that Senator MacDonald still had the podium in front of him for his 45-minute speech, and that got me pretty excited.

So here we go. I’ll speak briefly regarding Bill S-268, An Act to amend the Criminal Code and the Indian Act.

In simple language, the bill proposes an amendment to section 207 of the Criminal Code to parallel the authorization of provinces to conduct and manage gaming in their jurisdictions. This would extend this gaming jurisdiction to any First Nation that wishes to take up the opportunity.

I support the bill being referred to committee, presumably to the Legal Committee, so my remarks will mostly focus on what I will identify as eight issues that, in my view, need to be studied with respect to Bill S-268. These remarks constitute what I would call principled reservations regarding the bill rather than opposition reservations that I hope will be studied.

I want to begin by expressing — parenthetically, at least — a general reservation that I and others have about this approach to amending the Criminal Code of Canada, which is essentially piecemeal, rarely with sufficient study or appreciation of the background. We do this a lot in this chamber, always with the best of intentions. However, speaking for myself, it is not a good way to amend one of the most important laws of our country. I will now close the parentheses on this point.

Returning to the main issues: In this place, I think it is possible to speak frankly about proposed laws and existing laws and sometimes reflect adversely on the role that the criminal law plays in some segments of our society. I will do that on this occasion briefly.

What the Criminal Code does in these circumstances is criminalize gaming or lottery schemes unless done in accordance with the provisions of the Criminal Code, and particularly section 207.

I have a fairly good idea about how this works. As a deputy attorney general for the Province of Saskatchewan, I was involved in the negotiations that made authorized First Nations gaming possible pursuant to the powers that had been granted to the provinces with respect to section 207 in the mid-1980s. I served on the board of the first provincial authority, the Saskatchewan Gaming Corporation, which got this off the ground, in a partnered way, with the Federation of Saskatchewan Indian Nations, or FSIN, as it was then known. I’ll come back to this initiative, often thought of as a national model for First Nations gaming.

To be accurate about the Criminal Code — and, more specifically, a component of this — the criminal law of Canada with respect to this matter establishes and regulates monopolies presently granted to provinces to conduct and manage gaming. It’s an odd kind of place to position a monopoly in a Canadian or any jurisdiction. This was achieved through a bargain struck between Ottawa and the provinces in the 1980s essentially to carve up the national gaming market between the two orders of government.

As a matter of basic principle, a bill like this one, which proposes that First Nations get more direct control of gaming — part of the action, so to speak — is not illegitimate. It expands who gets to share the pie, so to speak; it maybe expands the pie — maybe wisely, maybe not.

That said, the 1985 changes were the outcome of careful study and negotiation. I am unaware of anything resembling similar study of the consequences of this bill being implemented — a matter that itself needs careful study, a study which looks like will fall to this chamber.

With respect to these issues, dimensions or reservations, first, what are the economic and fiscal implications of creating a new form of access to gaming?

Second, is there a sound basis, as the preamble asserts, for regarding this new gaming authority as an inherent or treaty right for First Nations?

The preamble of the bill states, in part:

Whereas these Inherent and Treaty rights encompass the right of Indigenous peoples to regulate activities such as gaming, betting and lotteries on their lands;

This, quite frankly, is an overreach. That does not disqualify the initiative by any means — it can still be thought of as good public policy — but we need to be clear and accurate about the foundational basis for this legislative initiative.

While it is far better to work out solutions than to litigate them, I think it is fair to say, at a minimum, that this question of gaming as an inherent or treaty right for First Nations is contested. Indeed, its contestation was an important dimension of bringing the Province of Saskatchewan and the FSIN to the table in the 1990s to work out an arrangement.

But we need to be clear. It is helpful to examine this part of the preamble and compare it to what the Supreme Court of Canada has said. Let me repeat again the preamble:

Whereas these Inherent and Treaty rights encompass the right of Indigenous peoples to regulate activities such as gaming, betting and lotteries . . . .

Here is what the Supreme Court has had to say. In a case called R. v. Pamajewon, the Supreme Court of Canada refused to recognize that there was a section 35(1) right to gaming or to the regulation of gaming, and said it did not exist. The author of that majority decision agreed that commercial gaming was a “twentieth century phenomena” that did not exist among Aboriginal peoples and “was never part of the means by which those societies were traditionally sustained or socialized.”

In 2000, in a case called Lovelace v. Ontario, the Supreme Court stated that in Pamajewon, it had found that gambling and the regulation of gambling were not Aboriginal rights. These positions were once again adopted in 2019 in the Ontario Divisional Court in a case called Wauzhushk Onigum Nation v. Minister of Finance (Ontario). I hope the committee will address this question.

As I say, the fact that the argument for “Inherent or Treaty rights” is not particularly sound doesn’t necessarily justify ignoring this initiative on the basis of good public policy.

Third, an associated question: One unusual clause in the bill provides that when a First Nation gives notice to the federal and provincial government that it intends to establish a gaming regime for the purpose of the gaming provisions of the Criminal Code, this First Nations reserve is deemed not to be part of the province within which it is situated. I have thought long and hard about this provision. I don’t understand the reason for it. Perhaps that will be fully explained in debates here or discussion before committee. There may be a very good reason. However, the idea of deeming a First Nation, for any reason, not to be part of the province in which it is situated seems to me to be a bad precedent.

Fourth, how will questions like market saturation be addressed and by whom? These are strategies that exist in some of the provincial jurisdictions now in the examination of markets. This raises a new question, and who will be the players in its determination?

An associated question: Who will be responsible for responsible gaming initiatives related to these gaming opportunities in order to protect those who might be vulnerable or addicted to gambling given that — in particular in these circumstances — it can be expected that to be economically viable, the on-reserve gaming opportunities created by this bill will have to appeal to people beyond the boundaries of the reserves whether at in-person gaming locations or through online gaming.

Sixth — we’re near the end — there is another associated question: Over time, the regulatory framework for gaming, both First Nations and provincial, has become professional and sophisticated. With gaming jurisdiction diffused, which is one of the things this bill would do, combined with the potential gaming pressure of competing in oversaturated markets, can a professional regulatory model delegated to the very entities faced with these competitive pressures be sustained?

Seventh, what would be the views of the provincial authorities, which will lose a portion of their jurisdiction to regulate gaming in their respective provinces and — they don’t like to be reminded of this — who will likely lose gaming revenues and likely inherit the consequences generated by problem gamblers?

Eighth, are we and the citizens of our respective provinces — Indigenous and non-indigenous alike — comfortable with a move to authorize First Nations to unilaterally establish gaming operations that will deliver all or nearly all of the revenues to specific First Nations near viable gaming markets, moving away from more distributive, communitarian approaches in some jurisdictions, such as my own in Saskatchewan?

Let me expand on this.

In Saskatchewan, there is a bargain between the Federation of Sovereign Indigenous Nations, or FSIN, and the province to share the gaming market and gaming revenues. After some adjustments and local, community-based investment, the FSIN share of the revenues is distributed proportionally among all of the First Nations in the province, whether they are near viable gaming markets or in far more remote parts of the province where a viable gaming operation could never exist. This revenue is available — and it is in the hundreds of thousands of dollars each year for those First Nations — to address the economic and social needs of all of these First Nations beneficiaries.

The model proposed in this bill will have the concentration of revenue in the province reside with those First Nations closest to gaming markets, most able to attract a customer base and investment. These are not necessarily bad things; indeed, they may be good things. However, they are liable to occur at a cost, at least in my province, to the financial supports that now flow to the communities that could never support a gaming initiative on their own. If I may put it this way, it’s a move away from the Saskatchewan model of gaming to the Phoenix model of gaming.

It is true that I need to be personally conscious of a bias in favour of a First Nations gaming model I played a part in designing. If we’re serious about economic reconciliation with First Nations people, nothing should be ruled out, including the opportunities that gaming presents.

Whether what is proposed in this bill is the best approach is, however, in need of careful study by the committee. There may be many more questions. I hope that, upon referral of the bill to committee — which I support — witnesses will be invited who will inform the committee on the questions I have raised and other questions raised by other senators.

Thank you.