Hon. Paula Simons: Senator Gold, as a journalist, I covered some terrible incidents in which terrible crimes were committed by people who had been released on bail, so I understand the emotional and political impetus to speed this bill to passage. However, I am concerned with the speed at which things are moving, because we are dealing with an issue in which people’s fundamental liberties are at stake. As you have so eloquently explained, we have a presumption of innocence in Canada, and we only use reverse-onus provisions in very particular cases, because we have that presumption to be assumed innocent.

Given the state of our remand centres, which are not lovely places to be and are very full, and given the delays in our court system, the Canadian Civil Liberties Association has raised concerns that expanding reverse-onus provisions may lead to people pleading guilty simply to speed along their passage to a less uncomfortable place than remand.

I have two questions. First, what assurances do we have that this will not have knock-on effects to make remand centres even fuller, to cause even more court backlogs and to make people take guilty pleas in order to get out of the limbo of remand? Second, given the pace at which things are moving, will the Legal and Constitutional Affairs Committee be allowed the latitude to conduct a proper and thorough committee study, which was not allowed for in the House?

Hon. Renée Dupuis: Senator Gold, in your speech, you spoke about victims of violence and intimate partners. You spoke about people who have a history of sexual offences and sexual violence.

When you were talking about the organizations that the government consulted when drafting Bill C-48, I heard you say that you consulted the provinces, the territories and a few national Indigenous organizations. Perhaps I misunderstood what you said, but I didn’t hear you mention national associations like the Native Women’s Association of Canada, yet I think we can all agree that, when it comes to intimate partner violence, the victims are often women.

Can you specify which national women’s organizations were consulted on this bill?

Hon. Percy E. Downe: Senator Gold, I share the concern about the rush through the House of Commons and how the legislation will land here after no review at all there. As we all know, the Senate is often criticized, but we’re now put in a position in which what we call “the other place” — the House of Commons — simply did not do its job. They sent the legislation over here without reviewing it. Now it lands in our chamber. Given that, we may need much more time than we normally would because normally, as you know, we check the transcript and the hearings of the other place. We’re really starting from ground zero here. You would agree that we need more time than normal, I assume.

Hon. Pierre J. Dalphond: My question is along the same lines as the previous questions, Senator Gold.

The Senate has a duty to carefully consider all of these bills, especially those that reverse the burden of proof. Wouldn’t you agree that that burden is even greater today? The House of Commons passed this bill without convening a real committee of the whole. There were no submissions or witnesses, and the bill passed in one day.

In that context, shouldn’t we be a little more thorough and take a bit longer than usual to get written submissions from the Canadian Bar Association, the Barreau du Québec, the Association des avocats de la défense and the Canadian Civil Liberties Association, which is quoted in The Globe and Mail today criticizing the fact that it wasn’t consulted and that it didn’t even have time to prepare?

Shouldn’t we take our time on this? If the House of Commons thought this bill was so urgent, it could have passed it before June 22. They passed it the first day they were back in the House. We could have worked on it over the summer.

Hon. Mary Jane McCallum: Senator Gold, I was invited to attend a brunch with the police association and the premiers on bail reform this summer, and I raised a concern at that time. One of the panellists gave an example of an offender who had stolen a bottle of liquor and, 10 years later, he is a hardened criminal is what she said. Because of the way the system is set up, at that time, we were told that 70% of the people in the provincial jails were Indigenous and the majority had not even been to court.

Indigenous relationship with police administration, police officers and the justice system is already precarious. How will racial profiling and racism be addressed? If they are not, there will be a continuous flow of new criminals, and no law will be able to handle the load, even if additional resources are given. An example I’ll use is 80% of the Indigenous prisoners who are in the pen were children who were apprehended. So we need to look at reducing the flow of child apprehension so we don’t have that flow going in, because we’re not going to change the penitentiary system. How will this be addressed?

One comment that came up was people were so upset in there that they said, “Throw them in jail and throw away the key,” which caused me great concern. Thank you.

Hon. Brent Cotter: Senator Gold, thank you for your remarks and for your leadership on an important bill that is being considered by this chamber.

I’m a member of the Legal and Constitutional Affairs Committee, where it seems likely this bill will go, so I’ll have a decent number of opportunities to explore the bill, but I did want to ask one, what I would call, institutional question, in your capacity both as sponsor of the bill and as Leader of the Government in the Senate. You made reference to the five-year review and you used, I thought very carefully, the words “reviewed by Parliament.” But I think as you know, the bill calls for a review by the House of Commons.

I have in front of me here the clause, which is clause 2 of the bill, a review on the fifth anniversary to be carried out by a standing committee of the House of Commons.

This strikes me as not entirely respectful of this portion of Parliament, and in light of your endorsement of the confidence you have in the Senate, which I believe was part of your speech, I wonder if you could speak to what I would call an oversight. I would be interested in your view on that, especially since, as I seem to understand, the House of Commons didn’t study it at all in the first go-round.

Hon. Mary Coyle: Honourable senators, I wasn’t going to ask a question, but because of the question raised by Senator McCallum I’m happy, frankly, to have this discussion we’re having here right now, both about the process and the need for a robust debate on this important bill and a really thorough study.

Senator McCallum raised an issue that sparked in my mind this question and so much of this is based on reverse onus. This is a deviation from how we normally operate in our justice system in Canada. I am concerned about different groups being disproportionately disadvantaged, as they always have been, but even more so — possibly — under this legislation if the onus is on the person to prove that they deserve bail. That can sometimes be an advantage to someone who has the money and resources to hire good legal talent to help them. Because we haven’t had a thorough study yet — hopefully we will — I’m just curious whether the government has looked at this issue of advantage to those with resources in a situation of reverse onus and what the implications of that would be.

Hon. Kim Pate: Honourable senators, there is no doubt that the horrifying and egregious acts of violence that led to this bill are just that. However, they were outliers, and they were not the result of an inability to detain; rather, they were primarily the result of the inadequacies and failures of social, housing, economic and health — especially mental health — systems.

At a time when there are crises of mass incarceration — particularly of Indigenous and Black people, as well as those living in poverty with mental health and addiction-related issues linked to the past trauma of abuse — why is this being offered to Canadians?

Provincial jails are already full, as you have heard, with more than 71% of people who are awaiting trial — the majority of whom are there because they are poor, racialized or dealing with past trauma, addiction and mental health issues.

We know that Indigenous women alone represent 50% of those serving federal sentences. Did you know that they represent upward of 75% to 99% — and sometimes even 100% — of those in provincial custody?

When we look at young women and girls, they represent 95% to 100% of those in jails designated for girls and young women in Saskatchewan, Manitoba and the North.

Meanwhile, are Indigenous and Black communities provided with the resources they need, if we are to redress that overrepresentation? They’re offered a pittance, perhaps. Instead, they — we — are offered this, which puts the burden on specific accused to prove that they should be released from jail.

It also proposes expanding the use of reverse onus in intimate partner violence cases — without any analysis of the likely impact of this in terms of reducing reporting in an already vastly discriminated against, under-represented and underserved group.

Where is the legislation and policy to shore up the very systems that currently keep victims of intimate partner violence at risk? This includes the economic, housing, social and health supports that truly assist women to escape and be safe.

Where is the action on the Calls to Action of the Truth and Reconciliation Commission and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls?

Where are the community-based and educational programs to address attitudes and biases that persist about violence against women, intimate partner violence and poverty?

Who will this bill actually end up jailing?

Let’s look at Indigenous women who have experienced violence: We know that when they are trying to escape violence, if they actually do it without grabbing something to help protect themselves, they are more likely to end up dead, quite frankly, than they are to escape.

These women are not who we think of as being a risk to public safety, yet they will face the greatest barriers in lifting a reverse onus. We see this already in the vast numbers who plead guilty, even when they have self-defence or the defence of others, or even when they are not responsible for the death or harm.

Criminal lawyers are already signalling that people of means may be able to meet the new reverse onus by proposing strict supervision and release conditions that they can self-fund, which will deepen the inequities of the legal system.

They and other groups — who are troubled by the other place’s fast-tracking of Bill C-48 — have underscored that “. . . a wealthy white person is able to displace a reverse onus presumption on bail far more easily than a racialized person from an impoverished background.”

This bill undermines Canada’s commitments to a nation-to-nation relationship, the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls. It insists on recriminalizing those already overrepresented in the criminal legal system, instead of addressing those issues in a meaningful way.

We also face the added reality that there is no evidence to back up the assertions that the bill will have the desired effect on public safety. If it’s anything other than political posturing, why hasn’t it been the subject of proper scrutiny in the other place? The public should be horrified by the willingness of elected officials to bypass the usual process of studying a bill and evidence such as what Canadian crime rates actually are, including violent crime rates, and the fact that they continue to be at historic lows.

The rate of individuals being found guilty of a crime and incarcerated has declined, but, while it has declined, the numbers of people in pretrial detention has more than quadrupled in the last 40 years. Bail decision making in Canada has become more restricted and risk averse over time. The only contribution sending an individual to pretrial detention could make to public safety comes from the removing of that person from the broader community for a period of time, but doesn’t focus on what happens when that person returns to the community without access to the very supports that brought them there in the first place.

The only contribution sending an individual to pretrial detention could make to public safety comes from that removal, and, yet, we’re encouraging the increased reliance on pretrial detention, which will make it more likely that an individual will plead guilty just to be released from jail. This raises more concerns about another bill that we’re waiting to see: that of wrongful convictions and how we address them. Tightening the bail system and increasing reliance on pretrial detention will have discriminatory outcomes and undermine efforts to combat systemic discrimination and the legacies of colonialism.

I would argue, colleagues, that it is irresponsible and undemocratic to race this kind of performative legislation through Parliament. The bill facilitates throwing people, especially Indigenous women, into jail without a trial. The parliamentary process mirrors that of the system that already exists. We should be treating people fairly, not hastily. The government’s position is that the bill will address the public’s concerns related to repeat and violent offending, and offences involving firearms and other weapons. The public needs to be provided with meaningful, substantive and accurate information, a Charter and constitutionally compliant system, based on facts and evidence and free from political interference. That, my friends, is what I hope we will contribute through the Legal Committee and debates in this place. Meegwetch. Thank you.

Some Hon. Senators: Agreed.

Hon. Frances Lankin: Thank you very much. I appreciate all the contributions, and I think that there are important issues for us to delve into. I particularly appreciate you raising not just specifically Indigenous and Black women, but the gender bias within the justice system.

One thing that I have been aware of from working with women’s organizations that work with women who have experienced intimate domestic violence and/or abuse within the home is the change in the attitude of policing that has gone on over a period of time. I would have thought there would be more sensitivity and a better situation, but the statistics I have seen — and from what I have been told — show that there has been a growth in the number of times in which a woman defending herself will be, in fact, charged and arrested.

I wonder if you have any other specific or general information about that. In particular, at the Legal and Constitutional Committee, I hope that in the study this will be one of the second reading concerns that have been raised that you will look into. You alluded to this in terms of speaking about the added difficulty that women face in these circumstances in having to meet the reverse onus, so I hope that you would undertake to examine that part of it, too.

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

Hon. Leo Housakos: Honourable senators, I note that this item is on day 15, and I am not ready to speak at this time. Therefore, with leave of the Senate and notwithstanding rule 4-15(3), I move the adjournment of the debate for the balance of my time.

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Gold, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)

Hon Senators: Agreed.

(Debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Deacon (Ontario), seconded by the Honourable Senator Busson, for the second reading of Bill S-269, An Act respecting a national framework on advertising for sports betting.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of September 20, 2023, moved:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, September 26, 2023, at 2 p.m.

The Hon. the Speaker pro tempore: Is leave granted, honourable senators?

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I note that this item is at day 15, and I am not ready to speak at this time. Therefore, with leave of the Senate and notwithstanding rule 4-15(3), I move the adjournment of the debate for the balance of my time.

Hon. Brent Cotter: Honourable senators, I rise to speak to Bill S-269. Senator Woo was kind enough to point out to me that the live audience for this speech has dwindled to three, but I’m especially pleased that they have hung in here for it.

Two days ago, Senator Marty Deacon laid out the motivation for this bill and the direction it proposes for the regulation of the advertising and promotion of sports betting in Canada. She also spoke extensively about the structure of the bill and its intended objectives. I wish to lend my support to the bill and fully endorse her remarks.

In the interest of trying to make my own comments useful, I will divide my remarks into three parts. To add a bit of spice, maybe for Senator Dalphond, I will try my best to keep your interest by giving each section of my remarks a catchy title.

The first section, reflecting on how we got here initially, is entitled, “How I may have committed crimes before coming to the Senate.” The second section is entitled, somewhat enigmatically, “The elephant,” and the third section is entitled, “What do we do when we come to a fork in the road?”

Here goes — “How I may have committed crimes before coming to the Senate.” I’m kind of hopeful that parliamentary privilege applies to these remarks.

For over a decade before I came to the Senate, I used to teach a course at the law school in Saskatoon and sometimes at Dalhousie University in Halifax entitled, “Sports and the Law.” Students in this course wrote major research papers, and nearly every year, someone opted to write a paper on sports betting and the criminal law of Canada. What I learned from those papers was a bit troubling.

When I’m in Saskatoon on Sunday evenings, we commonly have family dinners. My various nephews attend, and it was not uncommon for family members, including me, to discuss various sports teams and the likely outcomes of the games, prospectively. The purpose of these discussions was for them to make judgments on the teams that they would bet on in those games. Well, what I learned from reading my students’ sports betting papers, at least up until 2021, was this: My nephews were betting on sports games individually and, in doing so, were committing criminal offences. It could be argued, I guess, that my discussing it with them and offering my relatively uninformed opinions amounted to aiding and abetting these crimes — essentially, if I may say so, aiding and abetting betting.

It struck me in those years — and as the motivation of my support for Bill C-218, sponsored in 2021 in this chamber by Senator Wells and passed in that year — that while you might disapprove of betting in any form, it hardly rises to the level of committing a criminal offence to bet on a single sports outcome. Indeed, until the adoption of that bill in 2021, we had the unbelievably incongruous situation where if you bet on three games at once, you were engaged in a perfectly legal activity, but if you bet on one single game, you were committing a crime.

As Senator Deacon noted, that bill brought into the sunlight the issue of sports betting. It achieved at least four positive things: It created a legitimate industry away from the grey or black markets of sports betting; it at least made possible effective regulation of this industry; it brought revenues to public government; and it made possible the adoption of strategies to identify those at risk from sports gambling and to direct revenues to help ameliorate those risks.

I continue to support that initiative — the decriminalization of single-event sports betting. As you know, there was a good deal of background associated with the adoption of that bill, and, as Senator Deacon pointed out, the passing of that bill opened up a whole range of sports-betting opportunities and also, it turns out, an onslaught of advertising and promotion of sports betting. The latter, of course, is the focus of this bill.

But for my part, a confession: I had anticipated we would see a good deal of advertising by betting platforms to attract people to join their websites and place bets through them. It’s not surprising that this would take place since the profitability of betting platforms relies, to a certain degree, on small margins earned through a significant number of bettors placing a significant number of bets. What I had not anticipated — and I think this is also true in England — was the degree to which we have been inundated with advertising to encourage us not just to join the betting platforms but to place bets on ever so many outcomes — and even components of outcomes — to the point where the things that one could bet on have become ridiculous and, in some cases, problematic. The promotion of betting has become overwhelming and, in some cases, offensive.

I read an article last spring about a particular sports broadcaster putting out an apology to this effect: It apologized to viewers for having cut away from a sports-betting ad to return to the live action. The apology was a spoof, but it essentially makes the point I’m trying to make here.

Senator Deacon outlined well the challenges and risks that excessive amounts of sports betting and advertising have generated for us. Now we have the public policy challenge of appropriately reining in this plethora of betting promotion, which brings me to the next section, “The elephant.”

There’s an old story that circulates in the legal field, and it goes like this: Four students — a Canadian, a Brit, a German and an Italian — are taking a writing course. The instructor gives them an assignment, which is to write an essay on the subject of “the elephant.” Having written their essays, they come back to class, and the instructor asks each for the title of their essay. The British student’s response — it could have been a young Tony Dean — is, “The role of the elephant in the history of the British Empire.” The German student — it could have been a young Peter Boehm — said, “How to build a bigger and better elephant.” The Italian student — perhaps a young Tony Loffreda — called his essay, “The love life of the elephant.” The Canadian student — and here I am coming to my point; it could have been a young, nerdy Brent Cotter — titled his essay, “The elephant: a federal or provincial responsibility?”

You might be wondering what that punchline has to do with this bill. Let me get to that point.

Sports betting, and particularly the promotion of sports betting, is a topic like that of the elephant story: its topic is a mishmash of federal and provincial jurisdictions. Senator Dalphond identified this in his dialogue with Senator Deacon on Tuesday. On the subject of sports betting, the federal government has the power to criminalize that activity — which it did for a very long time, until 2021. It could include sports betting as a form of gaming, which it did in the 1980s, and legally transfer the oversight of it to provinces. It delegated authority to the provinces, who undertook the management of gaming, including sports betting. Additionally, Ottawa can regulate communications with respect to sports betting, which are conducted under the regulatory authority of the Canadian Radio-television and Telecommunications Commission, or CRTC.

The result of all of this essentially constitutional line drawing is that Ottawa has some meaningful authority over sports betting, but much of the regulation of gaming, including sports betting, is in the hands of the provinces. This explains why at least one part of the “gaming elephant,” if I can call it that, is a matter of provincial jurisdiction and why, for example, the Alcohol and Gaming Commission of Ontario announced that it would no longer be possible for sports-betting agencies to use celebrities in their ads. Similarly, British Columbia’s gaming regulator has taken steps to attach conditions to licences issued to sports betting agencies, which seeks to have a moderating effect on some of the issues that are concerning so many.

As I will mention in the final section of my remarks, there are things that provincial gaming authorities can and should do beyond what has happened so far that are within their and not Ottawa’s authority. But some parts of the gaming elephant are within federal jurisdiction.

Finally, the third section of my remarks: what to do when we come to the fork in the road. Some of you, hearing that phrase, might think of Robert Frost’s poem “The Road Not Taken,” but I would like to refer you to someone else. I commend to you today the consideration of a line from another great poet, Yogi Berra, who said — some of you will say it with me here — “When you come to a fork in the road, take it!” The fork in the road for me hints at the options for both the federal and provincial regulatory engagements on this issue. The advice, as you can tell from that great poet and constitutional expert Yogi Berra, is take both regulatory forks in the road.

How to get there: There are two federal asks in this bill. One is to direct the CRTC to develop appropriate constraints on advertising and promotion of sports betting in the areas where they possess federal regulatory jurisdiction. The other, led by federal cabinet ministers through widespread consultation, is the development of a national strategy to rein in the advertising and promotion of sports betting across the jurisdictional divide. This must be a wide-ranging project, for example, as Senator Marty Deacon noted, since research has informed us of the risks for vulnerable gamblers and young people, and those risks do not know jurisdictional boundaries.

Some examples of that, as she mentioned, are no advertising just before, during or after sports games; limits or bans on celebrities and athletes as promoters of gambling; no advertising during periods when young people are significant parts of audiences; and no presentation of ads in sports arenas or on players’ uniforms. Various European countries have undertaken variations of this. These approaches are set out in an excellent recent paper on the issue developed by a group led by former mayor of Toronto John Sewell and Dr. Bruce Kidd, a distinguished former Olympian and professor emeritus at the University of Toronto. My own research has captured a range of opportunities that are possible as well.

Dealing with the preservation of the integrity of sports, I will just make this one point: This wide-ranging national strategy should and could include an examination of the categories of sports that ought not to be allowed to be bet on, particularly where the athletes themselves are more susceptible to being bribed to throw or fix a game outcome. For example — and this has happened in other jurisdictions — the strategy could include the elimination of betting on amateur sports; no betting on college sports, as a number of U.S. states adopted when they received the authority in 2019 to regulate sports betting; and no betting on Olympic sports, a point that a number of proponents on this issue, including Dr. Kidd, have championed.

The reason for this needed national strategy is that many options are within provincial jurisdiction, a fork in the road that needs to be taken as well but that Ottawa can catalyze.

A broad cross-section of Canadian society wants action, from the deeply concerned parent about whom Senator Deacon spoke on Tuesday to the tens of thousands of viewers — it feels to me like I have heard from all of them — annoyed by the advertising onslaught, to those who have seen first-hand what addiction in any form can do to the lives and families of the vulnerable, to those who have given their lives and careers to sport and who worry that the object of their passion is being besmirched and its essence diminished, to sports ethics organizations like the Canadian Centre for Ethics in Sport, who worry that their commitment to healthy, safe, ethical athletic activity is being excessively and dangerously commercialized. Senator Marty Deacon’s bill gives us the opportunity to martial our resources — not to destroy an industry but to get it on the right path, a wisely nationally regulated path.

I support this bill and encourage you to do the same. Thank you very much.

(On motion of Senator Martin, debate adjourned.)