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.)