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.)

Senator Cotter: It’s a great initiative — and great research on your speech. Thanks from all of us for the work you did here. Your friend and colleague Frank Caputo is my former student; I feel bonded to this issue in a certain way. It reminds me of how old I am.

My question is as follows: I agree with you that words matter, but do you — or the sponsors of this bill in the House — have a view about their comfort level around the substance of the offence as well? You mentioned high levels of conviction in Saskatchewan in cases where charges are laid, but what’s your read on that, and whether that’s also a dimension of what might need to be considered here?

Senator Batters: Thank you very much, Senator Cotter. I was going to mention that not only is Frank Caputo a proud product of the University of Saskatchewan law school, but so is the judge, Greg Koturbash, whom I quoted in that case. I don’t know if you taught him as well — anyway, thank you. Kudos for U of S Law.

That’s the thing about private members’ bills. The most successful ones try to take a particular thing and make that change.

So perhaps there is something more to be done about the definition or what have you, but this is the particular part that Mr. Caputo and Mr. Arnold decided to go with, and I think that’s smart. Sometimes a private member’s bill can get a bit too all‑encompassing.

Perhaps that’s something to look at in the future, but this is what we’ve chosen to do right now. Thank you.

(On motion of Senator Patterson (Ontario), debate adjourned.)

Hon. Brent Cotter: Honourable senators, I confess that my remarks may display a small amount of impatience, and I apologize in advance for that. I have a short speech, and I will come at it through the side door, I think. I hear some of you saying, “Oh, no, not again.”

I understand that there’s a rule in the Senate that senators are not allowed to use props. I want to respect that rule, but I hope that it does not extend to describing a prop that one would have used had one been allowed to use it.

The prop I would have liked to have brought to this topic is a sweatshirt that I own. I wish I had worn it today. On the sweatshirt is written a short, pithy sentence from the judgment of a famous English judge, Lord Denning. Your Honour, you and I and nearly everybody who has studied law has encountered Lord Denning.

The sentence to which I am referring, and which appears on my sweatshirt, is from an old English court case decided in 1954. The case was called Marsden v. Regan. Lord Denning began his judgment with the following sentence, which appears on my sweatshirt: “This case ought to have been simple, but the lawyers have made it complicated.”

Some of you are thinking that this could apply to a lot of things about lawyers, not just court cases.

In a small way, I think it applies to the present state of Bill S-236 and our current situation. To be blunt about it, this issue ought to have been simple but I fear we senators have made it complicated.

Here is my point: The Senate Agriculture and Forestry Committee did a conscientious study of Bill S-236. The committee’s work was reported to the Senate. Subsequent to that, or during that process, new information came to light, as has been shared with us, regarding the financial implications of the bill that suggested it required further consideration. The committee agrees. Given that the bill has created some interest and concern in some constituencies, most notably in the circumstances of low-income Prince Edward Islanders, it seems incumbent upon us to send the bill back to the committee for further consideration — in light of all of the circumstances — to hear from appropriate witnesses and have the committee report back to the Senate in a timely fashion. I hope we will act in this way.

As I am trying to honour the sentiment of the prop that I was unable to wear today, that’s all I have to say. Thank you.

(On motion of Senator Patterson, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Pate, seconded by the Honourable Senator Miville-Dechêne, for the second reading of Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation.

Hon. Brent Cotter: Honourable senators, the remarks this evening and throughout the day on this topic have been outstanding. Senator Gold gave one of his finest speeches, and it will be remembered here. I agree with much of it. His recitation of the history of these issues was outstanding.

This is a narrow but important issue, and a hole in the law that the Supreme Court of Canada itself acknowledges.

Let me begin by speaking about this personally. Much of my career has been skipping from issue to issue off of the tops of the waves rather than digging deeply into issues, with some exceptions, and this is one.

As a young lawyer doing legal aid work, I defended a young man with intellectual impairments who was charged with rape, as it was then called. He was extremely intoxicated, so much so that, many hours after his arrest, he blew 0.21 on the Breathalyzer — nearly three times the legal limit for driving a car. The defence was that he was too intoxicated to form the intent to commit the crime of sexual assault.

I did my best. The case went to the Saskatchewan Court of Appeal. The legal issues were complex, or at least they were at that time, and the Court of Appeal took a year to make a decision. They upheld the young man’s conviction — rightly, in my opinion.

This got me thinking about two things. First was the role of lawyers in defending people in these situations — a topic for another day. Second was the problematic nature of the law if people who put themselves in such a state can be absolved for what they did when they were very intoxicated.

Unlike other areas of the law, I have followed the evolution of the law in this area of extreme intoxication more closely than others. I found that Senator Gold’s recounting of that law brought me back to those cases and memories of that evolution.

It brings me, in some ways, to this place and this issue today. I have a tangent that I would share, but I feel Senator Plett stole the quota of tangents for the evening, and I’m going to let this one go and start my remarks at another point.

I have immense respect for Minister Lametti. In my view, he’s doing an excellent job in a very challenging portfolio, and I greatly admire the work of his Department of Justice team. In that sense, I’m in accord with the remarks of Senator Tannas.

On Bill C-28, I think they worked diligently on short notice, under significant public and political pressure, and they did the best they could. Let me be fair to the minister and his team: They may be working on a problem that is virtually intractable. Let me try to explain.

What we love or value in general terms, we often hate in its specifics. Here is what I mean: First, we have a foundational principle in our criminal law of hundreds of years’ standing, reinforced by our Charter of Rights that, with rare exceptions, we only punish people for offences when they have a guilty mind or, as Senator Dalphond said in his more erudite manner, mens rea. In simpler terms, we only use the criminal law to punish people for doing a bad thing if we conclude that they intended to do the bad thing, and nearly all of us are fine with this. Senator Gold presented this in a more elegant way.

Second, in an instance like the cases that bring us here, courts have found that the person who did the bad thing had no ability to intend to do the bad thing. Hence their acquittal, and hence our problem.

Let me add a bit to this. In Brown, Sullivan and Chan, all nine judges of the Supreme Court of Canada came to the same conclusion. It’s not some aberrant flight of fancy. In fact, in my view, Justice Kasirer’s decision, writing for the whole of the Supreme Court, is principled, honourable and heartfelt. He understood the significance of what he and his colleagues were deciding, and in an extraordinary effort — unusual in court decisions — offered ideas for ways forward for Parliament to fill the gap that they knew they were creating in the criminal law.

This is a classic example of what Professor Peter Hogg, perhaps Canada’s greatest constitutional lawyer — even, if I may say so, greater than the Leader of the Government in the Senate, perhaps a subject of debate on another day, I’m sure — referred to as a dialogue between the courts and the legislatures in relation to the Charter of Rights — in this case, Justice Kasirer’s dialogue; it is now our turn.

The question is: Is Bill C-28 the right parliamentary response in this dialogue? Many of us have spoken and will speak to the perceived or anticipated shortcomings of Bill C-28 as a response to what I will call self-induced criminally negligent extreme intoxification leading to harm to victims. In discussion with Minister Lametti, as Senator Plett noted, I raised one of these points myself regarding the ability to effectively prosecute the offence.

To be fair, the dilemma is difficult. We are reluctant — as Senator Gold noted — to create an offence that is limited to merely criminalizing negligent intoxification. Some have suggested, including the Supreme Court, that this provides a discount for intoxification. On the other hand, a bill like Bill C-28 honourably seeks to link the criminal negligence to the risk of harm and essentially the harm itself so that the perpetrator, if convicted, will be punished in line with the severity of the harm caused, not just the intoxication.

Here is my concern: By pursuing the very goal it seeks to achieve, Bill C-28 poses the risk that the necessary evidentiary connection, not constitutional, to that bigger offence and punishment — the linkage to that bigger guilty mind, the intention not just to become extremely intoxicated, but even objectively to risk harm — will be potentially unachievable.

Let me say a little bit more on that. Senator Gold described, rightly, that this will be an objective standard. I have no idea what the statistics are about magic mushrooms, but I want to tell you that it is almost unimaginable to me that lots of people having ingested a lot of magic mushrooms rush out and harm other people. My guess is that on all kinds of these substances the statistics are shockingly low that people take them and then engage in violence. If that is true, it powerfully undermines the argument that convictions will be achieved.

Senator Gold and I had an informal discussion about Bill C-28 yesterday. It was a rich discussion. I will not say more about the content. It was enriching for me, at least, and it made me somewhat more hopeful — but I think that I would only say “somewhat” — that the bill will be able to be effective. It brought to mind a metaphor that I shared with Senator Gold. I wasn’t going to share it today, but I quite frankly can’t resist. I believe Senator Plett left one more metaphor on the table, and I would like to use mine now.

A Nova Scotian friend told me this story about two fellows riding in a rowboat. They are going down the river. Suddenly they realize, holy cow, they are about to go over a waterfall. One of them, the leader in the boat, says to the other, “Throw out the anchor.” The second guy says, “I would, but the anchor is not attached to the boat.” The first guy says, “Throw it out anyway, it might do some good.”

I am a little bit worried that this piece of legislation, as heartfelt as it is — and I prefaced that in my remarks to Minister Lametti — may not be effective.

Where do I ultimately stand on the bill?

First, I’m satisfied that it is constitutional. I have had advice on that from others. I am completely in agreement with Senator Gold. The bill will not be struck down. It touches all the bases the Supreme Court asks it to touch, and indeed the Supreme Court invites this as one option for consideration.

Second, I would have preferred more reflection to see whether other formulations are preferable. At the same time, I am aware of the urgency of the issue. Additionally, the willingness of all elected parliamentarians to embrace the option deserves meaningful consideration. I’m appreciative that plans are in place to enable senators to study the whole terrain of extreme intoxification in criminal law, including this section of the code. On balance, with some reluctance, I will support the bill and watch attentively its effectiveness. Thank you.