Criminal Code
Motion in Amendment Negatived
June 17, 2021
Therefore, honourable senators, in amendment, I move:
That Bill C-218 be not now read a third time, but that it be amended on page 1 by adding the following after line 9:
“2.1 The Act is amended by adding the following after section 207.1:
208 (1) Every person commits an offence who
(a) cheats at gambling; or
(b) does anything for the purpose of enabling or assisting another person to cheat at gambling.
(2) For the purposes of subsection (1), it is immaterial whether a person who cheats
(a) improves their chances of winning anything; or
(b) wins anything.
(3) For the purposes of subsection (1), cheating includes actual or attempted deception or interference in connection with
(a) the process by which gambling is conducted; or
(b) a real or virtual game, race or other event or process to which gambling relates.
(4) Every person who commits an offence under subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.”.
Senator White, you have about three and a half minutes left in your time. There are a couple of senators who wish to ask questions. Would you take a question?
Absolutely, Your Honour.
Senator White, I have reviewed the proceedings of the Senate Banking Committee which dealt with this bill, which, of course amends the Criminal Code. I note that only one witness with a legal background was called as a witness on this bill. During that particular testimony at the Banking Committee, there was a case referred to — the Supreme Court’s Riesberry case where charges were laid for section 209 as well as fraud with respect to a horse race being fixed. This does appear to be a case of fixing, but could you explain why these Criminal Code offences may not be a solution for other match-fixing cases?
Thank you for the question. It’s interesting. If it’s a trainer, a syringe and a horse, the clarity and the elements are easily met when it comes to whether or not that’s a fraud. But I would argue, having served 32 years in policing, 8 years of which my only responsibility was fraud cases, I almost never laid fraud charges because it’s so difficult to prove the elements of a fraud charge. In fact, as my learned friend Senator Dalphond talked about being able to prove that, in a soccer game, the goaltender knew that if he allowed a spread, it would cause the specific loss of funding for a specific person or the public, is almost impossible. In fact, I think if fraud charges would have been appropriate, then the Canadian Soccer League, when the police and the RCMP were investigating that, we would have at least seen one criminal charge come out of that. Instead we’ve seen none. And in fact we’ve seen none in Canada with the exception of the one trainer, one horse, one syringe case.
Senator White, which specific elements of the match-fixing offence some expressed concerns about would be more difficult to prove? Would that be particular offences dealing with the match or that someone is trying to fix it?
Thank you very much. The clarity found around a specific offence of match fixing, I think, would remove any ambiguity whether or not other charges could be laid. When I looked — they have taken my piece of legislation from me, so I don’t have it. But the elements have great clarity in the fact that anybody involved in the shifting or manipulation of a match could be convicted of a criminal offence. Much more difficult when only using fraud and, in fact, I would argue impossible under 209 where cheating at play has to do with a game of chance, not a sports match. So I think the clarity we would get from match fixing would certainly clear up any ambiguity, I think. It would make this a clear offence. And I think if we’re going to see increased single-event betting across all sports and ages, I think we also have to make sure that we have the tools for law enforcement to do their job.
There are other senators who wish to ask questions, however your time has expired, Senator White.
Thank you, Senator White, for bringing that forward.
Again, I think it’s important to note that the Supreme Court of Canada has upheld that match fixing is covered specifically through the fraud provisions. Interestingly, Senator White brought up Paul Melia, whom I used actually in quoting in my speech, where he is supportive of this legislation as is, but I would like to address a couple of things.
As noted in my third-reading speech, colleagues, the committee heard from expert witnesses that strongly expressed the point that a specific entry on match fixing in the Criminal Code is unnecessary and perhaps even unhelpful.
We heard from Senator White the dangers of match fixing. I agree that’s important. At committee, we heard from Donald Bourgeois — again, I spoke about this just a short time ago — an expert in gaming law. He spoke about the Riesberry case that would not have made its way through the legal system if it were not for the existing regulatory framework. So that’s key, colleagues. What we’re doing, we’re including single-event sports betting under the existing regulatory framework so we can actually go after these types, these attempts at match fixing.
Increasing regulations and safeguards would allow more of these cases to be discovered and prosecuted to protect the integrity of the sport. In fact, regulation would also prove to be a significant deterrent, as opposed to now where match fixing may or may not occur. We don’t know because there is nothing that falls under the regulatory regime of Canada or the provinces who control this, with respect to single-match betting.
Again, you heard in my speech earlier that match fixing is illegal in Canada, full stop, under sections 209, 380 and 465, that all work together under the umbrella of those sections of the code. So having something very specific — as we heard from Senator Batters, who mentioned the legal expert at committee — that in fact could be a hindrance because of having to prove the specific elements. The example I would use is that if it’s illegal to rob a grocery store and someone robs a fruit stand, could that be considered robbing a grocery store because it’s a fruit stand, whereas robbery is illegal, and that would be covered under that rubric.
That’s all I have, colleagues. I don’t support the amendment. I think Senator White’s assertions are not grounded, and I would urge you not to support the amendment.
Senator White, a question?
If I may.
Please.
Are you suggesting that we could charge someone with fraud if they robbed a fruit store? Because the specific offence would be robbery, and in this case, you are saying we should not use the offence of match fixing but try and figure out if we can use another criminal offence with different elements to try and fit the specific case of match fixing. So I’m not sure that analogy helped me.
Thank you, Senator White. So the greater umbrella section of the code, working together, as it did in the Riesberry case — under fraud, under cheating at play — those are the elements that would be easier to prove under the larger rubric of the laws that are existing.
If I may, Your Honour, I have a follow-up.
In the Riesberry case — if I may, senator — was the individual convicted of cheating at play under section 209?
I don’t know what he was convicted of, but I know he was —
He wasn’t convicted of 209.
Sure, but I know his conviction was upheld by the Supreme Court using a variety of laws in the Criminal Code.
The cheating-at-play matter was actually referred back to trial, but he was convicted of fraud.
I’d like to make a brief intervention. Out of respect for his background in the world of criminal justice, I felt I had a duty — and I think we all do — to take Senator White’s concerns seriously.
I have some background on the legal side of criminal justice, including with respect to fraud. And I had to pay a fair amount of attention to understand the elements of the offence of fraud in particular. I was pretty confident that the existing provisions dealing with fraud would sufficiently cover issues of match fixing, but Senator White’s concerns gave me pause. And to consider this, I used some of my office budget to retain a leading criminal law scholar Steve Coughlan, recommended to me by leading lawyers in the area of criminal law to provide an opinion.
His view unequivocally — and I shared this with Senator White — is that the Criminal Code, including the fraud provisions in cheating at play, are more than adequate to handle the range of match-fixing strategies that might occur, all backed up by the Supreme Court decision in 2015 to which the senators have referred. Professor Coughlan’s conclusion, and I quote, was:
. . . the current provisions in the Criminal Code are capable of dealing with improper attempts to manipulate the result in a sporting event.
A witness at the Banking Committee, Mr. Bourgeois, gave a similar opinion. A legal opinion that I saw commissioned by a proponent of the bill and prepared by a very distinguished practising lawyer in Nova Scotia Joel Pink, Q.C. — often referred to as the dean of criminal lawyers in Nova Scotia — came to similar conclusions.
I was also interested in Professor Hill’s work, and I reviewed a study he conducted of prosecutors on these matters in the European Union and concluded that the greatest challenge to prosecution was not the legal framework in their countries but the challenge of getting evidence. It’s kind of obvious when you think about it. The people who get bilked are themselves committing crimes, and they’re not that keen to come forward. Regulation and legalization would actually help us to identify and detect crimes.
Out of courtesy, I think — and I appreciated this from Senator White. He shared his proposed amendment with me a week or so ago, and I asked Professor Coughlan to comment on it. First, he concluded that the proposed amendment doesn’t add anything to the common law understanding of cheating that is not addressed by the already-existing fraud coverage in the code. And second is a technical and important point that, in a sense, Senator Wells alluded to: that the particular can drive out the general.
Senator White’s amendment applies to gambling. Gambling has no definition in the Criminal Code. To the extent that the word “gambling” has been interpreted in the courts, it is equated to gaming. That means the gambling provision that Senator White proposes applies to gaming. By definition in the Criminal Code, gaming applies to “games of chance” or mixed skill and chance.
In order for the amendment’s specific prohibition against cheating or deception in gambling to work, it can only apply to those kinds of games where there is, as quoted by the Supreme Court of Canada, the “systematic resort to chance” involved in many games, such as the throw of dice or the deal of cards. Indeed, in this horse-racing, match-fixing issue, the court had to conclude that horse racing was a game of mixed skill and chance, where the skill is the horses and the chance is in which slot the horses start in order for it to fit within the gaming regime.
The kinds of sports we are talking about are not gaming. The Supreme Court itself has said, in fact, those kinds of activities are not games. There are not the “unpredictables that may occasionally defeat skill,” and there is the intractable problem: Since most sports are defined as games of skill, not games of mixed chance and skill, the gambling provisions proposed in this amendment miss the mark in relation to sports.
It is a small example — not intended by Senator White or those who helped him draft this — of the risk of being so particular that you can miss the mark. With the greatest respect, this is not the process by which we construct criminal law.
To the credit of those who have examined this, the status quo is adequate, and I would urge that you not adopt the amendment.
Honourable senators, I would like to speak to this amendment out of great respect. I speak not as a lawyer or an expert in criminal justice but as an individual who has witnessed and worked at the table tirelessly to resolve a wide range of blatant match-fixing and match-manipulation issues.
I can’t thank Senator White enough for bringing to the Senate and to the table the whole area of match and competition manipulation. Sadly, it is a big deal here and internationally. Having the opportunity to work with athletes who are aspiring to be the very best they can be in the world is really something to see, along with all aspects of the impact of this. So while I absolutely support the care, interest and concern around match manipulation and the intent of Senator White’s comments and expertise today, I can’t support the amendment.
My work has put me at the table internationally trying to understand the issues of match manipulation, the magnitude of it in professional and amateur sports, but particularly amateur sports, and as Senator White talked about, second-tier sport. We were unable to wait for the signing of an international treaty. We had to work diligently at this. When we sit at the table and look at the laws, the Criminal Code and the rules in other countries, the feedback was that Canada has the diligence, and this is covered by the provisions and the layering of our Criminal Code.
It was shocking for me to see the holes and the loopholes that other large, advanced countries did not have. I felt assured. Personally, as a female, this has been a pretty risky project to take on internationally, but I care very much about getting this whole area of manipulation right and trying to do better, but not by supporting this amendment this evening.
Are honourable senators ready for the question?
If you are opposed to the motion, please say “no.”
Those in favour of the motion and who are in the Senate Chamber will please say “yea.”
Those opposed to the motion and who are in Senate Chamber will please say “nay.”
In my opinion, the “nays” have it.
I see two senators rising. Do we have agreement on a bell?
Your Honour, 15 minutes.
The vote will take place at 8:21. Call in the senators.
