Bill C-290: The showdown – Canadian Senate to vote on sports betting changes to the Criminal Code

Bill C-290 is a draft law currently before the Canadian Parliament. It’s a short bill that repeals one paragraph in the Criminal Code. That paragraph is s. 207(4)(b), which excludes betting on “any race or fight, or on a single sport event or athletic contest.” Currently, because of paragraph 207(4)(b), the provincial lottery monopolies only offer parlay wagers. Bill C-290 would change that. If enacted, the provinces would have the ability to offer single-event or -game wagering. Some provinces are certain to offer single sport event wagers if C-290 becomes law.

I have blogged on Pokerati about a nearly identical measure – but for the coming into force provision – introduced in a previous parliament by the same MP. Those posts are here, here, and here. My view on whether this legislation should pass is unchanged (I think it should), as is my view of whether it will solve all of the problems with the provincial lotteries’ sports betting options (I think it won’t).

Bill C-290 passed the House of Commons back in March of this year. It’s been before the Senate since then, most of that time in front of the Standing Committee on Legal and Constitutional Affairs. Most of the presentations against the bill were unimpressive. You can see a video archive of all of the presentations before the committee here. In particular, Paul Beeston, President & CEO of the Toronto Blue Jays, gave a weak performance. Beeston was handled with kid gloves by senators, especially compared to the going-over they gave the bill’s proponents, but Covers skewered Beeston for his hypocrisy in opposing C-290. Now the bill is set to be debated by the whole Senate and be voted up or down. Debate is to begin this coming Tuesday. The Senate has the power to kill this bill. C-290′s opponents seem confident of victory. Senators Norman Doyle and George Baker have both been quoted as saying they have the numbers to defeat the measure. Even some of C-290′s Senate backers are lukewarm about it.

Let’s step back for a moment and look at the civics of the Senate and its role under the Constitution. It is not an elected body. Senators are appointed by the Governor General (our head of state’s — the Queen’s — representative in Canada) on the advice of the Prime Minister. There are 105 senators. Senators are typically prominent Canadians from a variety of professions and fields, and are usually affiliated with a political party. The Senate was famously called the chamber of sober second thought by Canada’s first Prime Minister, meant to check the populist excesses of the elected House of Commons.

Like the US Congress, Canada’s Parliament is bicameral. Legislation must pass both houses and receive Royal Assent to become law. The Senate — unelected as it is — is almost as powerful, at least on paper, as the Commons. As a practical matter, it generally doesn’t defeat legislation, and it can’t introduce money bills, but it’s still a powerful body.

Short of a constitutional amendment, this is the situation we’re stuck with. I would no more defend the power of an unelected chamber in any legislature than I would defend the fact that our head of state is a foreign monarch. But this is blog about the cards we have, not the cards I wish we had.

And it is in this context that I think some of the rhetoric of those in favour of C-290 is misplaced. First, there seems to be incredulity in some quarters about the fact that the Senate is an unelected and unaccountable body. Both the body itself and this reaction is old news. Every new law or change or repeal of an existing law requiring legislative clearance in Canada goes before the Senate. If you want to argue that the sports betting situation is all the more reason for some mild Senate reform, then fine, but it’s irrelevant to the question of whether C-290 should or shouldn’t pass, or will or won’t pass. The Senate is invested with the authority to spike this law if it wants to. Proponents need to bring their best game to the table and stop whinging about the Senate being unelected.

Second, there has been at least one unfortunate comment made that the Senate’s rejection of C-290 after unanimous passage by the House of Commons would be unprecedented. This is disingenuous. The Senate has defeated measures before. It doesn’t — and shouldn’t — do it often, but it happens. That a private member’s bill was passed by the Commons by “some honourable members” (in the language of Hansard) doesn’t change the Senate’s role, even if it was on unanimous subsequent motions by the lower house. This isn’t the first time in history that the Senate has considered defeating a measure sent up by the House of Commons, and it won’t be the last.

One of the hidden stories in all of this is how the federal Conservative government has handled this proposed Criminal Code change. They allowed the bill to go forward as a private member’s bill introduced by an MP from another party (a New Democrat). The Attorney General supports the measure and has pressed senators to pass it. If C-290 passes, the government may get some of the credit for helping it along, even thought they didn’t introduce it. If it founders, they’ll likely get none of the blame. They’ll say they tried their best. That’s also misleading. Their “best” would have been to introduce the substantive elements of C-290 as a government bill, which the Senate would have a much harder time voting down. But Canadian governments. and especially federal governments, don’t like to deal with gaming issues. The Conservatives are continuing that long tradition.

Bill C-290 may pass. My sources are still confident they have the Senate numbers to get it done. But proponents should not pitch their case too high. Misleading rhetoric on the Senate, its history, and its place in the constitutional structure risks weakening the case and pressure for passage. The pro side should be better than that.