Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 56 - Evidence
OTTAWA, Thursday, February 18, 1999
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-57, to amend the Nunavut Act with respect to the Nunavut Court of Justice and to amend other Acts in consequence, met this day at 10:52 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, before we proceed to clause-by-clause study of the bill before us, Senator Beaudoin has something which he would like to put on the public record. For the purposes of getting his comments on the record, we will call Mr. Bebbington to the table and Senator Beaudoin may ask his question.
Senator Beaudoin: I agree entirely with this bill. However, for the purposes of the record, I wish to be sure that the judicial system that is dealt with in this bill does not change the status quo in that bilingualism, English and French, is entirely protected, and that this bill has no effect on the existing laws that are applicable in the territories. I believe that is the case, but I would like confirmation from an official.
Mr. Howard Bebbington, Counsel, Criminal Law Policy Section, Department of Justice: Senator, I can confirm your understanding entirely. Bill C-57 makes absolutely no change to the official languages of Canada as those are protected. There is an area for territorial legislation and, as you may know, the Norhtwest Territories law adds to French and English other languages as official languages in that jurisdiction. That legislation will be duplicated for Nunavut.
This bill and the territorial laws will not alter the current protection of English and French.
Senator Joyal: On the same subject, can you confirm that the status of French and English will be entirely maintained in the new territorial legislature?
Mr. Bebbington: Senator, to my knowledge, they are. As I said, this bill makes no changes to these areas. My expertise, as I indicated yesterday, is court structure and criminal law. My understanding is English and French are constitutionally protected across the country. There is nothing I know of that will make a change to those protections in the new territory of Nunavut.
The Chairman: Thank you, Mr. Bebbington.
At this point, senators, we will move to clause-by-clause consideration of Bill C-57.
Senator Bryden: Madam Chairman, I believe all of us have carefully considered this bill. Unless I misread my colleagues, we concur in its approval. I move that we dispense with the clause-by-clause consideration of the bill and that we report the bill to the Senate without amendment.
Senator Grafstein: Madam Chairman, I was unable to attend the last several meetings of the committee because of a conflict with other committees, and I have not had an opportunity to review the transcript of the last hearing. I do not know whether the concern I raised at an earlier session is still an issue. We are putting into place a brand new system. My experience in Ottawa leads me to believe that, once something is established, it does not necessarily come back quickly for review. That was our discovery with respect to the military criminal justice system. It had not been reviewed for some 50 years.
Senators will recall that we had a very spirited exchange about that proposed legislation. Ultimately, we amended the bill to provide a review mechanism within a given period of time.
Have other members of the committee given any consideration as to whether that might be appropriate in this instance? I have not drafted an amendment to deal with that, but perhaps that amendment would be similar to the amendment we incorporated in the military justice bill. Essentially, it would read that, five years after proclamation, an independent review would be conducted by the Minister of Justice who could consider any changes with respect to the legislation. That puts a five-year experimental period in place. It can then be reviewed by Parliament. At that time the minister may conclude that no amendments are necessary. It does not inhibit the minister from coming forward with any amendments at any time. At least it sets a formula for review, particularly as this is an entirely new process.
If that view is shared by others, I will try to prepare an amendment quickly. If not, at least it is on the record that I feel it is essential that we do that.
I should like to make one other substantive point. I am not convinced on the evidence that, while we have set up a process that is appropriate, that we have set up the manpower to facilitate the administration of justice in Nunavut.
By that I mean I do not believe that we have the appropriate number of judges. We have gone from five to three. In saying that, I have in mind the very high rate of incarceration in the North and in Nunavut. The figures indicate that the incarceration rate in the Northwest Territories is the highest in Canada.
That indicates to me that there is something inherently wrong with a number of things, including the administration of justice. We are not changing the administration of justice by this bill, we are simply collapsing two levels of administration of justice into one. There are no inherent changes. As Senator Beaudoin has pointed out, we are incorporating the law as it applies. While we are making an important change, I am not sure whether the change is more cosmetic than real.
I would hope that an independent review would carefully consider not only the letter of the law as it applies, but also some of the systemic problems that exist in Nunavut.
The only way I can suggest that we deal with that easily is by way of a five-year review. We should make it clear in our report that those responsible for the administration of justice should look at, not only the letter of the law -- the processes -- but also the systemic problems which we have not had an opportunity to address.
The Chairman: Senator Grafstein, we were told that an evaluation process is being established, and that there will be a conference in 2001 to assess how the system is working.
Senator Nolin: I supported the amendment to which Senator Grafstein referred, that is, the suggestion we made when we dealt with criminal justice in the military.
However, in this instance we are dealing with the courts. If there is a real concern about the administration of justice in Nunavut, we will hear about it, not from a review board, but from the members of Supreme Court. I think it would be inappropriate to suggest a five-year review.
The Chairman: There is a built-in safeguard.
Senator Andreychuk: I am inclined to agree with Senator Nolin. If we want to study the real issues, as Senator Grafstein has pointed out, we will do that, not during our study of this bill, but rather by a study of the administration of justice and its implementation. That goes beyond the scope of a review of the act.
I would not favour the proposed amendment.
However, I do have concerns about minority rights. I do not know whether we should sound a warning in some way in the report.
I am inclined to agree with the principles of the proposed legislation. I have travelled on northern court circuits, and I know that amalgamating the courts has been discussed for 30 years. From a purely mechanical point of view, it will make the courts more efficient. From a practical point of view, the appointment of the JPs will be key. They will form the day-to-day justice system. If they are appointed fairly and trained properly, then I would have few concerns about minority rights being respected. However, if someone questions how they are appointed or the perception of how they are appointed, or if all of them are aboriginal people and the minorities are not represented, then there could be a perception of lack of justice in the system.
As to Senator Grafstein's concerns about the administration of the system, perhaps we could include something in our report to cover that, as opposed to writing a qualifier to the proposed legislation.
Senator Beaudoin: When we discussed the court martial system, we had no alternative but to do what we did. I have no doubt that, within five years, an amendment will be introduced.
In this case, I do not think that is so. It is clear that Parliament has full authority over territories. The usual problems with federal and provincial jurisdictions do not apply in this case. Those are federal territories created by the Parliament of Canada. Section 96 does not come into play, and they can establish the judicial system that they want.
I asked the official to come to the table a few minutes ago because of my concern about the application of bilingualism in the federal system of justice throughout Canada. He said that the bill does not change that. Therefore, French and English will still be the official languages. That will add to the protection of minorities in Nunavut. They may add an Inuit language. I certainly do not object to that.
Since my concerns have been addressed, I can vote in favour of the bill. The other day the experts and, indeed, the Minister of Justice confirmed that section 35 rights are protected. Whether we have two or three territories changes nothing.
With all that protection, I am ready to vote.
The Chairman: It has been pointed out to me that the administration of justice is a territorial responsibility in this case. Is it appropriate, then, for a Senate committee reporting on a federal bill to make suggestions about an area of territorial responsibility?
Senator Andreychuk: Yes, especially as it may relate to minority rights.
The Chairman: I am quite willing to sit down with the staff when we are through this morning and include these concerns in the report.
With that in mind, I should also tell you that, as a result of their appearance before this committee, I have drafted a letter to the NTI. I will discuss that with the steering committee, and I will circulate it to committee members. It strongly suggests a course of action.
With that in mind, I will put the question on Senator Bryden's motion.
All those in favour?
Some Hon. Senators: Agreed.
Senator Grafstein: Could you note my abstention, Madam Chairman? I want to consider whether or not I will introduce an amendment in the Senate. I am heavily weighted towards that course of action. I am persuaded by my colleagues about the efficacy of this bill, but I am not persuaded that they have addressed my concerns. I want my abstention noted so that I am freer to deal with this matter in the Senate.
The Chairman: It is then agreed, with one abstention, that this bill shall be reported without amendment.
The committee adjourned.