Proceedings of the Standing Senate Committee on
National Finance

Issue 15 - Evidence

The Standing Senate Committee on National Finance met this day at 9:38 a.m. to examine the Main Estimates laid before Parliament for the fiscal year ending March 31, 2001.

Senator Lowell Murray (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we have before us the Estimates for the current fiscal year of the Department of Justice. We have the pleasure of having before us, as our principal witness this morning, the Deputy Minister of Justice, Deputy Attorney General of Canada, Mr. Morris Rosenberg. Mr. Rosenberg is accompanied at the table by two officials, whom he will introduce to us. Behind them are several other officials, who will be called upon if and when needed.

Mr. Rosenberg has an opening statement. Welcome, Mr. Rosenberg. Please proceed.

Mr. Morris Rosenberg, Deputy Minister and Deputy Attorney General Department of Justice: Thank you for inviting me here today to speak about the Department of Justice. Let me introduce Robert Bourgeois, who is the Assistant Deputy Minister, Corporate Services, and Lindsay Rodigue, who is the departmental secretary. There are also a number of other key officials who are here this morning to assist in answering any questions that you may have.

[Translation]

I will endeavour to be brief so that I can answer as many questions as possible. First of all, I would like to give an overall summary of the kind of work we are doing in the government. Second, I will speak about the corporate aspect of our work within the department. Third, I will deal with some more basic questions to which we will endeavour to respond as a department and as a public institution that affects the day-to-day lives of Canadians throughout the country.

First of all, allow me to give a brief overview of my department's role within government. Our work reflects the minister's dual role as Minister of Justice and Attorney General of Canada. The wide variety of responsibilities we hold within government can best be described in terms of our three inter-related roles, namely service organization, central agency and policy advisor. Let me emphasize at the outset the inter-relationship of these roles, as no part of our work is done in isolation.

[English]

As a service department, the Department of Justice provides legal advice to departments and agencies of the government, but we are also involved in drafting legislation and conducting litigation on behalf of the government. As a service agency, we try to anticipate and adjust to new trends in the law that may affect government operations, all in an effort to manage the law in a preventive way.

As a central agency, the Department of Justice has a statutory responsibility to see that the administration of public affairs is in accordance with the law. This central agency role implies a responsibility to ensure that legal advice and services are consistent across the Government of Canada and are in conformity with the law and sound legal policy.

Part of this role is to provide leadership on legal policies -- for example, alternate dispute resolution mechanisms, to try and move things out of the court, where that would be effective; regulatory compliance; and on legislative policy, to ensure that federal legislation forms a coherent whole, that it reflects the linguistic duality of Canada and that it reflects the bi-jural nature of Canada.

Rapid changes in Canadian society and heightened citizen expectations have intensified demand for policy leadership. The Department of Justice has lead responsibility in a number of key areas, like criminal justice policy and family and youth law. We also have the lead on human rights law, administrative law, aboriginal justice, access to information and privacy law, official languages law, and the government's mandate for courts and judges. We are responsible for over 40 statutes, many with major policy ramifications.

[Translation]

The pressures in all three of areas of our work have greatly increased due to several factors. The most obvious factors are, first of all, what I refer to as the increasingly judicial nature of policy sectors. Every significant or controversial policy issue raises increasing legal questions, especially questions about applying the Charter. This means that lawyers must be involved in the policy development process from the beginning. This will require more resources from the Department of Justice. This also indicates an increase in the number and complexity of legal issues involving the department's resources.

The other major factor is globalization and interdependence among nations. This has a major impact on our work in areas such as crime and international trade. Agreements between Canada and other countries to cooperate in investigating and prosecuting organized crime and drug trafficking have increased the number of demands on our prosecutors.

Third, changes in law as well as in the structures and mandates of federal government departments and agencies have given rise to a significant increase in the demand for legal services. For example, the creation of the Canadian Food Inspection Agency has forced the department to establish a new unit responsible for providing on-site legal services.

New technologies such as reproductive technology, electronic commerce and Internet crime constitute another significant factor affecting our workload. There are also changes in Canadian demographics such as family structure and aging of the population.

Finally, I observe a greater willingness to cooperate and establish partnerships with constituents of provincial and territorial governments and foreign countries.

[English]

We are operating in a more complex society and hence a more complex environment. To develop policy and maintain the excellence of our legal advisory work, we need to manage it more aggressively than we have in the past. Therefore, planning and priority setting, coordinating and integrating policy development with other policy departments at all levels of government, including internationally, as well as research, consultation, analysis and evaluation, are more important than ever in our rapidly shifting environment.

Let me turn now to the financial side of the department. As a result of a comprehensive review of the department's reference level undertaken jointly with the Treasury Board Secretariat, the Department of Justice was one of a number of departments to receive incremental funding through the last budget, thereby allowing us to maintain the integrity of our programs. Through the budget, the department receives $90 million per year beginning with the current fiscal year. These additional resources will go some way to alleviating pressure across the department's business lines, that is, government client services, law and policy, as well as the administrative support to these business lines.

In terms of service delivery, the resources will help restore the department's capacity to perform the Attorney General function. This capacity has been eroded because resources have not kept pace with increasing demand. Most of what we do on the Attorney General's side of our business is not discretionary. We do not have many choices about how to allocate our resources in this area.

On the policy side, these new resources will supplement the department's A base, to fund the demands of the broad justice policy agenda. New resources will also allow the department's administrative support units to meet current operational needs and to facilitate the development of a modern organization that takes full advantage of information technology, continually invests in training and learning, and is capable of efficiently delivering effective client service. The department is using these new resources.

At this time, I will run through our six-point financial strategy. The first is distributing the reference level review resources in an optimal way to address the basics to stabilize the department's finances, address deficits, and make inroads on our workload issue; second, improving the timing for the allocation of the A base, including the carry forward and increased departmental reserve and reference level review resources.

The third point is creating a strategic investment fund to support the implementation of the department's change agenda. For example, the department has identified significant opportunities to improve the way technology is used to manage and access its intellectual capital. Resources from this fund will be used for initiatives that support the sharing of the collective knowledge of our employees.

The fourth point is determining how to fund those areas of the department that are not adequately funded and to examine ways to move towards a funding paradigm that is more flexible so that we can adapt to a changing environment more rapidly.

Number five is improving the flow of information by enhancing the department's integrated financial management system and introducing an operational management information system. And the sixth point, the last one, is strengthening the department's accountability regime.

We are mindful that we must achieve tangible results with the resources made available to us, and to do this we will articulate at the outset the results we expect to achieve and how we will measure those results.

We know that to resolve the department's resource situation also requires us to introduce a series of complementary measures. These measures are intended to have a sustained and positive impact on the way the department operates in the future. For example, the department has introduced a number of efficiencies to respond to the increasing demand for legal services. A good illustration is in our competition law division, where our lawyers, who provide service to the Bureau of Competition Policy, are working with the bureau on a joint law practice re-engineering pilot project to rethink the delivery of litigation and advisory services in order to achieve maximum responsiveness to the Competition Bureau. Building on this type of work in a broader, more coherent way is a priority of mine.

The department is undertaking a fundamental review of the federal prosecution service and a government legal risk management analysis. In the latter case, the objective is to identify meanings for better strategic management of civil litigation and legal risk in general across the federal government.

We are improving our ability to measure and report on performance. For example, we are well along the road to implementing a case-management system. We are now gathering data that will not only support the more effective management of the caseload, but will also provide the comparative data to allow us to assess and report on case activity compared to the resources devoted to carrying out this work.

In order to improve the delivery of our services, we continue to seek alternatives to litigation, manage risk more effectively, and manage cases more efficiently. Improvements in our policy work will be achieved by tapping into policy capacity across the government and the justice system, including joint research and scanning activities, and participation in horizontal exercises with other departments and governments.

To conclude, I hope that this will give you a good overview of the pressures on the department to manage the law, manage our corporate infrastructure and our funding.

[Translation]

Maintaining a fair and effective system of justice is a continuous effort, it is never finished. This is all to the good, as the system of justice must always be able to respond to change so as to ensure that we are on the right road as a service organization, central agency and policy advisory department.

We must be able to function as a modern organization. We must develop our management framework and be on the lookout for new technologies so that we remain in a position to anticipate the challenges we must continually face in governing modern-day Canada as well as to adjust to and meet these challenges.

[English]

We are also expanding our analytical framework, drawing on a variety of disciplines, not just the law, to ensure that the policy and legal challenges addressed by the department can be managed within this multidisciplinary context.

I would be pleased to answer any questions that you have.

Senator Bolduc: In terms of legislation, did you or your department participate in the drafting of the clarity bill?

Mr. Rosenberg: Yes, we did.

Senator Bolduc: Did you participate as a group of lawyers in your ministry, or a group of people in the intergovernmental department?

Mr. Rosenberg: We played a role as lawyers in a variety of roles. There is certainly the area to which you alluded, the legislative drafting function. The Department of Justice, as you know, drafts all government bills.

Senator Bolduc: Including this one?

Mr. Rosenberg: Yes, including this one. We also participate in providing legal advice on all aspects of government policy, including pending legislation.

Senator Bolduc: Was it the same situation for the Nisga'a treaty?

Mr. Rosenberg: I would say it was the same situation for the Nisga'a treaty. Again, the Department of Justice, working in close collaboration with the responsible departments, will draft any legislation the government introduces. However, we also would have given advice in that context on various issues around the interrelationship between that treaty and other federal law, including the Constitution.

Senator Bolduc: Is it the same process for the regulations?

Mr. Rosenberg: With respect to regulations, yes, we have a group of experts. There is a slight difference, as between regulations and legislation. There is a group of expert legislative drafters; and there is a group of expert drafters of subordinate legislation or regulations. The regulatory drafters do some of that drafting; some of it is done in the first instance by lawyers in the legal services and reviewed by the regulatory drafters.

Senator Bolduc: In terms of the international situation, is it the same procedure, for example, for a free trade agreement with Chile?

Mr. Rosenberg: Yes. There, the situation is a little different, in that the Department of Foreign Affairs is one of the few other organizations in government that also has lawyers on staff practising law. The legal bureau in Foreign Affairs dates back to, I believe, 1919. We have a very good working relationship with them.

On the issue of trade, there are foreign policy issues in which the diplomats, foreign policy experts and lawyers have real expertise. There are also many occasions in domestic law where the Department of Justice has a comparative advantage.

We have put together a joint unit between Department of Foreign Affairs and Justice, alternating the head of that unit between the two departments. That has been working since not long after the Free Trade Agreement. It is a slightly different situation. We work jointly with our legal colleagues in Foreign Affairs.

Senator Bolduc: When you work jointly like that, that means that the government will receive advice from that unit. The government would not have the choice between your point of view and the point of view of Foreign Affairs?

Mr. Rosenberg: Where there are disagreements, there are forums for ensuring that those disagreements are dealt with. Simply because one lawyer may have a view, if there are different views or if the client has a view, there must be a process for ensuring that these things can be taken into account.

This raises an interesting issue around how to play the Attorney General function when you are providing advice. It may have been the case years ago where a lawyer would say, "I am the lawyer. This is my view, end of story. I do not care what have you to say."

The relationship of clients to professionals is changing. If you think about people in terms of the medical profession, people often seek second opinions and seek out alternative sources. The government's clientele is very sophisticated and knowledgeable about their business. In some cases, they know the law almost as well as the lawyers. There is much more scope for dialogue and discussion, to understand what is going on, before final legal advice is given.

At the beginning of my remarks, I referred to what I call "judicialization." If you think about it, if you are doing cultural policy, or something like that, in the trade area, you cannot do that policy without understanding the rules, in terms of culture, in the NAFTA or the GATT, trade and services, or international rules on intellectual property. In that situation, people act at their peril if there is not a close working relationship between lawyers and policy people right from the beginning of the policy development process.

The traditional, reactive role that lawyers have in a lot of instances is changed and good dialogue and partnership between lawyers and their clients is required.

Senator Bolduc: Is what you told us about cultural policy also true for administrative policy? For example, the Treasury Board produced a quasi-regulation concerning grants and contributions. Did your department participate in that?

Mr. Rosenberg: I personally did not, and I could not tell you today as a certainty that our lawyers did. We do have lawyers across the government. We are the only department that has representatives of its department sitting on the executive committee of every other department.

Our senior general counsel in the Treasury Board, Ross Hornby, sits on the executive committee of the Treasury Board and is generally involved in every major initiative of the Treasury Board. In the normal course, he would be consulted and would probably assign one of his lawyers to be involved in something as important as that policy.

Senator Bolduc: Is his role comparable to that of Ms Dawson at Intergovernmental Affairs, for example, in the drafting of the Clarity Bill?

Mr. Rosenberg: There must be a distinction, because Justice has sole responsibility for the drafting of legislation and regulations. It does not have the responsibility for the drafting of government policy statements. The role is somewhat different. The role would be similar to the extent that, where there are legal issues that need advice, advice would be forthcoming. However, the ultimate product would not be the product of Department of Justice drafting. The Department of Justice does not draft every document the government issues. It drafts legislation, regulations, and contracts, for example.

Senator Bolduc: When Madam Dawson is giving advice to Minister Dion, is she speaking as a representative of the Justice Department or as a management employee in the Department of Intergovernmental Affairs?

Mr. Rosenberg: Madam Dawson is an associate deputy minister in the Department of Justice and when she participates it is as a member of the Department of Justice.

Senator Bolduc: Could you clarify the situation in terms of ethics? I do not refer particularly to her ethics, but I was trained and worked in a period when civil servants did not express themselves on policy issues, particularly those under political debate. Madam Dawson wrote an article concerning the secession reference.

What do you think of that?

Mr. Rosenberg: I have not read that article for a long time; it is very difficult for me to give you specific comments. My recollection is that it was in the nature of a case comment, which lawyers in the private sector and in government have been doing for a very long time. It is quite common for lawyers to write an analytical commentary on a decision that has been issued.

Senator Bolduc: They distinguish between when they are speaking for themselves as lawyers and members of the bar and when they are speaking as civil servants.

Mr. Rosenberg: Yes, I think that is right. There is also a question of whether one is talking in one's official capacity or in one's personal capacity.

Occasionally, you will see an article written by a Department of Justice lawyer with a disclaimer at the bottom saying that the views are the views of the author and are not intended to represent the views of the department or of the Government of Canada.

Senator Bolduc: Is that not, in your opinion, risky, particularly on hot partisan political issues?

Mr. Rosenberg: I am hesitant to answer your question. I could answer it generally, but that would imply that I am saying that what she did in relation to the secession reference was of that nature, and I am not sure that it was. Since I do not have it before me and have not had a chance to review it recently, I am reluctant to get into a debate with you on that issue.

Senator Cools: Chairman, perhaps Senator Bolduc could provide us all with a copy of the article to which he refers.

The Chairman: I saw the article. It was written after the advisory opinion came down from the court but before the bill was tabled.

Senator Bolduc: It is my understanding, Mr. Chairman, that lawyers have a special category in the public service. They are not like other people. We do not hear deputy ministers discussing monetary policy, except when they appear before committees or such things.

The Chairman: We occasionally see articles, written by diplomats, foreign affairs people, or trade people, with a disclaimer that the article does not necessarily reflect the views of the department.

Senator Bolduc: The fundamental rule for higher-level civil servants is confidentiality. If they express themselves publicly, how can they attain the confidence of everyone? The strength of an impartial civil service is that they are recruited on merit and they keep their mouths shut, except to their minister. They can tell their minister that his or her actions are foolish, and they must do that; they must advise their minister. However, if they speak publicly, they become political actors in the political arena with all the risks involved.

Senator Cools: Perhaps, Mr. Chairman, we could develop this point a little more. This is not just a case comment, as Mr. Rosenberg is suggesting. There may be legitimacy to case comment, but the case in question is of a highly political nature and of a deep political context. I do not know when this article was produced or written, and I am not certain of the content, but I shall certainly look at it.

It seems clear to me that the government was seeking that opinion in respect of some future action that it might wish to take. It would be interesting to look at the current situation. We have a bill, which would have been drafted by the department. One of the lead players in drafting that bill and giving advice to the government has also written about the foundations of the bill. All of this seems to be antecedent to the bill coming to Parliament. I am not too sure of what the article says. I believe that Senator Bolduc's principles stand, but we should take a good look at the article.

The Chairman: I saw it. It is a comment on the Supreme Court advisory opinion.

Senator Cools: As Senator Bolduc has raised, not only do many civil servants seem to be making these commentaries, but judges seem to comment daily in the newspapers. One cannot open a newspaper on any day in this country without seeing some commentary by judges on what I would consider to be public policy issue.

Perhaps at a later point in this meeting Mr. Rosenberg can respond to that. I know that it concerns him deeply.

Senator Finestone: Mr. Rosenberg, most of my questions deal with privacy issues, which is my area of interest. What is the time frame for a review of the Privacy Act?

Mr. Rosenberg: We are looking at it now, and the minister will make an announcement in due course.

Senator Finestone: What does that mean?

Mr. Rosenberg: That is up to the minister. I assume that she will make an announcement on her intentions with respect to privacy toward the end of the summer or in the early fall.

Senator Finestone: Did you see the Sunday New York Times?

Mr. Rosenberg: No, not this week.

Senator Finestone: I suggest you look at it. You will see that Mr. Gore and Mr. Bush consider the area of privacy to be one of the most important areas of concern.

Mr. Rosenberg: There is no doubt that changes in technology, the advent of the Internet, the ability to access information, and the ability to aggregate information from different sources have qualitatively changed the nature and acuteness of issues around privacy. I agree with that, and we are mindful of that and are looking at it. I do not want you to have the impression that we think this is not an important issue. We do think it is an important issue. The question is how to proceed.

Senator Finestone: When Bill C-6 on the issue of e-commerce first saw the light of day, it was considered to be privacy legislation. Privacy goes far beyond data matching, data collection, and the aggregation and use of data, although that is absolutely vital to informed consent.

At that time, the minister was asked what the intent was. For the last five years, the Privacy Commissioner has been asking that question. We did a study in the other place relating to privacy and where we draw the line. That study found that a charter of privacy rights was needed and that a serious review of the Privacy Act was required. We got a response from the minister who indicated that the matter was being thought about.

We have been thinking now for four years. In the meantime, the privacy of individual Canadians is being abridged. In view of the situation respecting the HRDC files, we were not out of line when we said that this needed to be done. May I ask you to urge the minister to proceed post-haste on this particular matter?

I should like to turn to the subject of the firearms control legislation. I understand that there are some serious concerns with respect to its administration, that it is irregular across provinces. The complex physical and technological interconnectivity of this program has raised questions about the amount of highly detailed, sensitive personal information firearms officers need to meet their obligations under the Firearms Act

Second, there is the issue of the treaty rights of aboriginals to use their firearms without registration. How is the ministry looking at this particular issue?

Mr. Rosenberg: Let me make one quick comment and then I will ask Ms Flumian to join me at the table. She is the chief executive officer, since February, of the Firearms Centre.

On the privacy issue, the Privacy Commissioner undertook a review earlier this year. We have been cooperating with him in that review. We look forward to receiving his observations and recommendations, and will then make an assessment of what action needs to be taken.

With respect to the other issues around the administration of the firearms legislation, I would ask Ms Flumian if she could comment.

Ms Maryantonett Flumian, Chief Executive Director, Firearms Centre, Department of Justice Canada: Senator, in the matters involving privacy we are concerned that we maintain the integrity of the files and the information that we are collecting. We do collect personal information on the basis of making public safety determinations. It is important to collect such information. It is also important that the information be treated with the kind of concern necessary to protect the privacy of Canadians.

Having said that, we have been working closely with Privacy Commissioner, since the inception of this program, to deal with the kinds of issues raised by Canadians and the Privacy Commissioner and staff. In addition to working as closely as possible vis-à-vis the way our forms are structured, the manner in which information is collected, and the kind of safeguards that are built in, we have also seconded a staff person from the Privacy Commissioner's office who works with us on site. Over the last few months, we have been going through changes to try to simplify and streamline the kind of forms that we are putting out to make it more user-friendly for Canadians to follow the processes and procedures that are set out in the legislation.

As the deputy mentioned, the Privacy Commissioner has been doing an informal audit over the course of the last few months. We have been working closely with the staff and are looking forward to the results of that audit. If there are any issues that arise at that point in time, we will work to the best of our ability to deal with them.

With reference to the application of this federal piece of legislation across jurisdictions, in October 1999 we held a conference with all the provinces and territories in terms of establishing a personal information protocol to cover firearms initiatives and all the aspects of that.

That protocol has been out for consultation with all provinces and we are trying to adopt, if not a uniform approach, at least one in which the intent is uniform in how we deal with that information and how it inter-relates with provincial privacy legislation where it exists.

Senator, you also asked a question about aboriginal issues. We are working at understanding the needs and other requirements of the responsibility we have in our relationship with aboriginal peoples.

We have been working with many aboriginal communities across the country, both at national and local levels, including First Nations, testing various pilot projects in terms of how we would work across aboriginal communities to ensure that we meet the requirements under the law and also take into account the specific set of circumstances. As you know, there are different provisions within the legislation for aboriginal.

Senator Finestone: Are treaty rights addressed in the legislation?

Ms Flumian: We feel they are, yes.

Senator Finestone: That is not the view of First Nations in Quebec, the Cree.

Ms Flumian: We continue to work with them through the Chief Firearms Officer in Quebec and through our office here in Ottawa to ensure that the dialogue continues and we try to meet the concerns.

Senator Finestone: It is not a dialogue. There is a fundamental principle and perhaps, Mr. Rosenberg, you could recognize that we are talking about treaty rights. Do we respect treaty rights or do not we respect treaty rights? That is a serious issue. It is even a serious issue when are you looking at Bill C-20. What responsibility do we have, and at what level do we engage ourselves with the issues of aboriginals? I remember the amendments to the Indian Act, in 1984-85, it was an issue back then. Here we are 15 years later looking at abridging the fundamental rights of aboriginals.

Mr. Rosenberg: It is certainly not our intention to abridge anyone's fundamental rights. A treaty, as any other legal document, may be open to varying interpretations. The best way of getting at what the intention was, in the first instance, is to try and engage in a dialogue in good faith between the parties to do that. If that fails, and all too often in the recent past unfortunately there has been a tendency to take a lot of issues, and especially aboriginal issues to court for decisions. The courts tell us to sit down and work it out where you can. We are trying to do that in the first instance and that is what the allusion to dialogue was about. We realize it must be a dialogue in good faith built on trust. Not every treaty is as crystal clear and unambiguous in meaning as we would like it to be.

Senator Finestone: If you are to look at the issues of the Inuit and aboriginals, in all the different and various tribal forms, you will come up with one policy, not one depending on how you wrote the treaty. Are you going to have different laws for different aboriginal tribal groups in different parts of the country depending on the treaty rights?

Mr. Rosenberg: There are different aboriginal and treaty rights throughout the country. There are different agreements that were entered into historically and different modern day agreements.

While one wants to have a broadly consistent legal framework within which to look at these things, that is, by respecting aboriginal and treaty rights, by trying to build a relationship of trust with the aboriginal peoples, that was the thrust of the government's response to the Royal Commission on Aboriginal Peoples, that the particular response in different parts of the country, given that we are dealing with quite different circumstances if you are looking at Inuit in the north or if you are looking at an aboriginal reserve in the suburbs of Vancouver, the economic and social situations of those two groups will be quite different and they may call for different responses based on different historical and modern day realities.

Senator Finestone: Are you examining the subject of the SIN number? This is at least the third time the other place has addressed the issue of the SIN number and what needs to be done about that.

I really want to go to the question of the birth and death research that is being done through the CCRA and the child tax benefit. If you would deal with the SIN number first, perhaps it fits into how we are researching and finding out who died and who is married and how we are to allocate funds.

Mr. Rosenberg: I have asked Elizabeth Sanderson to come to the table. She is our senior general counsel, public law policy section, and is responsible for access and privacy reform. I will ask her to answer on the status of work with respect to the SIN number.

Ms Elizabeth Sanderson, Senior General Counsel, Public Law Policy Section, Department of Justice: The administration of the SIN number is the responsibility of Human Resources Development Canada. We could get specific details on administration of the SIN number from HRDC.

Senator Finestone: I am thinking about it from a legal perspective, from the perspective of justice for all Canadians.

Ms Sanderson: For the purposes of the reform effort, we are very much aware that this is an area of great concern to Canadians and to the Privacy Commissioner. It will be part of the reform that the minister will be announcing some time after the summer.

Senator Finestone: Would that be part of an omnibus bill, or would it be dealt with under privacy?

Ms Sanderson: The SIN number is a personal identifier. It being personal information, it is currently an element of the Privacy Act. When we look at reform of the Privacy Act overall, the use of the SIN number would be very much part of that.

At the same time, Bill C-6, which was recently passed by Parliament, deals with personal identifiers. We are hoping to learn over the next while how Bill C-6 makes a difference.

Senator Finestone: It seems to me that it is a personal identifier for business practices.

Ms Sanderson: Yes, but I understand that part of the problem is the use of the SIN number for a variety of uses for which it was not intended. Bill C-6 deals with personal identifiers, which the SIN number is. We hope that Bill C-6 will go some way toward dealing with the use of the SIN number in the private sector. We will see how that unfolds over the next while.

However, the use of the SIN number in general would be part of our reform of the Privacy Act in the public sector.

Senator Finestone: I have serious concerns about the payment of child support under the Divorce Act. The allocation of support payments was determined by a special committee on justice which toured Canada, heard from over 185 witnesses and groups, and concluded that the mechanism being recommended by the Government of Canada through the Department of Justice was inappropriate and unfair in many ways.

It did not take into account the partnership within a marriage. One can say that both mother and father have responsibilities for children, be they separated, divorced, or still married. Given that, they should share equally the responsibility for financing their children.

We do not take into account the income of the custodial parent. We only take into account the income of the non-custodial parent, which is totally unfair. We have brought this to the attention of the minister. The mechanism that was used to determine the amount of support payments by non-custodial parents is wrong.

Do we have to wait until 2002 for a bill that will change this? After all the work that has been done over so many years, the mechanism for the determination of the quantum of the payments should be reviewed immediately and changes should be made.

The other issues, although important, are not as vital to the wellbeing of the children. We are not serving the children well with the position taken by the government through the Department of Justice.

Is consideration being given to a review of at least the allocation of those funds?

The Chairman: We opened a study on the child support guidelines in the Standing Senate Committee on Social Affairs, Science and Technology. In our first report, we suggested that they should not necessarily wait for three years but rather move in those areas where the need to move has been identified.

The committee also undertook to resume the study when the new session started, but the chairman moved on, as did others who were interested in the topic. I do not know whether Social Affairs will take it up again. Perhaps the department can flatter us by telling us that someone there has read that report.

Mr. Rosenberg: We have reviewed the child support issue and will be finalizing that by May of 2002. We are examining custody and access issues at the same time. It would be desirable to move sooner on custody and access. However, we must do this in concert with the provinces. Our jurisdiction is divorce, and we have only one piece of the puzzle on custody, access, and child support. There must be at least an attempt at some congruence in terms of policy on child support, custody and access in cases of separation but not divorce. The way in which our Constitution is set up, there are different levels of responsibility, with the provinces having responsibility in the non-divorce cases.

The Chairman: Have most of them not signed on to the federal child support guidelines?

Mr. Rosenberg: Yes, most of them have, and we are continuing to talk with them. If Senator Finestone would like us to move more quickly on this, I will convey that message to the minister.

Senator Finestone: She is not unaware my feelings in this regard. I would appreciate that very much.

I understand the complexity of divorce and I think the minister was right in that regard. However, I do not believe that one action contravenes the other. They are not mutually exclusive undertakings.

With regard to the support guidelines, it must be taken into account that sometimes the custodial parent earns more than the non-custodial parent. The system is not working, and it only angers the non-custodial parent and negatively impacts the relationship with the children, which is not its purpose. There are children living in unhappy circumstances because we have not adjusted the philosophy behind the guidelines, which can be done without interfering with federal-provincial guidelines.

I would appreciate you moving on that aspect as quickly as possible.

What are the data matching proposals on births and deaths with regard to Canada's child tax benefit database? Are you familiar with what is being done in that area? We are talking about the small percentage, under 5 per cent, of people who do not announce that their child has died. They might have access to benefits under the child tax credit to which they are not entitled. I do not think that examining all the Revenue Canada files is appropriate.

If you want to get further information on this and understand why I am upset, read pages 92 and 93 of the commissioner's report. This is not the first time we have talked about this. The commissioner says that with respect to the use of birth information, the Privacy Commissioner is not convinced that 5 per cent of parents who do not apply for the benefit deserve such an intrusive invasion of their privacy, particularly when the institution already has an extensive public awareness process in place. The office sent a preliminary review of its proposals to the Revenue agency and is awaiting the Revenue agency's response.

This is once again massive interference into information which we have, by law, been obliged to supply to Revenue Canada when we file our income tax form. I believe it to be a misuse and a break of the trust of confidentiality of information that you file with your income tax form.

I would like you to consider that. I do not expect you to have an answer right now, but I would like you to write a letter to our committee chairman with some information on this. I find the whole process very invasive in so many areas. It is quite scary.

Mr. Rosenberg: This is something that we obviously want to look at in collaboration with our colleagues in the Canadian Customs and Revenue Agency, but we will get back to you.

Senator Finestone: While you are doing that, would you mind asking them why they have now signed over 300 protocols with different agencies, both in the private sector as well as the public sector, to share data and information? Do you think that is right? When you take off your hat as deputy and you put on your private citizen's hat, would you feel, as I do, that Big Brother is a little too invasive?

Mr. Rosenberg: When you invite me back as a private citizen on this, I could probably comment. I do not mean to be flippant. As I said at the outset, there are some very serious, important issues around the information that citizens provide to government, how that information is used within the government, and how that information is shared by the government and other players. If one is doing a review of our privacy policy, then those issues would be an important element of that review. I am taking note of your concern.

There are other players in the system, like the Revenue agency, that would need to be involved. Before I comment on an agreement that another agency of government has entered into, it is only fair, I think, that I see those agreements. I cannot comment on agreements in the abstract. I take your point, and we will pursue it and get back to you.

Senator Finestone: It would seem to me, Mr. Rosenberg, that the whole question of justice within Canadian society is the responsibility of the Minister of Justice. I do not care which ministry is abridging my right or is interfering in my fundamental right to be "left alone." I do not think that one can hide behind the fact that that is a responsibility of Justice in our society. Whoever administers it has Justice people in their structures, and I would hope that there would be an oversight of these invasive policies.

I will tell you how the selectivity of this process impacted on work I was doing. We have a serious problem of parental default on child support. People leave the jurisdiction where the family lives and do not pay child support. In the mid 1980s, we asked if there was some mechanism by which these people could be located. We recognized that, if they are paying income tax, someone must know where they are; and if they are using their SIN number, someone can find them. We were told that we could not seek them out by using the SIN number or information found on an income tax form. However, that can be done when it involves the Government of Canada's financial obligations on benefits and pensions. It can be done when we are dealing with the question of child support guidelines and child support payments. It cannot be done, however, in an effort to locate a person who has disappeared and who has an obligation to pay child support even though that family may be living below the poverty line and depending on government programs for survival. I believe we have forgotten an area that is just as important, and that is the missing non-custodial parent who has obligations. Locating that person is considered to be a big invasion of privacy.

You have now have 300 undertakings by the Revenue agency to share information for all kinds of business undertakings. Human life, quality of life and children in need are not important, but business is important.

Mr. Rosenberg: Let me reiterate that I agree with you that it is important to consider these issues. The nature and impact of these issues is changing. As with any such emerging issue, there will always be a question of balancing interests. On the one side, the privacy interest is very important, but there is a question as to what extent that is an absolute good as opposed to other societal interests like the ability to find people who are delinquent in their child support payments and what mechanisms one might put into effect.

As you point out, there is the question of consistency across the board. All of these factors must be considered in a good comprehensive review. In advising the minister on the terms of reference of what we might do, we will take your comments into account.

Senator Finestone: Thank you. There should be exceptions. I would be the first to agree with you that public policy is important, and you need information. If we did proper gender analyses you would see how effective those could be. You certainly need to have public information, but it has to be with informed consent.

The Chairman: Before I turn to Senator Stratton and Senator Cools, I want to say something about firearms registration. I was tempted to ask Ms Fumian, now that she is there, if she does not miss the relative tranquility of Fisheries and Oceans. She was there during some very difficult times.

This is a loaded question, Mr. Rosenberg. I admit it right off the bat. If there is a suitably factual and non-political comment you can make, I would hope you could do so.

When has it ever happened in this country that, on a major initiative under the criminal law power, which is what we are talking about here -- a major criminal law initiative -- the federal government has been taken to court by a whole bunch of provinces contesting the constitutionality of the law and, perhaps more seriously, saying that they will not administer that law? That is not the way we have done business in this country. What attempt was made to come to some kind of agreement with the provinces in this field?

Mr. Rosenberg: There were discussions with the provinces over some period of time. You must recognize that, because of the political process and the differential timing of provincial elections, the views of a number of key provinces changed. When the government undertook the initiative there was, and still is, very strong support among Canadians for the importance of firearms licensing and registration. Recent polling shows something like 75 per cent of Canadians are supportive of the legislative initiative.

Over time, the political stripe of some of the provincial governments that were in support changed, but the government started off with a fairly strong public consensus and significant support among the provinces. I am not sure that I can think of another example, but I think there are probably plenty of examples in the whole history of division of powers disputes before the courts in this country, where cases have been brought by the provinces with respect to initiatives that the federal government brought into force. In fact, if the initiative is not in force, there is no case to bring.

Without being able to give you an example, my instinct tells me it is not that unusual.

The Chairman: Changes in the criminal law, where you would normally expect the provinces to administer your law, are usually worked out, are they not?

Mr. Rosenberg: Yes. By and large, I think this one was worked out as well. In those cases where the province does not want to administer the law, there is federal administration of the law.

The Chairman: How many provinces are administering the law?

Mr. Rosenberg: I will ask Ms Flumian to come back to the table to answer that question.

The Chairman: This is where the big money is. This is what accounts for the big increase in funds that you require, is it not, namely, the fact that you must administer it yourselves?

Ms Flumian: It definitely is one of the areas. We administer it directly in Alberta, Saskatchewan, Manitoba, and we have an administrative arrangement to administer it in Newfoundland, although they are not an opt-out province. We also administer directly in Nunavut, in the Northwest Territories and in the Yukon.

The Chairman: It is being administered by the provinces in the case of which provinces?

Ms Flumian: In the case of British Columbia, Ontario, Quebec, New Brunswick, Nova Scotia, and Prince Edward Island.

Senator Stratton: Senator Finestone spoke about the intrusiveness of government policy, and Senator Murray also alluded to it. Is there ever a discussion with respect to policy about the intrusiveness of some of the legislation that has been enacted. For example, the HRDC data bank is a most interesting topic. The gun legislation is perceived to be very intrusive, rightfully or wrongfully, in some people's minds.

I am concerned about the growing public perception regarding this intrusiveness of government imposing on Canadians whatever the government decides to impose, for example, gun legislation or the HRDC data bank. It is like living the novel 1984. That may be an extremist view, but it is forcing people into a position where they feel that they must take a stand, whereas before they did not necessarily feel that way. This intrusiveness is really starting to bother many, many people. I guess you see a counter reaction now out there in the public to this. Have you had discussions with respect to that?

Mr. Rosenberg: I will answer that generally, because I am not sure that I can answer with respect to specific examples since I was not in my current job when the firearms legislation was put in place, nor was I in HRDC when the longitudinal survey was put in place.

As the chairman well knows, in discussing government policy, there is always a balancing of interest that takes place. On firearms, for example, there is the issue of the balance between protecting public safety, the means chosen to protect public safety, the cost in terms of licensing, registration, et cetera, and whether or not that balance the right one.

I do not want to be pedantic and preach to you about political science -- I will try not to do that -- but there are some checks and balances in our system. That starts with what happens within the government. Increasingly, there are consultations before any major legislative initiative. We are talking much more about citizen engagement. People are involved and have an opportunity to express their point of view. That point of view is reflected in government caucuses, in Parliament, in cabinet and in cabinet committees. It is also reflected by third party agencies that are independent from the government, like the Privacy Commissioner, the Access to Information Commissioner or the Auditor General, who are there to point out when they feel, as Mr. Phillips did recently in his report, that certain things may be out of kilter. Those reports are picked up and have quite an impact.

I cannot answer your question with a "yes" or a "no," but there is quite a firmament in the development of public policy in this country. It is in no way, shape or form the exclusive domain of any one group. There are a multiplicity of players. Years ago, Allan Gotlieb described the U.S. political system as a football field with 50 teams on it. Canada is starting to look like that as well. It is a more open process and different points of view are being brought to bear.

In the final analysis, in many cases, people have chosen to turn to the court where they feel they are not getting satisfaction through the policy process. We are seeing that with a number of groups.

That is probably the best I can do on your question. To pick up on some of the points that Senator Finestone made, privacy issues are very much on the public agenda these days. I would think that privacy interests will be weighed even more heavily than other public interests in the balance.

Senator Stratton: I thank you for that. Nevertheless, it seems almost, ad hoc, governments do what they do, independent of talking to each other. As a result, we are seeing more and more intrusion in the lives of people. That is the perception that is building.

I should now like to ask Ms Flumian about firearms. At the end of this year, gun owners will require a firearms certificate or, in 2001, they will be unable to buy ammunition for any gun or weapon. What is the next stage of the process, since there has been a tremendous reaction to Bill C-69? What is to prevent someone from buying and stockpiling lots ammunition this year and deciding not to get the certificate? Do you track that, or do you just accept that a number of people will stockpile ammunition, which is inherently dangerous?

Ms Flumian: You are right. Gun owners will require a licence by January 1, 2001, in order to be in legal possession of a firearm.

Senator Stratton: Did you say 2001 or 2000 for an FAC?

Ms Flumian: It is not an FAC. The person will actually need a licence. The FAC is the current regime. There are two ways to be legally in possession. First, if you are currently in possession of an FAC, the life of which extends beyond January 1 of this year, that will allow you to maintain your legal status. Second, before it expires, you will have to apply for a licence. For those not currently in possession of FACs that go beyond January 1, they will have to be in possession of a licence before January 1, 2001 in order to be in legal possession of the firearm and in order to purchase ammunition.

You talked about the process beyond that. I do not know if you are referring to registration in that, but you will have to, according to the law, have registered your firearms by January 1, 2003. Our focus right now, as you may have noticed, and rightly so, is on the first legal deadline in the bill which is for licensing, which, as I said, is January 1, 2001.

Senator, in our dialogue over our last few months with firearms groups, the provinces, chief firearms officers who administer the legislation on our behalf across each of the provinces and territories, and all the people we have been talking to, it is fair to say that Canadians do believe in the rule of law.

What was unknown to Canadians until fairly recently is the actual deadline, and that is January 1. Therefore, you may have noticed that we have engaged in a fairly large campaign to try to reach as many Canadians as possible to tell them that this is the law and that they are required, in order to purchase ammunition, to be in possession of a licence. All our efforts are going into this matter at this point.

I will have to get back to you on whether there is any tracking of the sale of ammunition. Certainly, that is not our priority right now. Our priority is to reach every Canadian we possibly can, to inform them of the requirements under the legislation, and to hope, as Canadians generally do, that they follow the rule of law.

Senator Stratton: Turning to page 9 of the Department of Justice Estimates, the forecast spending for Budgetary Main Estimates was $540.5 million for 1999-2000; but that figure jumps to $657.5 million for 2000-01. Why is there such a jump? It then drops back down in 2001-02. Has that to do with the firearms registration requirements?

Mr. Robert Bourgeois, Assistant Deputy Minister, Corporate Services, Department of Justice: Honourable seantors, the principal reason for the increase from $540.5 in 1999-2000 to $657.5, in 2000-01, is that the operating budget of the department has increased by $90 million. That was the amount that Mr. Rosenberg referred to in his opening remarks, which stems from the assistance the department receives under the program integrity or the reference review.

Senator Stratton: Sir, what you just said, what does that mean? It is legalistic gobbledegook. It does not mean a thing to anybody sitting around this table but you.

Mr. Rosenberg: We received $90 million in the budget this year. The reason we received $90 million is that Justice, along with eight or nine other departments, was the subject of a review carried out jointly with the Treasury Board, to determine whether the money we have to carry out our activities is sufficient.

I cannot speak to all the other departments, but what I said in my remarks, and I will reiterate briefly, is that we have seen a tremendous growth in the demand for legal services so that, in trade cases, for example, with chapter 11 of NAFTA, the ability of private plaintiffs to bring cases, we have seen an increase in 200 to 300 per cent. While the numbers are not huge, each one of these cases is quite complex. Thus, we need more lawyers. If we keep the same number of lawyers working on these, we will kill our lawyers, quite frankly.

We need the resources to increase the number of people to do the work because there is more work. There has not been a huge increase in salaries, and that is one of the things we are concerned about. Perhaps you saw articles recently in The Globe and Mail and The Washington Post. The Globe and Mail reported that first-year associates working at some Bay Street firms are making $88,000 a year. We cannot compete with that. We must find other ways of attracting the best and the brightest, and we do have some other ways.

It is a similar phenomenon in the U.S., where the Department of Justice and other federal agencies have, for a long time, done well attracting young, bright students out of law school. However, with competition from Wall Street firms and increasingly from Silicon Valley, there is so much money at stake for first-year lawyers, well in excess of $100,000 in the U.S., that the U.S. agencies cannot compete either.

There is an issue on salary that we must look at for certain types of work where there is a high demand in the private sector, and we are in heavy labour market competition.

The $90 million is to deal with workload increases for lawyers, for policy-makers. Given the number of issues we have just discussed here today, we want to ensure our people are out in front. We need to develop more of a core policy capacity in the department to do that.

Finally, you must look at the support of the department. If the two business lines, law and policy are the house, then the house sits on a foundation, and the foundation is the administrative support, the financial system support, the informatic support and the human resources support. That support was cut over the years so that you have an infrastructure that might support a cottage when what you are living in is a very large house. We have also used some of that money to bolster the support services to the department.

Senator Stratton: If this year's operating costs are $90 million, why does that item disappear next year? It virtually drops from $657.5 million down to $480 million.

Mr. Bourgeois: I will try to explain that. If you go down to the item under "Adjustments," and you follow that through to the current year, $65.2 million, the $90 million then appears in the $222-million figure. It just drops down.

Senator Stratton: You have just put it on another line. It is a constant that carries forward?

Mr. Bourgeois: Yes, it is a constant.

Senator Stratton: I would like to go to page 14 of the same Estimates. There is an item called, "Client Driven Services." I would refer to the second paragraph which states:

In order to ensure that services provide the best value at the most appropriate cost, the Department of Justice's partnership with clients features a joint planning process, shared responsibility for the costs of legal services and shared accountability for performance and for the allocation and use of resources.

You are virtually permeating every department. That is an amazing amount of power.

Can you give us an example of how you arrive at a shared cost? If a particular bill falls under the purview of a particular department, I would think the costs related to a bill would be absorbed by that department. Can you give us an example of a shared cost?

Mr. Rosenberg: I can try. First of all, generally, this is not a strict science. You talked about the cost for a bill. Our department pays for the drafting. We have lawyers who provide drafting services.

For example, we might draft a bill to establish a series of new criminal offences. We may decide to aggressively go after organized crime, immigrant smugglers or whoever. We will set up processes, et cetera. As a result of the passage of that bill, we may need to hire another 10, 20 or even 100 lawyers, and a certain number of new judges.

We have been trying to encourage the government to recognize the costs to the justice system of amending legislation. People speak of the spending power, and there are many controls on the spending power, that is, when we spend and when we do not, but we also spend law.

If you look across the aggregate of legislative activity of the government, over the course of a given year, we will have created any number of new regimes, new administrative tribunals, new bodies, and new rights, and someone must administer all that. The people representing the Government of Canada in those cases will be Department of Justice employees. If they are doing that in addition to everything else, there must be recognition of that and some provisioning for the costs that that will involve.

I would go further. If there is a demand for, say, a new tribunal to be set up, that must be considered in light of all its administrative infrastructure. If one is putting into place a new regime, one must look at enforcement costs. There are implications for the police, whether federal or provincial, depending on the regime. There are implications for training for all parts of the justice system, or the system that is administering it. There is no point in putting in place a new regime that may be, on paper, the most literate regime in the world if the people administering it do not understand what you are trying to do. That goes to judicial education, the education of lawyers, and the education of people in the enforcement business.

Increasingly, we try to ensure that all of these items are being captured when a government department is articulating or implementing or making recommendations to implement policy.

Beyond that, we sit down on a regular basis with departments in the government and have discussions, at least once a year, around what their priorities are and what our priorities are, and try to come to some meeting of the minds. Given that we will never have an infinite number of resources to do everything, we must make choices. If there are choices to be made between moving aggressively on litigation in a particular area, or choices to be made in becoming very active in drafting new sets of regulations, or choices to be made in some other area of endeavour, we need to do that jointly so that we will all have our eyes open to what we are doing so that we are comfortable managing the risk. After all, you are always managing risk. With client-driven services, the key is the ability to have senior members of the client departments and of the Department of Justice sit down jointly and go through an understanding of how that department is using law and the justice system, and how we can contribute.

Senator Mahovlich: If I want to borrow a gun because an animal is in my garden, if this new rule comes in, I will not be able do that. Say the gentlemen down the road has a licence and shotgun and I want to borrow it to shoot some groundhogs or squirrels around my property, what is the law in that circumstance?

Ms Flumian: I will have to provide some more advice later, because it is a complicated piece of legislation. There are provisions by which you are allowed to borrow, depending on whether it is a family member or whether it is a firearm whose ownership is held in common, or so on. As to the situation you describe, I will get back to you on all the specifics around that and provide you with a couple of examples. I will try to let you know the circumstances under which you may borrow and the circumstances under which borrowing is not permissible.

Senator Mahovlich: There are details to this?

Ms Flumian: Yes.

Senator Cools: I am aware that time is moving along so perhaps I can put out my three questions. The first follows on Senator Finestone's line in respect of child support and child custody and access. Senator Murray was able to articulate very clearly that the Senate's Social Affairs Committee submitted its first report on the question of the child support guidelines.

Perhaps Mr. Rosenberg can help me understand why it is that, after a decade of separating child support and custody and access, the department has now joined them and will only review the one with the other. For the past many years -- and I have been sitting here quite a few years -- the department has always said that they are two different issues. In 1997, as Mr. Rosenberg will probably remember, the Senate had a lot of difficulty with Bill C-41, but the bill got through the Senate with some difficulty. Honourable senators may recall that the opinion of the Senate then was that the bill was deeply flawed. The interesting thing is that, in that deeply flawed bill, just three years ago, one was introducing a regime where the government was repealing the original provisions of the Divorce Act which imposed a mutual obligation on both parents to support the children, and replacing them by an obligation only upon the non-custodial parent. With the advent of the special joint committee's report, why would the government join the two?

My second point on child support is that the government, the minister, chose the date of May, 2002. In all my years here, I have never seen a minister, in a response to a committee of Parliament, give an anticipated date for action as a date beyond the minister's own watch. To me, that is incomprehensible. Perhaps you could tell me the real reason why May, 2002 was chosen.

My third point on custody and access has to do with this awful issue of the lifting of passports and the removal of licences. I would like a report on that scheme. I thought it was quite pernicious. If one is going to take a passport for disobeying a court order for child support, one should also take a passport for disobeying a court order for child custody and access. Could you give me a report on that? If you do not have time today, I would appreciate a report in writing. I would like to know how many passports and how many licences have been lifted and, most of all, the impact on the child support payments that those actions have had.

Those are my first set of questions. Then I have some more.

Mr. Rosenberg: With respect to your last question, we will have to take that under advisement and give you a considered answer, because I could not do justice to it here today.

With respect to the combining of child support and custody and access, while I cannot speak for what was done in the past, I would echo some of the discussions we have had here today about the need for integration and coordination. These issues are affecting the same population. I am not sure that one can completely separate them. It would be an artificial separation. The same group of people who are dealing with custody and access and the condition of children following separation and divorce are also dealing with the economic conditions of children following separation or divorce. My sense is that it makes more sense to look at the entire system and how it works, rather than come up with prescriptions for component parts of that system without thinking through what the implications may be for the other part. That is the best explanation I can give you for why they should be combined.

With regard to the date, May 2002 was set as the date that the report on the comprehensive review of child support guidelines had to be tabled in Parliament. The minister has always said that that was the outside date, that if it could be done more quickly it would be. However, I reiterate that this is an area in which we must work in close collaboration with provincial governments. It would be to everyone's advantage to have a harmonized regime rather than having completely different applications depending on the nature of the end of relationship, that is, divorce or separation. The impacts can be similar.

Senator Cools: I appreciate that and I am sensitive to your position. It is only that that is exactly what your predecessor told us on the 1997 child support bill when we said that the bill should not proceed without looking at the total picture. He said the exact same thing as you have said, that it had to be consonant with all the provinces. The responses from the department are consistent and repetitive. It is always that you are harmonizing with the provinces. However, in the life of children, five years is an eternity. This continuing delay is unconscionable.

In 1997, the Senate told the then minister and your predecessor that that bill was deeply flawed. That was a backward bill. Five years later, we still cannot get it reviewed. In the interim, we have gathered new compelling evidence on custody and access. Yet, we must wait.

What consultations could possibly take five years?

Mr. Rosenberg: We do want to ensure that, to the greatest extent possible, we are operating a harmonized system with the provinces. We are currently in the process of doing that. As the minister has said, if we can conclude those consultations and reach agreement more quickly, we will be able to deliver sooner. That was an outside date.

Senator Cools: Some of these are political questions that we can take up with the minister. I understand your position.

The Chairman: When we dealt with the support guidelines, the general feeling among witnesses and our own members was that they needed a few more years of experience under their belts before they could reach any conclusions about how it was working.

Senator Cools: It was at least a year ago that that report was made, and it is now three years since these guidelines were implemented. With all due respect, the overwhelming opinion across the country is that they are in need of correction. I have not yet heard positive reports on it.

Judges are labouring under the burden of these guidelines. They say that the guidelines are not what they were intended to be.

I understand the position that you are in, that you are not the political person who is responsible for this, but I wish to put on the record that the situation is a national crisis.

As an example, in the last few weeks alone several professionals have come to my office to speak to me about the problems they are facing due to these guidelines. These gentlemen are paying huge amounts of child support. I learned last week that another one has committed suicide. We have placed enormous and unconscionable burdens on the backs of citizens. I urge you, Mr. Rosenberg, to take back the message to the minister that this matter is urgent. It is not the sort of thing that we can take our time to study.

Senator Finestone: It was reported to the minister in 1994 that this was a poorly developed procedure. We are now in the year 2000. Think of how many children this has impacted.

Senator Cools: The Minister of Justice has a special duty to look after children. This is not a simple legal matter that is being delayed. Families are being torn apart.

Will you send to me the information on passports?

Mr. Rosenberg: Yes, we will.

Senator Cools: As I have said before, I think that is a pernicious scheme.

Senator Finestone: I did not. I thought it was great.

Senator Cools: I should like to turn now to a question with respect to judges.

Referring to page 15-2 of the Main Estimates, under the Commissioner for Federal Judicial Affairs, there is a new strategy of the Canadian Judicial Council on public relations, which I view as political. They issued a document entitled: "The Judicial Role in Public Information." I belong to a large majority of people who believe that the judiciary has no role in politics or public information and that the Judges Act was contrived as a mechanism to protect judges from this sort of thing, that it was contrived as a mechanism to pay the salaries of judges in a particular and peculiar way in order to elude other parliamentary issues.

What does that program cost and how is its payment warranted and justified under the Judges Act?

I am sure you have heard about my persistent efforts on the next front that I will address. I would like to know more about payments through CIDA to the office of the Commissioner for Federal Judicial Affairs. My interest in this arose out of an interview with Mr. Justice Lamer on December 9, 1996, which interview followed the amendment of Bill C-42 dealing with judges. The Senate and Parliament limited the international activities of judges. A few days after that bill was passed, in an interview Mr. Justice Lamer stated:

I was a little disappointed but I found another way and... I'll be going to have lunch today with Madame Huguette Labelle, the head of CIDA then I think we're going to go through CIDA.

I have been trying to find out for the last many years exactly what the mechanisms are for the movement of that money from CIDA to the Department of Justice, Commissioner for Federal Judicial Affairs. I want to know what authority in the Judges Act allows the Commissioner for Federal Judicial Affairs to receive that. I have also been trying to get a list of the projects involved, the quantum involved, and the judges involved.

Mr. Rosenberg: I cannot answer all of your questions this morning, but we will take them under advisement and provide written answers to you. In particular, with respect to your first question on the new program of the Canadian Judicial Council, I do not have before me details of the cost of that program. I will have to get back to you on that and on the program authority for it, and we will do that.

With respect to the authority for judges to engage in international activities, my understanding is that the so-called "Arbour" amendment authorized Justice Arbour to take leave from her judicial duties to serve as a prosecutor with respect to war crimes.

We are actively involved now in one project which involves judges. That is the Canada-South Africa linkage project. Judges there have not received any fees, honoraria or other payments. We do pay travel and accommodation expenses. Those CIDA funds are administered by the Department of Justice; we are the executing agency for CIDA. Any amounts paid out to judges are paid out in accordance with Treasury Board travel guidelines.

In terms of the authorities under the Judges Act, my sense is that section 57(1) of the Judges Act prohibits judges from accepting any salaries or expenses for certain activities, except as provided under subsection 57(3). Subsection 57(3) allows judges to receive moving or transportation expenses and reasonable travel and other expenses occurred when away from an ordinary place of residence for activities described under section 57(1).

Section 57(1) contemplates judges performing any duty or service that a judge may be required to perform for or on behalf of Canada. It is our view that international legal education activities fall within this exception to the general prohibition.

Senator Cools: You cited section 57. Then you said the prohibition deals with judges' activities. The Judges Act at section 55 says that judges should be devoted only to judicial duties. My understanding of the Judges Act as it was passed first in Parliament in 1905 is that it explicitly intended to apply to judges in respect of Canada and not outside. In other words, the Judges Act conveyed no international intention or international jurisdiction.

Canada was very concerned for the previous hundred years about the financing and the funding of its judges. There was a lot of concern then -- at the colonial office in England as well -- about judges being absent from their own country. Anything you can tell me about this I would appreciate.

Mr. Rosenberg: We will give you more detail, but my sense is that the modern-day concerns surround judges taking leaves of absence from their responsibilities to take on other matters was addressed specifically with respect to Madam Justice Arbour when she went off to do her international work.

In these projects, the judges' involvement is more limited. It may take place during judicial vacations, et cetera. I will get you more information on that.

Beyond the legalities of the issue, I would just say that a number of industrialized countries are engaged internationally with emerging countries, for example, in the former Soviet Union and with emerging democracies in places like South Africa. South Africa is a special case because it is a Commonwealth member and also because they have largely modelled their Constitution after the Canadian Charter of Rights. They are trying to adapt, after the old apartheid regime, without tossing out, in a wholesale way, all of the judges and justice officials who were part of that regime. That would be too disruptive of their society.

South Africa is looking to us and to others, like the Americans, for help in developing the notion of an independent judiciary. Our feeling is that, if we can do a little bit to help cement democracy in a place like South Africa by ensuring the development of solid, independent judicial institutions, we should do so.

Senator Cools: You are proving my point in a way, Mr. Rosenberg. Coming back to leaves of absence, I believe Mr. Justice Barry Strayer has gone abroad on leaves of absence for periods of months and not just on judicial vacation.

The committee will be interested, I believe, in the tools and mechanisms, the instruments, that are being used to grant such leaves of absence.

Madam Justice Arbour, while the bill was before us, left Canada and was maintained in her position for some months before by three various Orders in Council. That was an extremely unusual instrument and an extremely unusual process.

Judges are not free to just get up and go away. Quite often, it is a complicated process to release them. I believe that Mr. Justice Strayer has been gone for three or four months at a time. I am sure you have that information. You may even have the Orders in Council.

I am trying to impress upon you that these matters are not so simple. Canada has traditionally been very jealous of its judges. Canada has an important role to play in international affairs and in assisting fledgling countries to develop stronger systems of governments, but you are proving my point. Those are political roles and not judicial roles.

According to the Judges Act, the judicial role assigned to judges is pretty specific. It is supported by many parliamentary discussions.

I appreciate, support, and respect a lot of the good work that Canada has been doing internationally. I laud it, and I want it to continue. However, those are not judicial roles. Creating a judiciary in a foreign country is not a judicial role. Perhaps we can pick it up again.

The Chairman: Senator Finestone earlier referred to what she called the oversight role of the Department of Justice. I think her concept and mine of the Department of Justice are somewhat similar.

I believe the Department of Justice is not a department like the others whose activities ought to be integrated, harmonized, subordinated to the overall policy thrust of the government of the day. In many respects, the Department of Justice must be above the fray and somewhat at arm's length.

I refer to the public record with regard to the process that led up to events at the APEC conference in Vancouver with which we are all familiar and which have been in the news. I am not talking about what happened out on the streets at UBC during the conference. I am talking about the process in Ottawa which led up to those events.

My reading of that process suggests to me that the police and security functions were just two other places at an interdepartmental table and that the quite legitimate criteria and objectives of other departments and agencies of government -- Privy Council, the Prime Minister's Office, Foreign Affairs and International Trade -- were superimposed upon the police and security functions, and that therein lies part of the problem that we later encountered in British Columbia.

There was a very telling moment in all this, and it is part of the public record. It is just a little vignette but I think it says a lot. A fax was sent by an RCMP officer in the field to his superior in which he said, and I am paraphrasing: They want me to take down the signs. Signs are not a security issue. Signs are a political issue. Should I take down the signs? Under what authority may I take down the signs?

It is not the job of the police and security function to spare our foreign guests embarrassment, is it? The role of the police and security functions at an event such as that is to see to the physical security of those attending, period, and yet, I have the impression -- and you can correct me or comment if you feel you can -- I know you were not there at the time -- that too many other considerations are being visited upon the police and security function, which is a discrete function in the government. That is one area that concerns me.

While you are at it, tell me whether you agree with me that there are matters that the Minister of Justice -- for that matter, the Solicitor General -- should not, indeed, may not, share even with cabinet colleagues, and how you handle that?

What about the role of political staff in the offices of those two ministers? Do you feel that you are obliged to share everything that you would share with your minister, that you are obliged also to share that with her or his chief of staff or political staff?

Finally -- and I do not wish to open up this subject, and I suppose I am doing so, but I shall try to phrase the question carefully -- in a matter like the Mulroney case -- we all know what I am talking about here -- there is enough evidence on the public record now to suggest that confidentiality was breached. Certainly, it is on the public record that there was quite a lot of communication between some people in the RCMP and the media. It is a fact, I think, that the story of Mr. Mulroney's supposed involvement in that matter was circulating on the Hill here and being peddled to people in the parliamentary press gallery, even before it leaked to the Financial Post.

You need no go into that. First of all, with regard to APEC, have you reviewed the process in Ottawa that led up to that; and what conclusions have you drawn for the future?

As to the other matter, as Deputy Attorney General of Canada, have you taken steps and are you making every effort to ensure that the tightest confidentiality is maintained on matters where it ought to be maintained? I am talking particularly, of course, about criminal matters. That is a large area, but I would like you to comment, where you can properly do so.

Mr. Rosenberg: With respect to APEC, as you may be aware, we are now moving towards the final phase of the APEC enquiry before Mr. Justice Ted Hughes. All of the parties, including ourselves, are making submissions. We want to see what Mr. Justice Hughes says about what happened at APEC, which will touch on a number of the issues that you raised, and have the benefit of that report before we do a review of procedures within the federal government. That will be forthcoming over the coming months. Those final submissions are being made in June and we will take them very seriously ourselves in working with other players in the system, including the Solicitor General's department and the Privy Council Office, Foreign Affairs, et cetera.

With respect to confidentiality, there are many things we deal with that are very sensitive and I would dare say that our work in some ways is getting more sensitive in certain areas, as we are dealing with some of the impacts of globalization. The biggest beneficiaries, in a way, of globalization -- the most nimble beneficiaries of globalization -- are organized crime and terrorist organizations who communicate more seamlessly than ever, using information technology, and being unconstrained by the kinds of jurisdictional and sovereignty issues which constrain national governments.

The subject matter of our work, what is on our plate and what becomes important, is changing from matters which 50 years ago may have been more local in nature to matters which are now more complex, are happening faster, and where the information will disappear with the press of button. Those things need to be dealt with quickly, but they also need to be dealt with with a great deal of security and an appropriate degree of confidentiality.

We understand that. We have a need-to-know policy. In many cases, we may be getting information from some of our foreign partners. We have a good working relationship with the Americans on security matters. That showed itself over the Christmas period. We must improve the mechanisms that states have to deal with these matters.

In a nutshell, we are very mindful of security and confidentiality requirements and we will continue to review our practice on an ongoing basis to ensure that we handle sensitive information carefully.

As far as the role of the Minister of Justice and what she should or should not share is concerned, she has statutory responsibilities under the Department of Justice Act as Attorney General and Minister of Justice. She has responsibilities to take decisions, for example, on criminal prosecutions. That is not to say there are not occasions when it is appropriate to consult to get views, because having a responsibility to make decisions does not mean she must make them in splendid isolation of anyone else's views. What it means is that you should not substitute others' views for her own.

There has been a long tradition in this country of attorneys general being mindful of ensuring that decisions on prosecutions are taken absolutely in the context of proper prosecutorial policy and not taken for partisan political reasons. Attorneys General have governed themselves according to those precepts for a very long time.

As far as the role of political staff is concerned, we have a good relationship with our minister's political staff, which I believe is important, but I will make my determination on a case-by-case basis as to when I think it is appropriate to go through the executive assistant to the minister, and when I think the minister needs to know something. If the matter is of a very sensitive nature, I will bring it to the minister herself.

Senator Finestone: After listening to both a very interesting question and a very interesting answer, I hate to come back to some very mundane issues.

In considering the issues of pay equity, Legal Aid, and legal information, I would like to know if we still fund LEAF, the Women's Legal Education and Action Fund?

Mr. Rosenberg: I do not know the answer offhand, senator.

Senator Finestone: I would like to know what you are doing so we do not have to go through the pay equity problem as we did. Perhaps you could write me a note about that.

In the course of looking at what you will do in response to the increasing concerns over privacy, will you be considering access to information and Legal Aid?

I also wanted to know about Canadian human rights. What is happening with the Canadian Human Rights Act?

Mr. Rosenberg: As you know, a review, chaired by Mr. Justice La Forest, started in April of 1999. Originally the mandate was to be fulfilled by April of this year, but a three-month extension was granted. We will soon be seeing a report from the three-member review panel chaired by Mr. Justice La Forest and we will move on that.

Pay equity was not included in the terms of reference of that review. We were still in the middle of the pay equity case when that started. We are looking, with our colleagues in the Department of Labour and Treasury Board, at doing a separate review of the pay equity provisions in the Canadian Human Rights Act.

Senator Finestone: Will there be a gender analysis attached to that?

Mr. Rosenberg: We absolutely will have a gender analysis. We do gender analysis as a matter of course now in the department. Guidelines on gender analysis that were put together a couple of years ago provide an analytical framework for considering gender issues, not just generally but in the areas of litigation, advisory work, policy, et cetera. We take the issue seriously. This is somewhat of a cultural change. We have a number of gender equality specialists who are trained to help the professionals in the department learn how to use these analytical tools properly, and we continue to work on that.

Senator Finestone: I am pleased to hear that, and I would like to have a copy of your gender analysis rules. Once I have that, I would like to know how you use that to evaluate not just women but men as well, because it was not a tool meant solely for women. I was the minister when that was developed. I want to know how you have applied it since then.

The Chairman: Mr. Rosenberg, I hope you have enjoyed this seminar half as much as we have. It has been extremely interesting, and we do appreciate how fully you have engaged with us on these subjects. I am afraid we have left you and your officials a week's worth of work preparing documents by way of follow-up, but I know you will do your best and we will get them as and when they are ready.

Honourable senators, we do not have another meeting scheduled of this committee. However, the draft report on emergency and disaster preparedness should be circulated early next week. We will have two bills to deal with shortly: Bill C-32, of which Senator Mahovlich is the sponsor, and Bill C-25, of which Senator Poulin is the sponsor. Although those bills have not yet been referred to the committee, the government wants them passed before summer. We will do our best to accommodate that request, but that will necessitate a high degree of cooperation on our part, on the part of the government, and on the part of our colleagues in the Senate.

We will convene the committee, as necessary, on Tuesday mornings and Wednesday afternoons. I will not convene the committee at any other times without first consulting the entire committee. Those two time slots should be sufficient. These are important bills, ones that deal with the Budget Implementation Act and the Income Tax Act and the Excise Tax Act.

The committee adjourned.