Debates of the Senate (Hansard)
1st Session, 44th Parliament
Volume 153, Issue 6
Wednesday, December 1, 2021
The Honourable George J. Furey, Speaker
- SENATORS’ STATEMENTS
- ROUTINE PROCEEDINGS
- The Estimates, 2021-22
- Criminal Code
- Canada Labour Code
- Judges Act
- Language Skills Act
- The Senate
- QUESTION PERIOD
- Privy Council Office
- International Trade
- Immigration, Refugees and Citizenship
- Employment and Social Development
- International Trade
- ORDERS OF THE DAY
Wednesday, December 1, 2021
The Senate met at 2 p.m., the Speaker in the chair.
The Hon. the Speaker: Honourable senators, on November 23, 2021, the Senate adopted an order that “the position of Speaker pro tempore be filled by means of a secret ballot by all senators to be held at the earliest opportunity, using the process established by the Speaker for the election of the Speaker pro tempore in the Second Session of the Forty-third Parliament, with timelines adjusted for the current session at the Speaker’s discretion”.
The process established last session was that the election of the Speaker pro tempore be by ranked ballot.
For the current session, a senator who wishes to be a candidate will have to communicate his or her interest by email to the Clerk of the Senate by noon on Monday, December 6, 2021.
At the start of the sitting after Monday, December 6, I will announce the names of the senators who are candidates. Instead of proceeding to Senators’ Statements, we will then hear from the candidates for a maximum of three minutes each, irrespective of the total time required. If there are fewer than six candidates, any balance of time can be used for regular statements.
The voting will start shortly after we have heard from the candidates. Details about the confidential system will follow shortly before voting is to start. Only the Clerk will have access to information about the vote. He will not reveal any of this information to anyone.
Senators will be able to vote until 6 p.m. on the day after voting starts. That deadline could be extended, if required, for technical reasons. When they vote, senators will rank as many candidates as they wish, with one being their first choice, two their second, and so on. If, however, there are only two candidates, senators will only be asked to select one candidate.
After the voting, the Clerk will count the votes in private. After the initial count, the candidate, or candidates, with the fewest votes will be dropped and those votes redistributed to the next active preference on the ballot, if one is indicated. The process will continue with successive rounds until a candidate has a majority of votes that are still active. If, after all possible distributions, two or more candidates have the same number of votes, a run-off election will be held.
The name of the chosen candidate will be announced at the start of the sitting following completion of counting. A motion to name that senator as Speaker pro tempore will then be deemed moved, seconded, and adopted, without debate, amendment, or further vote. No further details will be provided, and the Clerk will keep all information related to the vote confidential.
International Day for the Elimination of Violence Against Women
Hon. Marie-Françoise Mégie: Honourable senators, November 25 marked the International Day for the Elimination of Violence Against Women and the beginning of the 16 Days of Activism Against Gender-Based Violence. This time is an opportunity for us to speak out against this worldwide crisis and its devastating effects, to pay tribute to the victims, and to renew our commitment to putting an end to gender-based violence once and for all.
Gender-based violence is sometimes invisible. It may remain hidden because of stigma, shame or the fear of not getting the support needed to get away from the violence or to survive the trauma associated with it. Certain intersectional populations are disproportionately affected. Black and Indigenous women, immigrant and refugee women, LGBTQ2+ people, and people with disabilities often face structural and cultural barriers that make them more vulnerable.
The COVID-19 pandemic has exacerbated this violence. According to the Canadian Femicide Observatory for Justice and Accountability, the number of femicides in Quebec rose from 13 in 2019 to 23 in 2020, an increase of 77%. So far, in 2021, 18 femicides have occurred in Quebec and 41 in Ontario.
The pandemic is also making it harder for people fleeing gender-based violence to access support and services. According to a 2020 survey, shelters had a harder time meeting survivors’ needs during the pandemic. Lockdown measures further isolated women living with violent partners.
Esteemed colleagues, in 2020, the Government of Canada did indeed allocate $100 million to fighting gender-based violence. Nevertheless, I call on the government to work closely with the provinces and territories to develop long-term strategies to end this form of violence. We have to invest in social infrastructure to empower women fleeing violence and create the right conditions to help them thrive.
Women and girls are entitled to safety and dignity. It’s high time we ended violence against them.
Artwork and Heritage Advisory Working Group
Hon. Patricia Bovey: Honourable senators, today I rise as Chair of the Senate Artwork and Heritage Advisory Working Group, and I celebrate the poignant, truly meaningful artists’ work installed in this Senate building over the past few months.
The Indigenous peoples room has been rehung, expanding Indigenous representation across Canada. The first museums at the Senate, with Inuit art from the Winnipeg Art Gallery and Nunavut in room B30 of the Senate of Canada Building, represents art from across the Arctic. Both of these initiatives reflect the Senate’s reconciliation goals.
The second, honouring Canada’s Black artists, celebrates Toronto artists Denyse Thomasos and Tim Whiten, both with widely acclaimed international careers. Trinidadian Canadian Ms. Thomasos, who died young, taught in the U.S. The Art Gallery of Ontario is presenting her retrospective exhibition. Her energy-filled art captures a vibrant urban centre and past and future Black sensibilities. Tim Whiten, Professor Emeritus of York University, has worked in many major collections. He, too, links past and present realities, overlaid with a depth of spirituality.
These small projects have immense impact. I was particularly moved by the response to our Inuit installation from a security person who worked here from 1988 to 1998. Yisa Akinbolaji, using his traditional Nigerian colours in Stolen Identities, seen here last year, depicted Louis Riel’s image in Manitoba’s poplar woods. It inspired Métis poet and teacher, Ginette Fournier-Richer’s poem, Pour Ton Nom:
Your name. . .
I said it again and again
but the red silence stole all its letters
I screamed it again and again
but the greedy wind muted my heart
I pleaded with it again and again
but the trees’ blue limbs let it slip to the ground
I murmured it again and again
but your frayed silhouette pitilessly escaped me
I carved it again and again
but the stone absorbed my blows without a trace
Your name. . .
pain upon pain
loss upon loss
discarded, imprisoned, erased
Your name. . .
I walk through the dust of your smiles,
your tears, your dreams,
your words. . .
Your name. . .
trembles on the ferns
that bend to the light
hanging on the promise of scant hope. . .
I would like to thank Ginette Fournier-Richer, all the artists, the Winnipeg Art Gallery, Nunavut, the Olga Korper Gallery, our Senate subcommittee, our curator, Tamara Dolan, and the team that installed these works.
The Late Barbara Ann Trainor
Hon. Diane F. Griffin: Honourable senators, I rise today to mark the passing of my dear friend Barbara Trainor, who died in September at the age of 73.
Barb and I met during our undergraduate studies at Saint Dunstan’s University. We were in the final graduating class of Saint Dunstan’s, which went on to become the University of Prince Edward Island.
After finishing her degrees, Barb was a mathematics teacher at Queen Charlotte, East Wiltshire and Bluefield schools. Later, she joined the P.E.I. Department of Education and created science curricula to be used through throughout the Atlantic provinces.
In her later years, Barb really made her mark in volunteer activities. She was a master gardener, and she was a national judge for the Communities in Bloom program. Barb was the P.E.I. representative on the trail partner advisory council to the Trans Canada Trail, and was also active at the local level as a member and president of Island Trails.
She was a wonderful advocate for the creation and expansion of P.E.I. trails. In July, we spent a pleasant walk on an expanded portion of the Trans Canada Trail that she helped create — another part of her legacy. Barb and I shared a love of the outdoors, of skiing and travel. Our shared interests led to many ski trips, including in Quebec, Alberta, Utah, Idaho, Maine and Sun Peaks in British Columbia, where we skied with the former senator the Honourable Nancy Greene Raine.
Barb loved to hike, cycle and ski. From time to time, she good-naturedly joined me on my bird-watching adventures, including a trip we took to Africa.
After enjoying an outdoor adventure, she would say, “It’s good for the soul.”
Barb Trainor greatly loved her family. She and her husband, Cecil Taylor, raised daughters and step-daughters who meant the world to them. Cecil participated in many activities with Barb when he was not busy overseeing disciplinary measures for the Maritime Junior Hockey League and serving on the National Council of the Conservative Party of Canada. They both contributed to their community in so many ways.
Barb’s work and legacy will live on for many years in Prince Edward Island. May perpetual trails lie before her. Thank you.
World AIDS Day
Hon. René Cormier: Honourable senators, since the emergence of AIDS, 80 million people have been infected and more than 36 million have died. Some 38 million people are living with the virus today, and between 700,000 and 1 million people die each year.
Behind those numbers are women, men, children, people from all walks of life, all origins and all regions of the world who are dying from or living with this terrible disease.
HIV/AIDS first appeared on this planet 40 years ago. It was considered a shameful disease at that time, one that only affected “other people,” mainly homosexual people and drug users.
People in my life, including Bernard, Laval, Pierre and so many others, died in silence, because one does not reveal the true nature of one’s illness, so as not to ostracize one’s family or be rejected.
Well, that remains true to this day, colleagues. It is still taboo to disclose one’s HIV status. Despite the advent of triple therapy in 1996, despite scientific advances, despite the fact that it is considered a chronic disease, silence still reigns in our communities. The spread of this virus continues because there is still no vaccine against AIDS.
According to data from the HIV in Canada surveillance report, in 2019, there were 2,122 new HIV diagnoses across the country. The most affected age groups were people aged 30 to 39, followed by those 20 to 29, and then those 40 to 49.
The most troubling part, colleagues, is that the Public Health Agency of Canada estimates that in 2018, 13% of people living with HIV did not know they were infected.
Prevention and access to drugs are both crucial in eradicating this disease off the face of the earth. However, the COVID-19 pandemic shows us that if northern countries do not effectively help southern countries have access to drugs, it won’t happen. If we do not work concretely toward reducing inequalities in the world, it won’t happen.
As we mark World AIDS Day and Aboriginal AIDS Awareness Week, what do we need to do, honourable senators, to ensure that Canada takes responsibility nationally and internationally and meets the targets it set with UNAIDS to eradicate this disease by 2030?
There is not a choice to be made between ending the AIDS pandemic that is raging today and preparing for the pandemics of tomorrow. The only successful approach will achieve both. As of today, we are not on track to achieve either, says the UNAIDS Executive Director.
Colleagues, it’s time for us to come together and urge our fellow citizens to do more. HIV/AIDS is not a pandemic of the past; it is a pandemic of today.
“End inequalities; end AIDS; end pandemics,” should be the theme that ought to inspire us, because no one is safe until we are all safe. Thank you. Meegwetch.
Human Rights and Sustainable Development
Hon. Renée Dupuis: Honourable senators, it seems increasingly clear that the COVID-19 pandemic that has been going on for a more than a year and a half has heightened inequalities around the world, including here at home.
On the eve of International Human Rights Day, I want to acknowledge the fact that human rights now have a key place in sustainable development.
Many of the UN Sustainable Development Goals for 2030 make that very clear. For instance, goal 3 seeks to ensure healthy lives and promote well-being for all at all ages. Goal 6 is to ensure availability and sustainable management of water and sanitation for all. Goal 10 seeks to reduce inequality, and goal 11 is to make cities and human settlements inclusive, safe, resilient and sustainable.
Access to safe drinking water for Canada’s Indigenous communities is an ongoing issue and one of the most dire examples of inequality and systemic discrimination. This is clearly illustrated by the number of drinking water advisories still in effect on Indigenous reserves and the water contamination problems recently uncovered in Nunavut’s Inuit communities. The amount of work required to make up lost ground and eliminate these inequalities is of direct concern to us.
Dear colleagues, we are committed to having this government collaborate with Indigenous communities to establish a specific schedule and provide adequate funding for the infrastructure required to supply this essential service for all Indigenous communities, as a matter of rights, equality, justice and solidarity. We must send a message that the future of Indigenous communities and the health and well-being of their members are of the utmost importance to us.
Hon. Senators: Hear, hear.
Hon. Ratna Omidvar: Honourable senators, my statement is a sister statement to that of Senator Ataullahjan’s last week on Afghanistan, but I would like to use my time to pivot and shine a light on the great efforts and contributions that are being made by ordinary Canadians to help Afghans get to safety. Many of these Afghans are individuals who assisted Canadian troops, diplomats, Canadian NGOs, Canadian journalists and our allies. Even though Canadian troops left Kandahar in 2014, we left behind many colleagues and co-workers who, wittingly or unwittingly, because of their association with us, are now targets of the Taliban. Our moral obligation to them is undeniable.
Thankfully, many Canadians have risen to the challenge, especially veterans of the Canadian military, including former generals who are shining a light on a daily basis on the precariousness of the lives we left behind. They have come together to identify the people at risk and their families, have set up volunteer networks to guide and house them in safehouses and, with the help of sophisticated technology and networks on the ground, they have planned their often very dangerous evacuation to Pakistan. They are doing so on a self-financed, volunteer basis through donations. They have been able to get hundreds out with many more to come. They have been active and delivered results, whereas our government has talked about processes, protocols and promises — not enough, I will conclude.
The same is true for many Canadian NGOs and media organizations like The Globe and Mail, that are working night and day to get their Afghan colleagues out of the country. Just recently we heard of the heroic efforts by the Rainbow Railroad, a Canadian-led initiative to provide safety to LGBTQ Afghan refugees. They have successfully evacuated members of their at‑risk community to safety to the U.K. — to the U.K., colleagues; not to Canada. Why? One might well ask.
I want to applaud these courageous and dedicated citizens. We, the Senate and our nation, owe them a debt of gratitude. Please help me commend these true heroes and urge our government to work alongside them, follow their lead and support their citizen-led efforts. Thank you.
The Estimates, 2021-22
Notice of Motion to Authorize National Finance Committee to Study Supplementary Estimates (B)
Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in the Supplementary Estimates (B) for the fiscal year ending March 31, 2022, when and if the committee is formed; and
That, for the purpose of this study, the committee have the power to meet, even though the Senate may then be sitting or adjourned, with rules 12-18(1) and 12-18(2) being suspended in relation thereto.
Canada Labour Code
Bill to Amend—Notice of Motion to Authorize Certain Committees to Study Subject Matter
Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That, notwithstanding any provision of the Rules, previous order or usual practice:
1.in accordance with rule 10-11(1), the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine the subject matter of all of Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code, introduced in the House of Commons on November 26, 2021, in advance of the said bill coming before the Senate, when and if the committee is formed;
2.in addition, the Standing Senate Committee on Legal and Constitutional Affairs be separately authorized to examine the subject matter of clauses 1 to 5 contained in Bill C-3 in advance of it coming before the Senate, when and if the committee is formed;
3.for the purpose of their studies, the aforementioned committees have the power to meet, even though the Senate may then be sitting or adjourned, with rules 12-18(1) and 12-18(2) being suspended in relation thereto;
4.subject to the following paragraph, as the reports from the committees authorized to examine the subject matter of all or of particular elements of Bill C-3 are tabled in the Senate, they be placed on the Orders of the Day for consideration later that day; and
5.each of the committees authorized to examine the subject matter of all or of particular elements of Bill C-3 be authorized to deposit its report with the Clerk of the Senate if the Senate is not then sitting, with the reports thus deposited being placed on the Orders of the Day for consideration at the next sitting after they are tabled.
Notice of Motion
Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, December 7, 2021, at 2 p.m.
Bill to Amend—First Reading
Hon. Marc Gold (Government Representative in the Senate) introduced Bill S-3, An Act to amend the Judges Act.
(Bill read first time.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
(On motion of Senator Gold, bill placed on the Orders of the Day for second reading two days hence.)
Language Skills Act
Bill to Amend—First Reading
Hon. Claude Carignan introducedBill S-229, An Act to amend the Language Skills Act (Lieutenant Governor of New Brunswick).
(Bill read first time.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
(On motion of Senator Carignan, bill placed on the Orders of the Day for second reading two days hence.)
Motion to Affect Today’s Sitting Adopted
Hon. Diane F. Griffin: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:
That, notwithstanding any provision of the Rules, previous order or usual practice, today’s sitting continue until 4 p.m., unless earlier adjourned by motion.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
Privy Council Office
Independent Advisory Board for Senate Appointments
Hon. Leo Housakos (Acting Leader of the Opposition): Honourable senators, my question is for the government leader in the Senate. Senator Gold, yesterday, your predecessor right here in this chamber waxed poetic about the wonderful things and accomplishments of this new independent Senate and the policies that have been implemented here in regards to the new-found independence of the Senate. And I get it; you’re both very proud of the work your government has done, as all senators who have come before us through this august chamber are proud of the work this great institution has done. But one of the things that Senator Harder lauded about yesterday was the Independent Advisory Board for Senate Appointments. Of course, that prompted me to think that there have been countless occasions in this chamber where we’ve asked the government to be forthright in regards to the activities of that board, and we’re still waiting for answers to those questions.
As you all know, that board is obligated to file reports in the spirit of transparency and accountability in regards to its financial obligations and its activities to taxpayers. Out of curiosity, I went back to the site, and I see that the last time there was any filing in regard to the Advisory Board for Senate Appointments was December 5, 2018. Even by the Trudeau Liberal government’s standards, you have to admit, government leader, that’s a little bit excessive. Three years is a little bit much when it comes to not being accountable.
My question is very simple: Why hasn’t this board filed public accountability reports, as they’re obligated to do? And in the last three years, has the government received any reports from this advisory board?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. I will refrain from commenting on your commentary to simply respond that I don’t have the answer to your question — or questions, I should say — and I’ll certainly make inquiries.
Senator Housakos: Senator Gold, we’ve been asking repeatedly in regards to the activity of the board and the fact that it has not been public and transparent, both in terms of expenses and the processes that they’ve been carrying out.
Leader, I’ll give your government this: I will give it full credit for consistency, because they consistently fail to provide transparency when we ask these simple questions. Yesterday, our colleague Senator Marshall asked again a simple, basic question where the public accounts come into effect: Where is the debt management project? Simple questions. She’s still waiting for answers. And today, I’m forced again, prodded by a speech by Senator Harder, to ask a simple question: Where are the reports of the Advisory Board for Senate Appointments? It has been three years and we’ve been asking repeatedly about this. So can we have a transparent, accountable question when it comes to the Advisory Board for Senate Appointments? When will they make it public?
Senator Gold: I’m giving you the most honest and transparent answer that I can, and that is I do not have the answer, and if I did, of course I would provide it. I will make inquiries, as I’ve done in the past, and when I do get a response I will be pleased to share it with this chamber.
Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, my question is also for the government leader in the Senate and on a question that I’ve been asking repeatedly as well. The leader may remember that during a Question Period in May, I raised plans brought forward by the U.S. Department of Commerce to increase its tariffs on softwood lumber imports from Canada in November.
Last week, a few days after a face-to-face meeting finally took place between the Prime Minister and President Biden, the U.S. went ahead and doubled the tariffs from 8.99% to 17.9%. This is absolutely terrible news for the forestry sector in my province of B.C. and, indeed, across Canada.
Leader, I have raised the concerns of B.C.’s forestry sector and the need for a softwood lumber agreement with the United States in this place many times. By now, it’s sadly clear that this industry is just not a priority for the Trudeau government. Simply, why not?
Hon. Marc Gold (Government Representative in the Senate): Senator, thank you for raising the question and for underlining the importance of the industry to your province, to mine and, indeed, to many regions and provinces.
It’s simply not the case, however, with respect, that this is not an industry that is important to Canada. Quite on the contrary, Canada has and will continue to use all of its levers to defend the interests of the industry as it can. It’s extremely disappointed with the results of this most recent decision. The duties are unjustified. They hurt workers, they hurt businesses and they hurt communities, indeed in both countries.
As members will know, Minister Ng is currently in Washington. This is an issue she is raising with her counterparts. My understanding is she is accompanied by MPs from all parties to make it clear how significant and important this is for Canada.
As Minister Freeland has also said, we, the Government of Canada — I’m quoting her — is ready to respond to “. . . defend national interests.” That’s what we’re doing.
Senator Martin: I was going to ask about what exactly has happened in our exchange with the United States because, if you recall, I had quoted Katherine Tai, the U.S. trade representative, who told the U.S. Senate Finance Committee earlier this year:
In order to have an agreement and in order to have a negotiation, you need to have a partner. And thus far, the Canadians have not expressed interest in engaging.
I’m glad to hear that Minister Ng is down in the U.S., but I would like to ask you, leader, if you could report back to our chamber the results from that meeting. And specifically on this issue of softwood lumber, what will be happening to alleviate the issues that we’re facing today? Doubling tariffs is just really concerning for the industry and all of us.
Senator Gold: Thank you for your question. The concern that you’re expressing is shared by Canadians in the industry and by this government. I will be happy to report, as I’m sure the minister will upon her return, the processes at play and the levers and options that are within Canada’s power to execute are matters that sometimes take some time to put into place or to decide to put into place. Most of these discussions, especially with our major trading partner, take place out of the spotlight. When I have something to report, I will be happy to report it.
Canada’s Commitment to the Fight Against HIV/AIDS
Hon. René Cormier: Today is World AIDS Day, a reminder that this pandemic, which first emerged 40 years ago, is still going strong, and that sustained resources are needed to eradicate it.
Exactly one year ago today, on December 1, 2020, I moved a motion in this chamber that was adopted by the Senate, calling on the Government of Canada to evaluate the cost of implementing its five-year action plan on sexually transmitted and blood-borne infections, to establish national targets in the fight against HIV/AIDS and to increase funding for the Federal Initiative to Address HIV/AIDS in Canada.
Yes, there was the COVID-19 pandemic. Yes, there was an election. Sexually transmitted and blood-borne infections did not cease to exist, however. National targets in the fight against HIV/AIDS are still essential to eradicating this disease, and more money is needed to fight HIV/AIDS now than ever before.
Senator Gold, what does the Government of Canada plan to do during this Forty-fourth Parliament to respond effectively to the needs identified in that motion?
Hon. Marc Gold (Government Representative in the Senate): Thank you for the question, Senator Cormier. I’m told that the government is strongly committed to putting an end to the AIDS endemic by 2030 and to supporting Canadians living with AIDS. The government is investing $87 million a year to combat the human immunodeficiency virus, or HIV, and other sexually transmitted and blood-borne infections. I’m also told that the government is investing $30 million through the Harm Reduction Fund to prevent and control HIV and hepatitis C. The government continues to work closely with community groups and people with lived experience.
Senator Cormier: Thank you for your answer, Senator Gold. What role does Canada intend to play and what concrete measures will it take at the international level to eradicate this disease by 2030?
Senator Gold: Thank you for this second question, dear colleague. Unfortunately, I don’t have an answer at present concerning the government’s objectives for this issue at the international level. However, I do want to thank the honourable senator for his ongoing commitment to this issue. I will follow up with the government and provide an answer as soon as possible.
Immigration, Refugees and Citizenship
Immigration Processing Backlog
Hon. Ratna Omidvar: My question is for the representative of the government, and it is about Raif Badawi, a political prisoner in Saudi Arabia who has been jailed for his beliefs since 2012. Irwin Cotler, Canada’s former attorney general, has been advocating on Mr. Badawi’s behalf.
Eight months ago, the House of Commons passed a motion calling on the Minister of Immigration, Refugees and Citizenship to grant citizenship to Raif Badawi by exercising his discretion under section 5 of the Citizenship Act, which authorizes him to grant citizenship to any person to alleviate unusual and special hardships. Six months later, on June 3, 2021, this chamber passed the same motion, led by our colleague Senator Julie Miville-Dechêne. When will the government follow the will of both houses of Parliament and grant Raif Badawi Canadian citizenship?
Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Omidvar, for your question and for giving me some time to inquire. Regrettably, I have not received an answer yet.
I have been assured the government desperately wants to see Mr. Badawi reunited with his family and remains committed to supporting him and them. When I do hear back from the government with particulars, I will report it in a timely manner.
Senator Omidvar: Thank you, Senator Gold. I look forward to hearing from you on that response, as does Mr. Cotler.
I understand that citizenship applications are backlogged for many because of the virus, but we have families who have been waiting for close to two or three years to get an initial response to their application, even though we significantly increased the budget of Immigration, Refugees and Citizenship Canada, or IRCC, last year, and the Budget Implementation Act, or BIA.
As one example, members of the Syrian family I sponsored in 2016 were disappointed that they could not vote in the last Canadian election because they were not yet citizens. Their 16‑year-old son, who is a graduate of high school, desperately wants to join the Canadian Armed Forces, but he cannot because he is not yet a Canadian citizen.
I hope you will agree with me, Senator Gold, when I say: What more could this country want from its refugees? Will you kindly inquire into these delays for many anxious wannabe Canadians?
Senator Gold: I do agree with your question, and I certainly will make those inquiries.
I am the grandson of an immigrant, and many of us here are children of immigrants. We, along with First Nations, Inuit and others, built this country together, so I couldn’t agree with you more. I’ll make every effort to get a quick answer for you.
Employment and Social Development
Employment Insurance Reform
Hon. Diane Bellemare: My question is for the Government Representative in the Senate. Senator Gold, perhaps you saw the ad published in Saturday’s edition of Le Devoir by Quebec’s Conseil national des chômeurs et chômeuses. The purpose of the ad was to draw attention to the urgent need to reform the EI system.
On October 23, the Institute for Socio-economic Research and Information published a research paper on a proposal to reform the employment insurance system to meet the challenges of the 21st century. These public statements are the latest in a series of policy stances taken by a multitude of stakeholders representing the private sector, workers and several community groups.
In its 2021 budget, the federal government promised consultations on EI reform. The budget provided $5 million over two years to conduct these consultations. However, the Speech from the Throne did not mention EI once.
Senator Gold, where is the government on its EI reform plan? What is the status of the consultations planned in the last budget? Can you provide us with a clear road map of the steps in the planned public consultations? Can you also provide us with a written response to that effect? I think a number of groups would be happy to have that information.
Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. I will be pleased to provide a written response when I receive the information. My oral response will no doubt be somewhat predictable in that I will inquire with the government and come back with a response.
I would like to note that although it wasn’t mentioned in the Speech from the Throne, I am advised that the government knows that Canada and Canadians need a modern employment insurance system. This issue hasn’t been forgotten just because of the COVID-19 pandemic or the election.
Senator Bellemare: As you know, Quebec is dealing with a serious labour shortage. In September, Quebec’s job vacancy rate was 7.3%, which amounts to 280,000 unfilled positions. This is unprecedented in Quebec or anywhere else.
In the meantime, the number of people actively looking for work was more than 255,000. To address this problem, yesterday the provincial government announced a $3.9-billion five-year plan to provide bursaries and allowances for people willing to participate in training and skills development in certain key sectors.
Senator Gold, don’t you think we could make better use of EI to address these problems?
As the Government Representative in the Senate, you are also able to share our questions with the government. I would like to make a small suggestion. Why doesn’t the government task the Senate with conducting public consultations on employment insurance in the provinces? These reports could then be sent to the government with a view to reforming the system. What do you think?
Senator Gold: Thank you for the suggestion. In spite of differing opinions on the matter, we agree that the Senate is increasingly independent from the government. That said, I’d be happy to discuss this more with you, dear colleague, to see what role the Senate can play in getting this important issue on the political radar.
Hon. Pamela Wallin: Senator Gold, in the wake of widespread public concern, the government finally set up so-called public consultations on their plan to deal with online harms, which of course included what we knew as Bill C-36 in the last session. Unfortunately, it was all carried out behind closed doors. The government has also decided not to release any of over 300 submissions or its report.
We spoke directly to many of the groups. They had no commercially sensitive information to protect, and most went ahead and made their submissions public regardless.
From open media to the internet society, there was powerful criticism of the legislation and of the consultation process itself. The criteria were too narrow, and the whole process risked being politicized by conducting it during an election campaign. This is an important issue that will impact how Canadians use the internet and just how free our speech will continue to be.
Will this report ever be made public, and will senators have access to it for committee study? If there is any commercially sensitive data, of course it could be redacted.
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, Senator Wallin. It’s an important one. I don’t know what the status of the publication of this report is and I will certainly make inquiries.
As members of this chamber would know, the issue of harmful material — including hateful material — is a matter that remains very much a preoccupation of this government. The government has announced that it intends to introduce new legislation in a timely manner that will require social media platforms to take action on illegal content, like child sexual exploitation, and remove it. I think we all look forward to receiving that bill and having the opportunity to study it.
Senator Wallin: We, of course, already have laws on the books regarding hate, and I’m wondering: If the government has continued to refuse to make any of this public, will they at least follow the guidance of the more than 300 submissions that consistently said this legislation is both “unliberal” and “creepily totalitarian”?
Senator Gold: It’s the position of this government that any law that it brings forward into the other place or this chamber is one that conforms to the Charter of Rights and the values that define us, in that regard, as a free and democratic society. Again, when the bill arrives or is tabled, whether here or the other place — and I have no information on the timing or process — we’ll have occasion to dig in and study it properly.
Hon. Percy Mockler: My question is for the Government Representative in the Senate. My question is on the same topic as Senator Martin’s question.
Senator Gold, hundreds of thousands of forestry workers across Canada are worried about their job security in light of Canada-U.S. relations.
My question for the Government Representative in the Senate today concerns the U.S. Department of Commerce’s decision to raise its tariffs on softwood lumber exports from my province of New Brunswick.
Historically, mills in New Brunswick were excluded from the American tariffs or trade restrictions for our softwood lumber. The reasons for that included the fact that a high percentage of our wood supply in the Maritimes comes from private woodlot owners and also large industrial private land.
Senator Gold, what is the government doing to ensure that New Brunswick regains its exclusion from American softwood lumber tariffs?
Hon. Marc Gold (Government Representative in the Senate): I can’t answer specifically with regard to the current discussions that are underway in Washington or what has gone on between the minister and her counterpart in New Brunswick, but it has always been the case that this government, whether in the context of free trade agreements or in the context of responding to unjustifiable initiatives — whether in softwood lumber in the past, aluminum in the more recent past and so on — has always worked closely with their provincial counterparts to make sure that provincial interests and viewpoints are reflected in the Canadian approach to dealing with the Americans. I have every assurance that will continue to be the case in this controversy.
Senator Mockler: We need action, Senator Gold. When we talk about action, I remember very well that in the Senate Chamber in June 2016, I had the opportunity to ask Minister Freeland if the Government of Canada would fight for the Maritime exclusion. Instead, New Brunswick is currently not exempted from softwood lumber tariffs imposed by the U.S.
My question to you is this: If your negotiations with U.S. representatives remain unsuccessful, will you take retaliatory measures? Is your government working with the Biden administration to accelerate the CUSMA procedures to protect our forestry sector, which creates thousands of jobs across Canada and in New Brunswick?
Senator Gold: The Government of Canada knows well what tools and levers it has. It will use them judiciously but with determination at the moment of opportunity. We’re not there yet. The minister and the representatives — members of Parliament, members of the House — are hoping to reach an agreement or the beginning of an agreement. We need to give some time to the minister and our elected officials to do their work, but rest assured that no option is off the table.
Recovery of Fraudulent COVID-19 Support Payments
Hon. Leo Housakos (Acting Leader of the Opposition): My question is for the Government Representative in the Senate.
Senator Gold, while it may have been rolled out with the best of intentions, the CERB program was fraught with problems from the get-go. We’ve certainly heard all the stories of people receiving payments for which they didn’t qualify. Now, according to a report from the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), we know that organized crime knowingly and actively defrauded the CERB program by filing multiple applications using stolen identities.
I think we can all appreciate how incredibly frustrating this must be for taxpayers, especially for Canadians who have to jump through hoops to qualify for various other programs from your government.
Senator Gold, what if anything is being done to recover these taxpayers’ dollars from criminal organizations? What is being done to ensure that criminals are punished for this defrauding of taxpayers’ funds?
Hon. Marc Gold (Government Representative in the Senate): The abuse and criminal abuse of CERB or any other program is unacceptable. Investigations are being pursued, and legal action will be taken where possible and where necessary.
Senator Housakos: Government leader, the Financial Transactions and Reports Analysis Centre of Canada, or FINTRAC, says that it does not know exactly how much CERB money went to organized crime. However, the Minister of National Revenue told the media that audits of CERB have been under way for some time.
Leader, according to the Canada Revenue Agency, how much CERB money did these audits show was fraudulently claimed by organized crime?
Senator Gold: I don’t know the amount, but I will do some research and get back to you once I have a answer.
Guaranteed Income Supplement
Hon. Yonah Martin (Deputy Leader of the Opposition): On that note, while we’re investigating, and we don’t know what the fraudulent amount may be — the impact could be quite big based on just anecdotal evidence. On the other hand, we have low-income seniors who lost their jobs and took the CERB through the Canada Revenue Agency who are having their access to the Guaranteed Income Supplement (GIS) treated differently than seniors who took emergency benefits through the EI system. The Parliamentary Budget Officer estimates that about 90,000 seniors who took the CERB through the Canada Revenue Agency will see their GIS payments clawed back.
The Trudeau government never told seniors that accepting the CERB could hurt their GIS payments. Through no fault of their own, these seniors are now suffering financially. Leader, while these other investigations are taking their time, what is your government doing to fix the serious problem you have created for some of the most vulnerable people in all of Canada, our low-income seniors?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, Senator Martin.
The government knows that, in its efforts to assist all Canadians through the challenging pandemic, problems did occur in the design and implementation of programs, and it knows that the GIS adjustments have been hard on some seniors this year. I am advised that the government is working hard on this issue to find the right solution to benefit Canadians.
Although it perhaps goes without saying, I should remind this chamber that, notwithstanding some of the gaps in the programs that were developed and introduced with exemplary speed and efficiency, this government, with the support of other parties and with the support of us here in the Senate, managed to provide support for our economy, for our businesses and for Canadians that allowed us — and continues to allow us — to weather the storm in very good stead. For that I think all of us should be grateful — that we had the ability in this country to provide assistance to Canadians, old, young and in between.
The Hon. the Speaker: Honourable senators, the time for Question Period has expired.
ORDERS OF THE DAY
Bill to Amend—Second Reading—Debate Adjourned
Hon. Pierre-Hugues Boisvenu moved second reading of Bill S-206, An Act to amend the Criminal Code (disclosure of information by jurors).
He said: Honourable senators, I am proud to rise today to speak at second reading to Bill S-206, An Act to amend the Criminal Code regarding disclosure of information by jurors, which I introduced in the Senate last week.
This bill is close to my heart, much like Bill S-212, which I introduced in the previous Parliament. This bill seeks to implement an important recommendation made by the House of Commons Standing Committee on Justice and Human Rights.
In its report entitled Improving Support for Jurors in Canada, which was released in May 2018, the committee issued a number of recommendations, including recommendation number 4 regarding a more lenient secrecy rule for jury deliberations. It states, and I quote:
That the Government of Canada amend section 649 of the Criminal Code so that jurors are permitted to discuss jury deliberations with designated mental health professionals once the trial is over.
It is important to remember that that recommendation was supported by all committee members during the Forty-second Parliament, regardless of political affiliation. The report was based on an eight-day study of the issue.
On October 29, 2018, the member for St. Albert—Edmonton, Michael Cooper, introduced Bill C-417 in the other place. That bill was unanimously passed and sent to the Senate, but it died on the Order Paper when Parliament was dissolved in September 2019.
Bill S-206 is exactly the same as Mr. Cooper’s Bill C-417. I would like to remind you that this bill amends the Criminal Code to provide that:
. . . the prohibition against the disclosure of information relating to jury proceedings does not apply, in certain circumstances, in respect of disclosure by jurors to health care professionals.
It is unfortunate that has taken nearly four years and four attempts for a bill to be introduced that would prevent law-abiding citizens, who sacrifice their time and often put their health at risk to fulfill a major role in our justice system, from becoming victims of that system because the system prevents them from getting help. Criminal charges could even be brought against them if they were to do so. That is a strange way of thanking those who are simply fulfilling a duty required of them by our country.
Section 649 of the Criminal Code states that any juror who discloses any information relating the proceedings of the jury in their lifetime, even to a mental health professional, is committing a criminal offence.
That section must be made more lenient in order to protect the health of those who often come out of that experience traumatized by what they have read, heard or seen.
We all know that protecting the mental health of jurors is a matter that transcends political allegiances. This bill will help build a more humane justice system, and it is our duty to move it forward so as to limit the suffering of these men and women who are simply doing their civic duty.
Colleagues, I ask you to vote to refer Bill S-206 to the Standing Senate Committee on Legal and Constitutional Affairs immediately after Senator Moncion’s speech, so that we can study it as soon as possible and send it to the House of Commons to be passed.
This bill deals with an important, non-partisan issue, and it has already been studied extensively in the other place. There is no need to waste any more time before passing it.
As Mark Farrant, a former juror and CEO of the Canadian Juries Commission who now advocates for the rights of jurors in Canada, said:
Jury duty is the cornerstone of our justice system. Jurors are often exposed to disturbing and graphic evidence. It is fair to say that jury duty has not kept pace with the increasing demands of our modern world, and it has been my mission to ask for change. This bill, which is a simple amendment to the Criminal Code, will make an enormous difference to jurors seeking support long after their trials have concluded.
Several former jurors have become what I would call victims of our justice system. It is unacceptable that this same justice system sentences them to suffer in silence from a mental health perspective. It is absolutely immoral.
Being a juror in a criminal trial can be one of the most stressful experiences in a juror’s life. I met with Tina Daenzer, a juror who served on Paul Bernardo’s murder trial. She told me about the post-traumatic stress suffered by those who wanted to serve justice by becoming a juror.
Consider the women and men who have to review the evidence at criminal trials for very violent crimes against women or children, heinous murders committed in domestic disputes, violent sexual assaults, organized crime settling scores and so forth.
There is no training that adequately prepares these women and men for jury duty. You may be called by chance to fulfill this very demanding duty, and it will make you a victim of the justice system.
Jurors go through these troubling and devastating experiences without any psychological support and, even worse, with an obligation to remain silent and live with the trauma without having the right to ask for help. Silence is the prison of victims.
Jurors are left to fend for themselves, plunged into the macabre world of crime for the length of a trial. They are sequestered and must deliberate for days, and then they are sent home with no support or assistance to resume their normal lives, as if nothing had happened.
That is exactly what this bill seeks to change by establishing a limited exception to the secrecy rule so that former jurors who suffer from mental health issues resulting from their jury duty can speak about all aspects of these responsibilities to a health professional with peace of mind.
The integrity of the secrecy rule will be protected because, once again, the juror will be disclosing information in a strictly confidential setting after the trial, to a health care professional who is also bound by professional secrecy. This exemption would allow former jurors to discuss essential topics with a health care professional to get the support they need and deserve. I don’t see how anyone could be against this amendment to the Criminal Code.
I am confident that there will be unanimous support for the amendment proposed in the bill to finally allow jurors to legally access the care they need.
I also want to point out that crime is steadily rising in Canada, which means the justice system needs more and more jurors. Statistics Canada’s report on homicide in Canada shows that there were 743 homicides in 2020, an increase of 56 homicides over the previous year, and that there were 864 attempted murders. Trials for murder and attempted murder are not the only crimes that require juries. Anyone charged with a criminal offence in Canada may be tried by a jury.
As a result, because of the increase in the number of trials in this country, we need to do everything we can to ensure that the bill moves forward quickly in the Senate. This is a national emergency for all those who will do their civic duty and for all former jurors who are watching right now and are anxious for the Senate of Canada to do its part by passing this bill and quickly sending it to the other place.
I would like to once again thank Senator Moncion for her unwavering support and especially for her contribution to this important cause, which affects her personally because of her experience as a juror. Even though 30 years have passed since that difficult experience, it still affects her life. We are privileged to be able to pass such a bill, which is endorsed by one of our own. That is proof that there is a reason for this bill. Senator Moncion said, and I quote:
During the last Parliament, legal experts, mental health professionals and members on both sides of the House of Commons supported this bill because its merits transcend partisanship. In view of the interest generated by the proposed change, I believe it is vital that this legislation move through the Senate in the spirit of cooperation.
I would like to thank Senator Moncion for humbly sharing her experience with us so that we can better understand how important and urgent it is for us to take action.
Esteemed colleagues, it’s with that same awareness and sense of urgency that I ask you to pass this bill at second reading so it can go to committee as soon as possible.
Thank you very much.
Hon. Lucie Moncion: Honourable senators, I rise today as the critic for Bill S-206, An Act to amend the Criminal Code regarding disclosure of information by jurors.
As you know, I’ve spoken on this topic twice in previous sessions.
The legislative amendment proposed by Senator Boisvenu has strong support that transcends political and partisan allegiances. The House of Commons Standing Committee on Justice and Human Rights has already carried out a thorough study of the proposed amendment to section 649 of the Criminal Code, and it also studied Bill C-417, the precursor to Bill S-206. As such, I am confident calling for the rapid passage of this bill through the Senate.
In 2018, the Justice Committee responded to testimony from numerous former jurors, jurists and health professionals by recommending the creation of an exception to the jury secrecy rule.
This rule prohibits jurors from disclosing information about the jury’s deliberations to anyone at any time. The scope of this rule is very broad as it covers any information that a juror could disclose, including emotions, feelings of frustration, helplessness, fear, anger and confusion, and negative thoughts associated with difficult interactions with other jury members. The bill would put an end to the suffering and silence by allowing jurors to disclose information about the deliberations to a mental health professional.
Let me now speak on the main subject matter of this legislation: the well-being of jurors. From a legal point of view, jurors are part of a special category of people who are denied complete health care. This bill aims at improving the mental health of former jurors, because everyone’s mental health matters.
Jurors may be exposed to disturbing evidence. They may experience stressful situations by rubbing shoulders with the accused at the courthouse or other jurors with whom they may not get along or agree. They may develop a sense of guilt, unable to come to the desired verdict expected by the victim or their family, or become a victim of the media’s relentless harassment by coming to a verdict that would not render justice in the public’s opinion.
Jurors can be sequestered for long periods, sometimes weeks, losing access to their support systems and feeling guilty that they often leave their spouses or children alone for several weeks.
Dr. Patrick Baillie, who testified in front of the Justice Committee, said that with respect to the deliberation process specifically, research has shown that it can be the most difficult and stressful part of jury duty and can lead to anxiety, PTSD and depression.
Mark Farrant, CEO of the Canadian Juries Commission and former juror, who also testified in front of the committee, said that jury duty is a civic duty, but not a duty to suffer psychologically.
People who serve as jurors can develop anxiety, post-traumatic stress and depression and even have problems with their interpersonal relationships. Yet there is no consideration for well-being and mental health in the juror experience.
I would like to share with you the results of a Canadian Juries Commission study of panels of jurors who had served at murder trials. Although it is not exhaustive, this information will give you a better understanding of the impacts of a juror’s experience, and I quote:
Most jurors reported being dismissed with cursory words from the judge.
Almost all of the jurors spoke of a troubled and difficult transition back into civilian life.
Some are unable to return to work for months or years; some quit their jobs.
Some take months — or a year — before their friends and family feel they’ve returned to even a semblance of normality.
Some continue to agonize and process their part in the trial long after the event.
Many experience ongoing feelings of isolation and abandonment, which for many have never gone away even years after the end of their service.
They speak of:
. . . lack of empathy, sympathy, understanding, or consideration from work/employers, friends, and family, who simply have no idea and cannot grasp the depth of the experience they’ve suffered.
Many believe the experience has marred them for life. They will never be the same again or feel they’ve “gone back to normal.”
As one Ontario juror said:
And I was a wreck. I was crying. I was expecting to be happy because I was done with it, but I was a wreck. All of this just kind of unleashes afterwards. It’s not at all what you expect. I expected to be relieved, and instead I was left with a whole new set of lingering emotions that I had to deal with on my own that I did not foresee at all. And the court . . . your job is done, get out.
The secrecy rule for jury deliberations can prevent jurors from seeing a mental health professional. Mark Farrant, a former juror and CEO of the Canadian Juries Commission, has post-traumatic stress from his experience as a juror. He was turned down many times by mental health professionals before he was able to get help. Mark was suffering in silence, but he was systematically being denied help. That is incredibly unfair and worrisome.
Health care professionals are understandably afraid to provide services to former jurors, knowing that their client could violate the secrecy rule and end up with a six-month prison sentence or a $5,000 fine, or both.
This experience, which is shared by many former jurors who have been denied access to the services of health care professionals, illustrates the major flaws associated with the scope of the rule. When the Criminal Code ends up denying access to essential health services, that is a big problem.
How can jurors manage their mental health problems appropriately when the judge’s final instructions include a reminder that they cannot discuss their deliberations with anyone?
Our courts are creating victims, the jurors, and denying them access to the means of remedying the harm they have suffered while performing a civic duty. Other members of the justice system, such as investigators, judges, lawyers, and clerks, have access to psychological support programs. Jurors get nothing.
The very nature of the rule makes it hard to study the impact of jury duty on individuals’ mental health. Jurors are left to shoulder this enormous burden virtually alone. The consensus among legal scholars is that the rule can be modified to provide a very specific exception without compromising its substance or functionality.
In the report of the Lamer Commission of Inquiry, published in 2006, Justice Lamer identified the following principles: fostering free and frank debate among jurors; protecting jurors from harassment, censure or recrimination at the hands of convicted persons and their families; and ensuring the finality of the verdict.
Because it would apply only after the deliberations, the exception to the rule proposed by this bill respects the principles identified by Justice Lamer in his report. Bill S-206 provides that much-needed reasonable balance.
Professor Vanessa MacDonnell, a member of the Criminal Lawyers’ Association, testified before the committee and stated that introducing a very narrow exception to the juror secrecy rule would in no way undermine the underlying principles of that rule.
The state of Victoria, in Australia, was a trailblazer in this area, having introduced an exception in its legislation. The Standing Committee on Justice and Human Rights used Victoria as its inspiration in making this recommendation. In its report, the committee recognized from the start that the regulation of juries falls to the provinces and territories, which have jurisdiction over the administration of justice.
To make a real difference, the proposed bill must be accompanied by other measures to assist jurors in Canada. A concerted approach that fosters collaboration between the different levels of government and the relevant organizations is required here.
We must work on implementing the recommendations from the Improving Support for Jurors in Canada report, which gives an overview of what a comprehensive reform of the Canadian jury process would look like. I suggest that you take a look, colleagues.
In particular, I suggest having a look at the third recommendation in the report from the other place, about offering debriefing sessions after the deliberations. The federal government could provide funding on its own initiative by exercising its spending power to support the administration of provincial and territorial programs as part of the implementation of the report’s recommendations.
The federal government could also provide funding to organizations that support jurors’ mental health, to ensure that they have the means to implement these recommendations. This report warrants the attention of the government and parliamentarians because we have not yet done enough on this.
The pandemic has put and is putting unprecedented pressure on various key players in the justice system, including jurors. Despite that pressure, certain rights inherent to the administration of justice remain. Individuals charged with an offence still have the right to be tried within a reasonable time under paragraph 11(b) of the Charter, and delivering a verdict within a reasonable time is crucial for public safety and victims of crime.
The Supreme Court ruling known as the R v. Jordan rule imposes limits on the amount of time an accused person can wait for trial. The COVID-19 pandemic pushed many cases past the 18- and 30-month Jordan deadlines because the courts deemed that the delay was justified under the “exceptional circumstances” exception.
Coming out of the pandemic, in what many would call a mental health crisis where many also face socio-economic challenges with inflation rates that make it difficult to make ends meet, we can project that jury duty will not be top of mind for Canadians. Public opinion and potential lack of willingness to perform jury duty will become a problem for the functioning of our justice system if issues such as the well-being of jurors are not addressed in a timely manner.
There was a young lady, a business owner, who told my husband that she had received a summons for jury duty. I told my husband to tell that young lady to find every way out of it. She is a business owner and she cannot afford to be on jury duty for a long period of time.
According to a poll by the Canadian Juries Commission, Canadians rated jury duty lower in terms of civic importance than donating blood or volunteering within the community. These opinions are a direct result of decades of underinvestment in jury duty across the country and an inadequate legislative regime that doesn’t concern itself with the psychological well-being of jurors during and after a criminal trial.
Parliamentarians have a duty to individuals charged with a crime, to victims of crime and to the principle of public safety to provide the courts with the necessary support. Fulfilling that duty begins with paying special attention to the well-being of jurors.
It’s clear that Bill S-206 tackles a problem that transcends partisanship, namely the mental health of jurors in Canada. Besides being a civic duty that is crucial to ensuring the accused’s fundamental rights and the victims’ well-being, forming a jury is one way to introduce the public’s perspective into the machinery of justice.
Currently, jurors are becoming collateral casualties of the justice system, and the Criminal Code is perpetuating their suffering. Jury duty should not come at the expense of the mental health of the citizens summoned to perform it. I know from personal experience that this bill is absolutely necessary and essential for former jurors who suffer in silence. As Senator Boisvenu mentioned, in 1989, when I was a busy working mom of two young children, I was summoned to jury duty at a first-degree murder trial. I spent nearly two months in court. The trial ended on a Saturday. The following Monday, I flew to Val Gagné in northern Ontario to convert a bank’s computer system. I was picking up my life where I had left off two months earlier. But I was not the same person anymore.
As a result of that trial, I suffered from post-traumatic stress disorder, a condition that has affected every aspect of my life, including my family.
Mental health used to be stigmatized and is a new reality in the political arena. We now know too well and cannot ignore the psychological damage suffered by jurors when they exercise their jury duty.
I would like to warn you, honourable senators, that the next part of my speech contains graphic details.
Just ask yourself in what state you would be if you were shown graphic pictures of a 6-year-old child tied to a chair with duct tape, the duct tape covering the child’s face and nose, and learning that this malnourished child died of asphyxiation? What about this other 8-year-old girl who was raped and murdered with a hammer? What about watching videos of two girls, 14 and 16 years old, being repeatedly raped and shown pictures of their bodies found in a ditch?
Now, try to rationalize and ask yourself why did this happen? Who does that? How can someone be so evil to even think of doing this to anyone?
You are a decent person when you come into court. You are confronted with atrocities. You know what? It stays with you. Every time you hear of a murder, you cringe. You remember. I could go on, but I’m certain you get it.
The law of silence no longer holds and the secrecy rule needs to be changed.
Colleagues, Bill S-206 is not a government bill. It’s a Senate public bill that has been extensively studied in the House of Commons and has wide support among MPs as the previous versions of this bill passed unanimously.
Now this bill needs to be sent to committee and studied in the Senate so that it can be returned to this chamber, adopted and sent to the other place expeditiously.
This is the fourth time this bill is being introduced in the Senate, and I sincerely hope that it is the last time and that it will be passed in the Senate and in the House of Commons as soon as possible.
Madam Speaker, honourable colleagues, supporting Bill S-206 will allow us to help the Canadians who are summoned to jury duty to better experience and survive this civic duty. Let us discuss this issue and refer the bill to the committee for study. Thank you for your attention.
Hon. Senators: Hear, hear.
Hon. Pierre J. Dalphond: Honourable senators, I would like to take part in the debate for a moment to note that the topic we are discussing here is very important. I would also like to congratulate Senator Boisvenu, the sponsor of this bill, as well as Senator Moncion, who described her experience as a jury member. I would like to add a few comments, so I will adjourn the debate for the balance of my time.
(On motion of Senator Dalphond, debate adjourned.)
Income Tax Act
Bill to Amend—Second Reading—Debate
Hon. Ratna Omidvar moved second reading of Bill S-216, An Act to amend the Income Tax Act (use of resources of a registered charity).
She said: Honourable senators, I rise today to speak to Bill S-216, the effective and accountable charities act. During the last parliament, this bill not only passed the Finance Committee but also passed this chamber in June without amendments. I say this because I am re-tabling the exact same bill from the last parliament with the hope that it can receive the same support from my honourable colleagues.
Senator Plett, who was the critic of the bill at second reading, said, “This bill is long overdue.” Although he stood in the role of critic for this bill, he noted that he is very supportive of this legislation.
For those who, like me, have a frail memory, let me take it briefly from the top again.
The bill amends the language in the Income Tax Act which currently limits registered charities to spend their charitable dollars on their own activities. Charities can, of course, make gifts or grants to other charities, but the act as it is currently worded limits them otherwise to spending their charitable dollars on activities that they undertake themselves.
However, I think, in these times especially, we all recognize that there are times when the best way for a charity to pursue its charitable purpose is to work through non-charities, such as not-for-profit groups, social enterprises, co-ops, civil society groups, even businesses and others who are on the ground and may well be the best partner for the charity to achieve its impact. Senators, this is true for charities both working domestically and internationally.
Let me provide you with an example. The last time I spoke, I provided the example of the YWCA. The example is still a good one. The YWCA receives charitable dollars from Canadians and foundations. It can grant these dollars further or it can use the dollars for its own programs and activities. The policy rationale is grounded in accountability for tax-exempt charitable dollars. So far so good; no one can argue against accountability.
But what happens if the Y or the Girl Guides, or Big Brothers Big Sisters want to work with — let’s say, because of the context — Afghan women who speak little or no English to help them become financially literate or provide leadership training to them? Then the best path to success may be to work with a local group of Afghan women who may not be a charity but, instead, a not-for-profit or even a loose group of individuals.
In this case, because the act stipulates that charities must spend charitable dollars on their own activities, the CRA guidance to the law kicks in. The CRA stipulates that when charities work with non-charities involving tax-exempt dollars, they must exercise direction and control over any such work so that the activities carried out by the non-charity are technically activities of the sponsoring charities. This is the CRA’s way of ensuring compliance with the law.
Terrance Carter appeared at committee this year or last year; I forget. He is a well-known charity lawyer. He said to the Finance Committee:
This methodology is outmoded, impractical, inefficient, inordinately expensive, unpopular and fails to meet the objectives of the ITA. It is built upon the fiction that everything that a charity does through an intermediary must be structured as the activity of the charity itself . . . .
And this is the case even when all parties involved know that this is, in fact, the activity of the third party. This is what charity lawyers call the legal fiction. These are the facts, colleagues. They may sound largely technical but they have an outsized impact on charities. You will hear me refer to the language of “own activities” in the act and the language of “direction and control,” which is the guidance issued by the CRA.
These four words — “own activities,” “direction” and “control” — have a far-reaching impact on charities, who they work with and how they work with them and, as a result, how much charitable benefit can actually be provided.
The report by the Senate Special Committee on the Charitable Sector, led by Senator Mercer, which was passed unanimously in the Senate last year, found that this approach — an attempt to ensure accountability of tax-exempt charitable dollars — is costly, inefficient and inconsistent with contemporary values of equal partnership, inclusion and local empowerment.
The committee, therefore, recommended moving away — towards a new approach — from the language of “own activities” and away from “direction and control” to one exercising a better, more effective and more efficient regime without sacrificing any measure of accountability.
The charitable sector — and by that I mean Canada’s many charities spread across our country engaged in charitable efforts in Canada and overseas — is squarely behind this recommendation. They include Imagine Canada, Canada’s largest sector organization of charities; Cooperation Canada, Canada’s umbrella group of charities involved in international development; the Canadian Centre for Christian Charities; the United Way of Canada, as well as 37 of Canada’s top charity lawyers who, in an open letter, called for a change to this law.
In addition, the Advisory Committee on the Charitable Sector for the Minister of National Revenue tabled its own report, and they too flagged the urgency to remove the language of “own activities” from the act. Many have told me that of the 42 recommendations in the Senate Charities Committee report, that is the one that requires immediate action.
So in a way, colleagues, I stand before you with this legislation as a proxy for the sector.
But I also want to take this opportunity to point out that these legal rules are a perfect example of an expression of systemic racism, which is embedded in Canadian law. As we know from our own deliberations in the Senate on racism, systemic racism is hard to detect. It is deeply embedded. It may not have any intended or unintended victims. It is unconscious. It lurks in dusky corners of institutions and yet it has an outsized impact on certain marginalized groups.
It did not start off that way, by the way. This particular feature in the Income Tax Act was brought into life in the 1950s. It had never been reviewed since then, and it was brought into life to ensure that charities and foundations simply did not transfer funds between each other without hitting the ground, to prevent self-dealing. But in so doing, it had the unintended impact of strangling cooperation and collaboration, and it has resulted in a system that either requires charities to behave in a controlling and oppressive manner in order to be in compliance with the law or to simply walk away from doing good work.
Let me be specific, colleagues. I know it is technical, so examples will provide some context.
Let me start with the impact of this law on Indigenous organizations and Indigenous change-makers that are not charities. Senator McCallum’s deconstruction of racism as it impacts Indigenous communities yesterday should put this in context for us all.
In most cases, Indigenous organizations, if they are not a band council or other form of local government, are not registered charities themselves. The only way they can receive charitable dollars is to consent to a very complicated and expensive agency or intermediary agreement between themselves and the sponsoring charity.
I need not describe to you what the two words, “direction and control,” mean to Indigenous organizations and Indigenous people. Any intellectual property that is the result of such an agreement is owned solely by the charity and not the Indigenous organizations. All public statements, including press releases, need approval from the funding charity. Every line item in a budget must be approved and re-approved if there is a minor change. The non-charity may be required to provide receipts, photographs, be subject to on-site inspections, provide minutes of meetings, written records of decisions and so on. Every legal document pertaining to the project must be signed by the charity, including leases, contracts, et cetera.
At times, the sponsoring charity may require the staff to be changed. That, colleagues, is not a partnership; it is tantamount to a takeover.
It is not a surprise, then, that many charities shy away from funding Indigenous organizations, first, because of the complexity of these rules and not wanting to offend Indigenous peoples. We know that grant-making to Indigenous groups and causes is very low. A recent study shows that Indigenous groups receive half a percentage point of all giving in Canada, which is annually $10.6 billion. I will repeat that: half a percentage point, colleagues. It is no wonder that many Indigenous partners view the law and its application as yet another form of systemic racism.
The same story unfolds when you look at racially marginalized people. It’s exactly the same context.
The example I provided last time from my own city of Toronto is a wonderful volunteer organization called the Black Daddies Club. It seeks to change the image of the “absent Black father” that is so prevalent in the media. It assists young men to become better fathers, but they’re not a charity. Because of that, they have to deal with the same issues if they want to work with charities: They have to create convoluted and expensive agreements; they have to sometimes agree to be hired on as staff of the charity; and as with all other agency agreements, they must sign over the intellectual property of the project to the charity.
As you can see, colleagues, I believe this law puts all partners at risk. It puts the charity and the non-charity at risk. The charity holds all the fiduciary governance and human resource responsibilities, along with the liability and the risk. The non-charity, on the other hand, must give over control of the project to the charity. No one wins in this scenario; everybody is diminished.
Finally, let me take you for a tour of Canadian charities overseas for whom this is bread-and-butter work — a daily issue. As we can appreciate, Canadian charities work in far-flung places, bringing health, education, housing and many other services to those places. Many of us in this chamber no doubt donate to such charities, but in order to comply with the law, they too have to contort themselves to stay within the law. They need to develop intermediary agreements, which is fine. They must exercise operational control, and direction and control, over a project that is happening thousands of miles away. Not only are there legal costs to be borne, but there are expensive educational costs to do with Canadian law that have to be carried out, such as policy documents, and separate protocols and processes.
As one example, I will cite the work of Samaritan’s Purse. It runs a $300,000 program in Nepal to provide essential health services to children in that region. Now, $300,000 might not sound like a lot of money here, but it goes a very long way in Nepal. It has seven partners in order to deliver on its charitable purpose. However, to be in compliance with the CRA, they are required to have a separate agency agreement with every partner. That includes separate financial statements, 22 periodic payments, 38 separate reports. With seven local organizations, this process is seven times more complex than it needs to be.
I have heard charities say that the risk, the administrative burden and the liability are simply too much for them.
In addition, Canadian charities cannot participate in pooled funding agreements with other like-minded jurisdictions overseas. They can pool their funds to advance a common charitable good and create efficiency for pooling. Canada cannot participate in these funds, because we cannot exercise direction and control over their funds.
Gloria Novovic from Cooperation Canada explained the impact on international charities in this way at the Finance Committee:
It is essentially a problem of a broken traffic light. Our peer countries, the U.S., the U.K. and others, consistently operate on a yellow light system: proceed with caution. Their partners, which have undergone due diligence checks as this bill would also suggest, can continue their activities as they make operational, context-informed adjustments. They later report on their efforts and demonstrate how they have used funds towards a very specific charitable purpose. . . .
For Canadian charities, this red light is a red light to more innovative partnerships, to collaboration with other donor countries who do not wish to get wrapped up in 70-year-old legislation and, more importantly, it is a red light to historically marginalized communities, to Indigenous, Black and other racialized groups . . . .
Colleagues, I have described the problem; now let me try to describe the solution. Before I do so, however, I am going to pre-empt a question that my wise colleagues will no doubt put to me: Why don’t all of these organizations simply become charities? The answer is not simple. First, groups overseas will not qualify for charitable status because organizations need to be resident in Canada to do so. Second, co-ops and social enterprises do not qualify because they do not have an exclusively charitable purpose. Organic social movements, like Black Lives Matter, would also not qualify because they’re not organizations; they are only movements.
As for not-for-profits, which really comprise the bulk of what I’m talking about, many of them are not charitable because charitable status with its accountability framework may well be out of their reach. The Black Daddies Club, for instance, is a very small organization of volunteers. To manage charitable status is out of their reach, but should they be forbidden to enter the public-goods space because of this law?
Finally — and this was a point that was heard again and again at the Senate charities committee — the definition of charity in Canada has not evolved since Elizabethan times. The four heads of charity remain what they are today: relief of poverty, advancement of education, advancement of religion and other purposes. Other jurisdictions, like Australia, have modernized the definition of charity and the Senate charities report identified the need to allow the definition of charity to evolve as an urgent matter. Until that happens — and I’m not sure it will — we are left with the old definition under which many organizations that I have described would likely not qualify.
Here is my solution: I propose we amend the Income Tax Act to move away from the current language of “own activities” to new language of “resource accountability.” The amendment before you, notwithstanding its length — and it looks complex, but it is really quite simple — does three things.
First, it replaces the reference to “charitable activities carried out by itself” throughout the act with two words, “charitable activities.” Because the act refers to the language of “own activities” in so many paragraphs, the amendment is therefore lengthy but 90% of the amendment is simply about cleaning up the language.
Next, it amends one section of the act to expand the definition of charitable activities to allow charities to use their resources for charitable purposes by taking reasonable steps.
Finally, it outlines what these reasonable steps are. They are:
(a) before providing resources to a person who is not a qualified donee, it collects the information necessary to satisfy a reasonable person that the resources will be used for a charitable purpose by the person who is not a qualified donee, including information on the identity, experience and activities of the person who is not a qualified donee; and
(b) when providing resources to a person who is not a qualified donee, it establishes measures, imposes restrictions or conditions or otherwise takes actions necessary to satisfy a reasonable person that the resources are being used exclusively for a charitable purpose by the person who is not a qualified donee.
There are also clauses about coming into effect and reviews.
This approach shifts the charity’s focus from ongoing operational control of activities to an approach based on taking reasonable and appropriate steps to ensure that the charity’s resources are devoted to achieving charitable purposes. It provides the CRA with a reliable working framework that funds and resources will provide benefits promptly while protecting the tax assistance that charities receive.
I want to be crystal clear, and I desperately want to finish my speech before 4 o’clock. Accountability for tax-exempt dollars is paramount. The charity must engage in full due diligence up front. The non-charity will be required to provide full accountability. When these agreements are complete, the non-charity will report to the charity about how the money is spent, but the non-charity will not be controlled or dictated to by the charity. The project management will rest with the non-charity.
I am quoting Senator Plett again, because he said it so succinctly:
By amending the Income Tax Act, we will ensure that a better framework is provided, which will be similar to the regulatory requirements in other countries and provides an opportunity for greater efficiency, effectiveness and coherence in our charitable sector . . . .
Should the language in the Income Tax Act change as a result of this amendment, the CRA would then actually change its guidance. The CRA may well choose consultations to finally ask charities to report on their annual reporting form a simple question: How much money did you spend with non-qualified donees? That would be a signal.
Some have asked me whether this law will prevent charitable dollars from falling into nefarious or rogue hands, especially into the hands of terrorist-related activities. My answer to that is, unequivocally, no. Let me explain why. First, terrorism financing by rogue charities is rare. Only 8 charities out of 85,000 in the last two decades have had their charitable status revoked. Second, Canada has anti-terrorism legislation embedded in the Criminal Code; there are institutions such as the RCMP, CSIS, FINTRAC and Five Eyes. Outside of this, we have the Anti-terrorism Act and Part 6 of that act lays out a number of processes, including the process for a charities revocation if its resources are made available either directly or indirectly to any listed terrorist entity. Further, the Budget Implementation Act, or BIA, that we passed last June provided additional tools to the government to go after rogue charities. The measures we approved in the BIA allowed the Minister of National Revenue to immediately revoke the registration of a charity upon its listing as a terrorist entity without going through a judicial process.
Honourable senators, I finally want to address the question of what other jurisdictions do. Well, the level of operational control exercised by Canada is unusual and virtually unique. The United States, which is the most security-conscious regime in the world, uses a similar model and they use the language of “expenditure accountability.” We are using the language of “resource accountability.” In the U.S., foundations can make grants provided the foundation provides for expenditure responsibility. In the U.K., charities may transfer funds to foreign partners provided that the funds are used exclusively to achieve the U.K. charity’s purpose, just as this law is proposing. In Australia, charities are required to appropriately manage their oversees activities and resources.
In closing, let me reflect on the role that charities have played in the dark hours of the COVID crisis. They have been at the front lines providing services to Canadians. Essential services — food banks, shelters and mental health counselling. Earlier this year, the sector, in its distress, urged the government to remove the “own activities” and “direction and control” rules to help it provide services quickly to people in need, and their call was not heard. It is indeed high time, honourable senators, to heed that call. Let’s not make it so hard to do good, especially at a time when we need a strong charitable sector in Canada. It should not have to work with one hand tied behind its back. I urge us to send this bill to committee as soon as possible. Thank you.
Hon. Terry M. Mercer: Your Honour, it was my intention to adjourn debate, but I see that Senator Lankin has a question. I would like to make that move after Senator Lankin’s question, if I could.
The Hon. the Speaker: We have two minutes, Senator Lankin, would you like to wait until the matter is called again or venture into the two-minute territory?
Hon. Frances Lankin: I will wait. Thank you, Your Honour.
Senator Mercer: On that note, I move adjournment of the debate.
The Hon. the Speaker: Actually, Senator Mercer, if you move the adjournment right now, it will preclude Senator Lankin from asking her question to Senator Omidvar when it’s called again. May I suggest that we just leave the matter as it is and when it’s recalled, Senator Omidvar will have the balance of her time and that will give Senator Lankin an opportunity to ask her question.
Senator Mercer: I agree, Your Honour. I want to hear what Senator Lankin has to say on this subject as well.
Senator Lankin: Thank you.
The Hon. the Speaker: Thank you kindly, Senator Mercer.
(At 4 p.m., pursuant to the order adopted by the Senate earlier this day, the Senate adjourned until 2 p.m., tomorrow.)