THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, May 12, 2021
The Standing Senate Committee on Legal and Constitutional Affairs met by videoconference this day at 1 p.m. [ET] to study the subject matter of the elements contained in Divisions 26, 27 and 37 of Part 4 of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures.
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: I am Mobina Jaffer, a senator from British Columbia, and I have the pleasure of chairing this committee. We are holding a meeting of the Standing Senate Committee on Legal and Constitutional Affairs today.
Before starting, I’d like to make a few helpful suggestions that we think will help you have an effective and productive meeting. If you experience any technical difficulties, whether with interpretation or otherwise, please inform the chair or the clerk and we’ll see what we can do to solve the problem.
Senators, I will do my best to have everyone ask a question. If you are not a member of the committee, please let the clerk know that you have a question. If you’re a member, you do not need to let the clerk know.
Senators, today we are beginning our pre-study of Divisions 26, 27, and 37 of Part 4 of Bill C-30, the budget implementation act. Divisions 26 and 27 deal with judges, and Division 37 deals with elections.
Minister, I will now introduce you to the members present here: Deputy Chair Senator Batters, Deputy Chair Senator Campbell, Senator Gold, Senator Boisvenu, Senator Boniface, Senator Carignan, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Pate, Senator Simons, Senator Tannas. Senator Moncion, the sponsor of the bill, will also be participating today.
For our first panel today, we are happy to welcome the Minister of Justice and Attorney General of Canada, the Honourable David Lametti. Senators, I caution you that Minister Lametti will only be here to discuss Divisions 26 and 27, regarding judges. He is accompanied by the following officials from the Judicial Affairs Section of the Department of Justice Canada: Patrick Xavier, Acting Senior Counsel; Toby Hoffmann, Acting Director and General Counsel; and Anna Dekker, Acting Deputy Director and Senior Counsel.
Minister, the floor is yours.
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Madam Chair. Good afternoon, honourable senators. It’s a pleasure to be with you today. I am joining you from my office in Ottawa on the traditional territory of the Algonquin people. I thank at the outset Patrick Xavier, Toby Hoffmann and Anna Dekker, who are on my team, for being here with me.
Thank you for the invitation to speak to these important amendments that are part of the government’s implementation of Budget 2021. This budget is about meeting the urgent needs of today and building for long-term prosperity.
Before I speak to the divisions that are the focus of this committee’s pre-study, I believe it is important to situate them within the overarching picture of the government’s vision as reflected in Budget 2021.
This is a budget that is unprecedented in too many ways to describe here. Suffice to say, it is a budget fundamentally grounded in reaffirming Canadians’ confidence in their strengths, resilience and in those aspects of society that have carried us through in the past and will continue to do so in the future.
First of all, we need to beat COVID-19. To do that we have to buy vaccines and provide support to the provincial health care systems. The people of Canada and Canadian businesses need our support to overcome the most recent waves and make a strong comeback once the economy reopens fully.
Secondly, the 2021 budget maps out a strategy for a forceful recovery from the recession caused by COVID. We also need to recoup the jobs that have been lost as quickly as possible and make sure that the hardest-hit businesses can rebound quickly and prosper.
Our government intends to build a better, fairer, more prosperous, and more innovative future.
It is against that backdrop that I would like to turn to Divisions 26 and 27 of Bill C-30. These divisions represent the government’s focus on two aspects of the justice system, which is a cornerstone of our society. Our government is committed to maintaining and enhancing public confidence in the justice system and the judiciary, and promoting access to justice and the capacity of our superior courts.
Let me first turn to Division 26. The Judges Act charges the Canadian Judicial Council with investigating complaints against federally appointed judges and, in cases of serious misconduct, with making recommendations to the Minister of Justice on whether the judge should be removed from office. If removal is recommended, the minister may put the question to a vote in both houses of Parliament, in accordance with subsection 99(1) of the Constitution Act, 1867. If both houses vote in favour of removal, the Governor General can remove the judge from office.
Judges have a right to challenge a recommendation for removal in court. In fact, they continue to accrue pensionable service during the time it takes to deal with such challenges, which may go as far as the Supreme Court of Canada.
This runs a risk of creating the perception that the judge launched the challenge with a view to benefiting financially by extending the time upon which their pension is calculated. This in turn risks undermining public confidence in Canada’s federally-appointed judiciary.
The purpose of these amendments is to ensure that such a perception does not occur, or is at least reduced as much as possible. That’s why this section amends the Judges Act to stop the accrual of a judge’s pensionable service on the day the Canadian Judicial Council recommends removal to the Minister of Justice, before any legal challenge is launched.
It also provides for pensionable service to resume accruing, as if it had never been interrupted, if the recommendation for removal is ultimately rejected by a court, on judicial review by the Minister of Justice or by one or both houses of Parliament.
Finally, it provides for a judge’s pension contributions to cease on the day their pensionable service stops accruing and for the judge to make up the missing contributions if accrual resumes.
As you may know, any changes to judicial compensation must be considered by the Judicial Compensation and Benefits Commission. These changes were considered and endorsed by the commission in a report dated October 28, 2019. To respect concerns expressed by the commission in its report about the fairness of making the amendments retroactive, the amendments will not apply to any recommendations for removal before they come into force.
I now turn to Division 27. The amendments in this division increase the number of judges by 13 to various courts across Canada. We recognize that an accessible justice system requires efficient court processes that help Canadians obtain timely resolutions to their legal disputes. That is why the government has committed to creating new judicial positions, to help reduce court delays and enhance access to justice across Canada’s superior courts.
The proposed amendments to the Judges Act, the Federal Courts Act and the Tax Court of Canada Act allocate the 13 new positions as follows: one new judge for the Federal Court of Appeal, five for the Ontario Superior Court of Justice, and two each for the Supreme Court of British Columbia, the Saskatchewan Court of Queen’s Bench and the Tax Court of Canada. Finally, a new associate chief justice position is proposed for the Supreme Court of Newfoundland and Labrador.
The budget announcement and the proposed amendments are the end result of a process set in motion several years ago by my department. Their purpose was to give the courts a standardized and foreseeable opportunity to request more judicial resources in compliance with the federal budgetary process and schedules.
A call letter was sent out to all superior courts, to ask them to indicate whether they need additional judges to deal with caseload pressures. My officials work with the court representatives, and with the provincial and territorial government representatives, to develop a business case analysis in support of their requests.
The creation of judicial positions is a major recurring public fund expenditure. The purpose of the business case is to provide as much empirical evidence as possible for an equitable and objective assessment of the judicial resource needs of each court. Its purpose is to provide federal decision makers — myself and my cabinet colleagues — with detailed up-to-date information that will enable them to provide available public resources.
The 13 positions included in Division 27 are allocated among the courts that submitted complete business cases in support of their requests. I recognize that the number of judges any given court receives does not always reflect what is requested. In response, I would note that it is for the government as a whole to determine how to allocate funding for additional judicial resources in the budget, in the light of overall government priorities.
As we have seen this year, more dramatically than ever, these government decisions are neither easy nor straightforward when we are faced with challenges that affect so many facets of daily life in Canada. At the same time, these 13 additional judicial resources allow the government to contribute to addressing delays for those courts experiencing them, and to underscore access to justice for Canadians is a top priority of the government.
Honourable senators, allow me to conclude where I began. The goal of the 2021 budget is to acknowledge the need to meet challenges that have come up, and which we are still facing, at a time of unprecedented problems. We need to draw upon our resolve on several fronts, and justice is no exception.
I’m pleased that the amendments proposed today have reaffirmed the government’s commitment to enhance public trust in the justice system and to increase the capacity of the superior courts to better serve the Canadian population that relies upon them.
I’d be happy to answer any questions you may have.
The Chair: Thank you very much, minister, for your presentation. Thank you to all the officials who are accompanying you as well.
Minister, before we go to questions, may I have a clarification? Did we have a gender-based analysis? I understand that there is a Budget 2021 Impacts Report, but besides that, was there a gender-based analysis for this bill?
Mr. Lametti: Thank you for the question, honourable senator. There was a gender-based analysis done for the budget as a whole, and you would have access to that. Obviously, my team drafted its submissions with gender-based priorities in mind, but because the legislation was written by the Minister of Finance, the gender-based analysis was done there.
The Chair: Thank you, minister. We will now go to questions.
Senator Campbell: Welcome, minister. You have been here so many times we will have to make you an honorary member of this committee.
The question that I have, and I’ve had some difficulty finding the answers to it, is how many actual vacancies do we have right now? I think appointing more judges is a good idea, and it’s based on the sound facts that you stated. How many vacancies do we have right now within your purview?
Mr. Lametti: As of May 1, we have 36, which is on the low end of vacancies. We will be making more appointments in the near future to get it down even lower than that.
Senator Campbell: As I said, I think this is a good idea, but in speaking to the various courts, I found their first complaint is almost always that they need more resources and that the vacancies need to be filled. I’m glad to hear that. Thank you very much.
Senator Batters: Thank you very much. I appreciate Senator Campbell’s words, and I’m going to continue in that vein.
Minister Lametti, part of Bill C-30 adds these 13 new Superior Court positions in order to “assist the courts in dealing with their caseloads in a timely manner.” However, for five and a half years your government has been criticized for failing to fill judicial vacancies promptly, including by the Senate Legal Committee. The number of federal judicial vacancies across Canada during your administration generally fluctuates between about 40 and 60, and that’s after this long in office.
It’s really not so much about creating these judicial positions. It’s much more about filling them. That’s what is solely in your government’s power, and that is what helps to lessen the major problems of criminal court delays in Canada, which can result in serious criminal charges being dropped. Your government continues to be deficient in filling judicial vacancies, so how can we be reassured that these 13 new judges will be appointed quickly?
Mr. Lametti: Thank you, senator, for your question.
In 2016, we put into place a new process for appointing senators that was more transparent and built on the rigorous work of judicial appointment committees across Canada. I think it’s fair to say that system took a bit of time to get started, but it has been working reasonably well, with the exception of the 2019 election when we went through a long period — and perhaps this is a lesson for the future. Between June 2019 and, effectively, when we got back up and running again with swearing in of ministers — in my case, a re-swearing in — we didn’t make appointments. Other than that, the system has worked very well.
We’re down to 36 vacancies. That number will go down again. I think the lesson we learned was we should continue to appoint judges except during the actual formal writ period, when there’s an election in view. The judicial advisory committees, or JACs, are working reasonably well. Sometimes, they are difficult to compose because they require participation from a variety of different quarters. Often, it’s provincial or territorial governments that are naming people as their representatives to those JACs, but they are up and running now. As I said, 36 vacancies is at the low end and it will be even lower soon. I think people are happy with the quality of the appointments that we have been making, both in terms of diversity and quality.
Finally, we have taken other measures to help speed up the system. Bill C-75 from the last Parliament is having a positive impact, and Bill C-22, which I have currently in front of the House of Commons and which will eliminate a number of mandatory minimum penalties, will have a great impact on speeding up the criminal justice system. Over half of the Charter challenges in Canadian courts right now are ones challenging mandatory minimum penalties, often with great success. These often clog up the systems and allow, sadly, judicial resources to be spent on people who shouldn’t be in jail in the first place because of the nature of their crime or charge. We end up wasting those precious resources on those kinds of cases. All of that will help, and we’re taking those measures seriously.
Senator Batters: First of all, 2016, when you put that new process in place, is now five years ago. The 2019 election started in mid-September, and your government was sworn back in by November, so it didn’t take much time away. Your government stayed in power, and you stayed in your same portfolio, so that should have lessened the time frame.
Mr. Lametti: I will dispute that, senator. We were told not to make appointments over the summer. This was the first time we had a fixed date in place for an election period, and I think the lesson for next time is that you keep appointing up until the writ.
Senator Batters: Minister, I will go to another area. In your —
The Chair: Senator Batters, may I put you on second round, please?
Senator Batters: Of course.
Senator Moncion: Thank you, minister. I apologize for my late arrival at the meeting.
My question is about Division 26 of Part 4 of the bill to amend the Judges Act. Can you explain why different rules should apply to judges?
Generally speaking, in employment law and labour law in other sectors, benefits do not cease upon revocation, but only after a final decision has been made. In the bill, why do you propose different treatment, namely from the moment there is a recommendation for removal, the person ceases to receive their salary?
Can you explain the new office in this bill, the change that you want to make with respect to what happens in other instances where, further to misconduct, the person remains in the position? They are on leave, but being paid. I think that’s how it currently works in the system.
Mr. Lametti: Thank you, senator, for your question. Judges are a special case because it’s important to maintain the general public’s trust in the justice system.
When judges are accused of illegal behaviour, it is true that in the course of the proceedings, they continue to accrue years of service during the time it takes to deal with such challenges, it gives the impression that they might be using these challenges as a strategy to increase years of service.
We have just gone through, senator, a situation like this with a judge appointed by the former government. The person in question did everything possible to extend the process. That person eventually retired at the end of the legal proceedings and I announced publicly that I was going to take action for removal under section 99 of the Constitution.
Unfortunately, nothing can be done, but it was the judges and the commission that wanted this change. Judges are very sensitive to their reputation and to public trust in their work. We worked with them, but they wanted the change.
Senator Moncion: Thank you. Under what circumstances would the Minister of Justice recommend to the Canadian Judicial Council that a judge be removed? Are there precedents? If so, what are they?
The bill mentions the judiciary’s recommendation and the assignment of ultimate decision authority to the minister. Could you explain to us the circumstances in which you would use this power and tell us whether this has ever happened?
Mr. Lametti: To my knowledge, it has never happened. There is no precedent. When drafting the bill, it was a safety valve. We respect the independence of the judiciary and allow judges the right to defend themselves, whether in court, before one or other of the two chambers — the Senate and the House of Commons — or before the Minister of Justice. Similarly, this is part of my role for people who have been convicted and who still have the option of asking the Minister of Justice to intervene.
It’s difficult to speculate, but I can tell you that it would be extremely unusual and has never happened in the history of our federation.
Senator Dalphond: Thank you, minister, for being here today. You said in your opening comments and in your reply to Senator Moncion, that judges wanted this change. Could you tell us more about this? In particular, could you explain what measures were taken to maintain judicial independence?
Then, for my benefit and for the benefit of my colleagues, could you tell us how many judges have been subject to a recommendation for removal since the introduction of the current process and the creation of the Canadian Judicial Council?
Could you also remind our colleagues that a recommendation for removal comes only after a process is set in motion either by the Minister of Justice, or by the receipt of complaints deemed sufficient to justify an investigation by the Canadian Judicial Council?
Mr. Lametti: Thank you, senator, for your question. Yes, the Canadian Judicial Council, the CJC, recommends the removal of a judge following a process, further to a complaint to the Minister of Justice or a third party.
To my knowledge, Senator Dalphond, it’s never happened before. There have been investigations, but never a recommendation for removal. It would certainly be unusual. Unless I’m mistaken, it has never happened more than once or twice.
The Judicial Compensation and Benefits Commission approved these amendments in a 2019 report that recommended a solution of this kind. I can also say that the CJC wanted to find a solution. Amendments were also to be made to the act by means of a bill to redefine the appeal process, which is the other part of the solution.
I can tell you, senator, that the work is underway and that a conclusion will be reached very soon. It’s really the CJC, chaired by Chief Justice Wagner, who encouraged these changes.
As I just mentioned to Senator Moncion, judges — and you are aware of this too, in view of your experience — are very sensitive about the judiciary’s reputation, transparency and behaviour.
The Chair: Thank you, minister.
Senator Simons: Thank you very much, minister. I note that while this legislation will provide new judges for British Columbia and Saskatchewan, there will be no new judges for Alberta, and I also note that you said the judges were distributed based on the business cases made and submitted by the provinces.
Could you tell me if the Province of Alberta in fact submitted a request for more judges, given that we’ve had a long-standing problem here of a lack of judicial resources for our province?
Mr. Lametti: Thank you, senator. I will turn to my officials in a moment for an actual answer on an Alberta submission. I can say we worked closely with the provinces and it is, as I said, an ongoing process. As I said in my opening remarks, we regularized a process by which provinces will be able to continually apply and be aware of the budget cycles. We’re hoping that this isn’t the last time we create new judges. In fact, I did ask for more in the budget. It is an ongoing need, but as with all decisions there are a number of difficult choices that have to be made.
Is anyone on my team able to answer the particular question with respect to Alberta?
Senator Simons: I’m very curious to know whether the province actually submitted a request.
Toby Hoffmann, Acting Director and General Counsel, Judicial Affairs Section, Department of Justice Canada: Thank you, senator, and thank you, minister. My colleague Anna Dekker is on as well.
The 2019 process predates my involvement. I know Ms. Dekker was in our section at the time, so I would ask her to offer anything further if she can. Thank you.
Anna Dekker, Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Department of Justice Canada: Thank you, Mr. Hoffmann. Thank you for the question.
We worked with various jurisdictions that made requests, and there is a standardized process through which courts or governments can make such requests. In terms of the request that was the basis for the Budget 2021 allocations, Alberta did not submit a request at that time.
Senator Simons: Thank you very much. I appreciate that.
Senator Cotter: Welcome, minister. It’s great to see you joining us again, as you seem to do regularly. I have three questions, and I’ll ask them one at a time. If I get punted to the second round for some of them, I will.
This builds upon your answer to Senator Dalphond’s question about the whole process of judicial conduct and judicial misconduct. I’m supportive of the change that you have brought forward and will vote in favour of it, but this change, at least from a fiscal point of view, is actually a small dimension of the overall cost of dealing with judicial conduct questions and judicial misconduct. The process is lengthy; it’s costly. In terms of what brings the administration of justice into disrepute, my suggestion to you is that process, its costs and delays is — from the perspective of judges and the public who pays attention — more problematic. I’m interested in your response to those changes and the urgency of those changes from your perspective.
Mr. Lametti: Thank you very much, Senator Cotter. I agree with the basis of your question, if you will, and all the presumptions and facts behind it.
The CCM and the judges — the CCM is the chief magistrates — also the Superior Court Judges Association and others, have come together and made suggestions with respect to the process, as you rightly point out, in order to create not only a fair process but one that is efficient; one that protects the interests of a judge who has had a complaint or a serious charge levelled against him or her, but also makes sure the process isn’t interminable, that there’s a clear line for appeals, but only one clear line for appeals in the sense that you can’t appeal and re-appeal. That’s the situation we’ve just gone through, sadly.
We now have a proposal from them on the table to clarify that process, to make it consistent, coherent and efficient, but still maintain fairness and justice while making sure it’s a transparent process. As I had alluded to in my answer to Senator Dalphond, this is something that would be tackled in a law with the support of the judiciary. That would tackle the problem.
Senator Cotter: In the list of various new positions that are created, there’s one associate chief justice position created. I think it was at the request of Chief Justice Fry in Newfoundland and Labrador. There is a sort of inconsistency across the country with respect to which courts have associate chief justices and which do not. Is there a structure or approach that you and your colleagues bring to this question?
Mr. Lametti: Thank you for that question. Again, I agree with the observation. This is a request that came from the Chief Justice of Newfoundland and Labrador. It’s effectively an administrative position, as you know, and it was meant to bring the Newfoundland and Labrador court into line with the court in Nova Scotia in particular, which did have a position.
My sense of it is that we rely on our chief justices to tell us if they need this position and to justify it. It is an additional investment in the court, and it depends on the size and docket of the court and jurisdiction, but your observations are correct.
Senator Pate: Welcome, minister. It’s great to see you and your officials. I have two questions and, similar to Senator Cotter, I’ll ask them both and hopefully you will have a chance to answer them.
Given that we know that there are very few removals, judges have an incentive to delay removal proceedings and that delay has been openly abused by judges such as Justice Michel Girouard, and the fact that Division 26 does not apply to judges under inquiry at the time of the bill would come into force, it raises some questions. Is there a reason that you decided not to have those who are already under inquiry included in this?
Second, given that the 2021 budget also includes a commitment to re-establish the Law Commission of Canada, what role would you see the Law Commission having in reviewing some of the challenges that have been brought by racialized, Indigenous and Black communities about the need to redress the lack of representation in the judiciary?
Mr. Lametti: Thank you, senator, for those two questions. Let me answer the second one first, because I’m absolutely delighted that the Law Commission is coming back. It means a great deal to me as the Minister of Justice and as an academic, but also as a mentee of the late Rod Macdonald, who was one of the commission’s presidents and who had a profound impact on my life and career. I am absolutely delighted.
One of the reasons that I used to justify refunding the Law Commission was precisely to tackle questions of systemic racism in our justice system, and to be able to provide and bring the best advice together from Canadians of all walks of life, as well as international, Indigenous and non-Indigenous, in order to get to better ideas. That was certainly one of the narratives that I believe helped to convince my colleagues that this was a good thing.
With respect to sitting judges, there is a retroactivity question and a fairness question in changing the rules and applying them retroactively. We decided it was simply fairer to move prospectively. As I said, the pension accrual is part of this financial package, and prospective legislation, which judges have had a large part in fashioning with respect to fair conduct proceedings for the future. We think that’s the right balance in terms of fairness. Although we don’t like to see others who may or may not have abused the system, it is, sadly, fairer just to move forward with a new and clear set of rules and apply them prospectively.
Senator Boniface: Good afternoon and thank you, minister, for being here once again. My question has to do with Division 26, on the issue of stopping the accrual of pensionable service in the event that the recommendation of the CJC was overturned. I assume you have anticipated that you would have to engage in some retroactivity based on pension amounts and pension time. Am I correct in that?
Mr. Lametti: Absolutely. Both in the amounts that would have accrued from the government source and also allowing a person to reinvest any personal amounts as well.
Senator Boniface: My second question goes back to Senator Batters’ question around the appointment of judges and the vacancy rates. You indicated that you have Bill C-22 on the way and Bill C-75. Is there actually a comprehensive strategy to deal with the backlog and smoothing the system out that falls beyond the question of new judges and Bill C-22 and Bill C-75?
Mr. Lametti: Thank you for the question. We’re always attuned to how we can make the criminal justice system better.
There were a great many reforms brought in with Bill C-75, so we’re still seeing how they work themselves out in the system. We’re obviously working closely with provincial and territorial counterparts to keep an eye on the process to see where we could move more quickly.
That is particularly true, senator, in the current context of COVID. You’ve heard me tell this panel before that I co-chaired a committee with the Chief Justice of Canada that included provincial representatives as well as judicial administrators and chief justices from various courts across Canada, in order to, again, share information and develop best practices in order to keep courts running, but also to help them in the restart, and that will continue. All courts have continued to some extent during COVID with some slowdowns in various areas, but we’ll continue to work with that and, again, try to keep information flowing in the system so that we can continue to improve its efficacy.
Senator Boniface: Thank you, minister.
Senator Dupuis: Good afternoon, minister, and thank you for being here today. I have two questions, one of which, the more specific of the two, is a follow-up to the answer you gave to Senator Moncion. Does the amendment to Division 26 mean that the right to a pension is what is interrupted from the moment a complaint is filed against a judge, and not the salary? Have I understood correctly?
Mr. Lametti: Yes, following a decision by the Canadian Judicial Council. It doesn’t happen as the result of a complaint, but only once a decision is made by the Canadian Judicial Council.
Senator Dupuis: So it’s not the salary that’s interrupted, but the possibility of accruing pension funds?
Mr. Lametti: Yes, that’s right.
Senator Dupuis: Thank you for that clarification.
My second question pertains to the criteria used to increase the number of judges in the provinces. You explained that the courts themselves determine their own needs. The Legal Affairs Committee studied criminal justice delays, and heard very different opinions from a number of chief justices, according to whom there was no delay problem. They had introduced various measures and gave concrete examples of steps that had been taken to reduce the delays.
Beyond the needs that were established, when a chief justice says that a certain number of additional judges are needed, are criteria based on the population of each province or the number of crimes leading to charges in each province, or rather are these criteria uniquely based on the needs stated by the chief justices?
We understand the principle of judicial independence. However, when it comes to transparency in appointing judges — two more here, three in Ontario, two in Nova Scotia, the deputy chief justice just appointed in Newfoundland because Nova Scotia has one — it all looks rather arbitrary.
How does one go about getting more information? Can these criteria be made public, because the public’s trust in the system also depends on the transparency of the criteria used?
Mr. Lametti: Thank you, senator. Yes, there was an attempt to introduce a stable and objective process by means of objective criteria. So we do take population into consideration. I’ll ask Ms. Dekker to provide additional details and to clarify how the criteria are factored in.
Ms. Dekker: Thank you very much, minister, and thank you, senator, for the question. I’d be happy to provide a bit more information about how the Judicial Affairs Section goes about assessing the business cases that are prepared.
As you’ve heard, often it comes through a request from a chief justice, and they will note that there have been struggles with caseloads and so on. So the critical question is how the court is dealing with caseloads that they face. Relevant information includes such things as trends and new filings, so broken down into categories like criminal or civil or family, trends and patterns of case flow such as wait times, and the availability of judges, which can also be counted by sitting days or hours.
Most importantly, we look at trends in case volume inventory. If it has been steadily increasing, that indicates that the judicial complement may not be sufficient. If the incoming caseload and the inventory does not decrease, that could be a function not only of incoming case volumes or it could be complexity.
So as the minister has indicated, it’s not a formulaic application because different jurisdictions have different abilities to generate statistical information on the one hand, but also that we work with the jurisdictions to assess each request on its own merit.
As you mentioned, Senator Dupuis, chief justices manage their courts, and that is a matter for judicial independence. So because of demographic or geographic or social conditions that vary greatly — as do, for example, out-of-court settlements or the measures that have been put in place — comparisons across jurisdictions might be one way, but population is not a driving factor.
Because the data that the courts provide to us and share with us are provided confidentially and are very closely associated with the judicial function, which in turn relates to judicial independence, we try to respect that with them, and provide our advice to the minister on the basis of those figures. So it is more than simply a request for more judges. We work with the jurisdictions and the chief justices’ offices to ensure that there is data to back up —
Senator Dupuis: Thank you for your answer. I’d like to sign up for the second round of questions.
Senator Carignan: Thank you, minister, for being with us today. It’s always a pleasure to see you.
You told Senator Dalphond that it’s extremely rare for recommendations to be made to remove a judge. You added that to your knowledge, it was difficult to find any. I’ll take it for granted then that based on your experience, there have been very few.
Why introduce such a specific provision in an omnibus bill — because what we have before us is an omnibus bill — when it’s a theoretical application? Why not do an in-depth reform, as was recommended by Justice Wagner, the Canadian Judicial Council, and your mandate letter?
Mr. Lametti: Thank you, senator, for that excellent question. The answer is yes. We are going to proceed with a reform. The Canadian Judicial Council and the Judicial Compensation and Benefits Commission have just sent us a report on this matter and we’re going to follow their recommendations.
We only settled part of the problem in the budget, namely the pensions issue. I must admit that this came about because of the case involving Justice Girouard, Who took advantage of the system because the process was not clearly defined. There were uncertainties about the appeals that could have been launched. I must say that he availed himself of every opportunity to appeal the decisions.
The judiciary’s response, which aimed at creating a system that was transparent and fair, and that protected individuals, was truly positive. We are therefore going to follow the recommendations in my mandate letter, as you just mentioned. We hope in the near future to be able to implement the remaining recommendations by means of a bill.
Senator Carignan: I understand, but this provision will not apply to Justice Girouard. According to the provision in the budget, it cannot be applied retroactively.
Mr. Lametti: That’s correct.
Senator Carignan: Historically, such cases are very rare. It will probably never be enforced.
Why then wasn’t enough time taken to do the work properly? Bill C-3, concerning judges, was introduced. We have ended up with a small piece of an omnibus bill and it would appear that we’ll begin another broader reform at a later date.
Why not combine it all together, which would allow us to evaluate the whole issue and determine its impact? When dealing with the judicial process, with due regard to judicial independence, once you lift one rock, another rock and another again without having an overview, you’re threatening judicial independence and exposing yourself to possible challenges. Why don’t we go for the big picture rather than the pieces, which in this specific instance will likely never be applied?
Mr. Lametti: I must say that I don’t share your opinion, senator. The Judicial Compensation and Benefits Commission asked us to take action on pensions as soon as possible. That’s what we are doing. It’s included in the budget because it has to be part of a budget. We’re going to move it forward with a bill. The Senate will have its role to play. It will have the opportunity to study it and ask us questions. I don’t share the assumptions underlying your question.
We are doing the right thing by working together with the judiciary, precisely because it has a right to be independent. We work together, we have a very positive relationship and we are going to correct the situation properly.
I also don’t share the view that we ought not to do anything because it hardly ever happens. We saw one case where things might have been resolved in a fairer manner. So it’s important to be prepared and we will be prepared.
Senator Carignan: So why didn’t you amend the Governor General’s Act at the same time?
The Chair: Over to Senator Boisvenu now.
Senator Boisvenu: Good afternoon, minister. I’d like to reiterate the acknowledgements expressed by my colleagues. Thank you for being with us today.
My question is along the same lines as the one asked earlier by Senator Dupuis when she requested clarification on the criteria. You don’t appear to have given a very precise answer. There are two parts to my question.
At the moment, there are many vacant positions in the judiciary, over 35, including several in Quebec. As we know, Quebec is one of the provinces with the longest judicial delays in Canada. In 2016, your predecessor had promised to introduce a much more efficient and effective hiring process for judges than we have today. All we have to do is look at the number of vacancies.
Are you going to introduce a second part of this reform? It’s obvious that judges positions are vacant and that makes the backlog even worse.
When it examined court delays in 2013 or 2014, the committee, which was chaired at the time by Bob Runciman, proposed to the government that retiring judges — they retire around the age of 75, and we know the exact date when they leave the justice system—be replaced several months before they leave. As I said, we know the date. Based on current statistics, minister, your predecessor’s system hasn’t produced results. Will you be proposing a new system to ensure those positions are promptly filled and justice is efficiently done?
Mr. Lametti: Thank you for that question, senator. I obviously don’t share your view. I believe the system works very well. There are 36 vacant positions, but that number will decline in the coming weeks.
Once again, as I just said in response to your colleague Senator Batters, we’ve learned lessons from elections in a system —
Senator Boisvenu: Minister, some 50 judicial positions were vacant when your government came to power in 2015, and there are more than 36 today. Don’t tell me the system in place is efficient.
I’ll repeat my question. Will you be proposing that the government introduce a judicial replacement system that’s more efficient than the one currently in place?
There are seven vacant positions in Quebec, as a result of which courts are dealing with delays that are unacceptable, especially for the victims.
Mr. Lametti: Thank you, senator. I believe the system works very well. More than 400 judges have been appointed since 2016. There’s currently a total of 923 sitting judges in Canada, and a total of 1,211 including supernumerary judges. There are 36 vacant positions.
Senator Boisvenu: But you know the exact dates when judges retire, unless they die in office. We proposed a process for appointing judges to replace them before they retired. Have you put that process in place?
Mr. Lametti: We take into consideration the fact that there will be retirements, but we work more with lists of candidates assessed by judicial advisory committees. The process is in place across the country and is working relatively well. As I said, 450 judges have been appointed since 2015, and we’ve added 90 new positions since 2017. So I think it’s going very well.
We’ve introduced a process that guarantees very high quality and considerable diversity on the bench. I also believe the appointments are very well received, especially by victims and the legal community.
Senator Boisvenu: Thank you, minister.
The Chair: Thank you, minister. Senator Carignan, you indicated to me you had a very short question. I will give you a very short question if you want to go now.
Senator Carignan: I actually asked my question, but I didn’t get an answer.
The cases may be very rare, but we had a rare case with the Governor General. There was also an issue with her pension. A person can be appointed Governor General, occupy the position for one day and then resign with a full pension. That’s terrible.
If you did it for Judge Girouard — since it very rarely happens — why didn’t the government do it in the case of the Governor General, who resigned before the end of her five-year term?
Mr. Lametti: Thank you for that question. It’s a question you should put to Minister LeBlanc, who’ll be appearing shortly after me.
Senator Carignan: He will have heard my question and will have the time to prepare for it.
The Chair: Thank you, minister. I have a question for you. You mentioned Bill C-22, and as you know, we have even written to you. We are very anxious to receive that bill, and I was wondering if you could tell us the status of the bill.
Mr. Lametti: Thank you, Madam Chair. It is still in front of the House of Commons. We are trying to get it out of the House as soon as we can. It’s still on second reading, so it hasn’t gone to our committee for committee work, but it is our intention to get that bill through.
The Chair: Thank you, minister.
Senator Gold: Thank you very much, minister. First of all, it’s very nice to see you. As my colleagues have already mentioned, this is your third time appearing before this committee on Bills C-7 and C-3. Thank you very much for coming.
I just wondered if you could elaborate a little bit more with regard to the rhythm of filling a vacant judicial position. Can you give us a sense of what you hope to be able to accomplish in the course of a 12-month period, given both the new positions that are being contemplated here and the existing ones. What do you think is a reasonable expectation for the appointment of new judges?
The Chair: Minister, that’s a very long question, and we’re almost out of time. I see Minister LeBlanc is here, so I’ll give you two minutes to answer that question.
Mr. Lametti: Thank you, Madam Chair. It is a pleasure to be here. I’m starting to feel at home in front of this committee.
My goal is just to be continually appointing. The challenge in continually appointing is to make sure the JACs are continually up and running. They have a two-year term. Sometimes you’re taking time to reconstitute JACs, and then working constantly with the lists that the JACs provide in order to appoint judges in a timely way. It’s unreasonable to think we will ever get to zero, but in an ideal world, I do like to be running between 20 and 40 vacancies at any given point. I work doubly hard when it gets higher than that.
Sometimes, as I said, there are impediments, such as getting a JAC constituted where one of our appointing partners isn’t suggesting a candidate, so we have to push harder to make that happen. But, in general, I think it’s fair to say that if we don’t have a long period because of fixed election dates, we should be able to keep it around this and even improve the efficacy to some extent.
The Chair: Thank you, minister. Senators, I’m really sorry we could not get to a second round. Thank you for your patience.
Minister, you can see we have a lot of questions for you. I think we could keep you occupied for another hour. Thank you for always making yourself available, and I know we will see you shortly.
Mr. Lametti: Thank you for asking questions on the budget. I very much appreciated that. Thank you.
The Chair: Senators, for our second panel today, we have Dominic LeBlanc, P.C., M.P., Minister of Intergovernmental Affairs and President of the Queen’s Privy Council for Canada, here to speak to Division 37 of Part 4 of the budget bill, which deals with elections. The minister is accompanied by the following staff: Allen Sutherland, Assistant Secretary to the Cabinet, Privy Council Office, and Manon Paquet, Director, Special Projects, Democratic Institutions Secretariat.
Minister, before we proceed, I would like to introduce you to the members of the committee: Deputy Chair Senator Batters, Deputy Chair Senator Campbell, Senator Boisvenu, Senator Boniface, Senator Carignan, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Pate, Senator Simons, Senator Tannas and Senator Gold.
Minister, the floor is yours.
Hon. Dominic LeBlanc, P.C., M.P., Minister of Intergovernmental Affairs and President of the Queen’s Privy Council for Canada: Madam Chair, thank you. Honourable senators, thank you for the privilege of appearing before you.
Madam Chair, perhaps you’ll allow me a few personal comments at the beginning. It’s a pleasure to see you, even if virtually. We’ve known each other for over 20 years. I was thinking about that this morning. I’ve long admired your work in the upper chamber, particularly with respect to human rights.
I was looking at the membership of your committee. It’s an impressive and intimidating group of senators. I’m glad David Lametti appeared before me, so any complicated technical, legal questions coming from senators with such a vast array of legal and constitutional scholarship were properly posed to my colleague David Lametti. I am very much looking forward to this exchange, and I thank you for this invitation.
Honourable senators, as your honourable chair said, I am here to discuss any issue that you think I may be able to discuss, but in particular, Part 4, Division 37 of Bill C-30. As your honourable chair said, it refers specifically to provisions of the Canada Elections Act. Your chair introduced my colleagues from the Privy Council Office, who are also with me. They’re in Ottawa. I’m speaking to you from Moncton, New Brunswick, this afternoon. If there are questions that they with their expertise can better answer, I will obviously be happy for them to do so.
This particular portion of Bill C-30 proposes amendments to the Canada Elections Act to clarify that the provision which prohibits false statements about certain political actors requires knowledge that the statement is false.
This provision prohibits making or publishing false statements about certain political actors to affect the results of elections. This includes, amongst others, claims that such actors have committed a crime or claims about their citizenship, place of birth or education, to cite a few examples.
As many of you know, Ontario Superior Court of Justice ruled on February 19 of this year that that provision in the Canada Elections Act is unconstitutional and of no force or effect in Ontario.
The court held that, even though the provision requires proof of intent to influence the outcome of an election, it doesn’t require knowledge that the statement itself is false. Our government hasn’t appealed the decision because we believe a targeted amendment directly addressing the court’s concerns is preferable.
The proposed amendment would address the court decision by explicitly requiring that an individual or entity making or publishing the false statement knew it to be false. It would do so by adding the word “knowingly” to the two offence provisions associated with section 91. It’s important to note that, in its direction, the court recognized the importance of addressing the growing threat of disinformation.
Federal elections are important opportunities for all Canadians to be heard and, obviously, to express their opinions by casting a ballot. At the same time, the participation of electors and others, including registered third parties, for example, should come with clear rules and responsibilities. These include, for example, spending limits and prohibition on the use of foreign funds by third parties. With this amendment, these rules extend to protecting against deliberately false information intended to affect election results, which can have a devastating impact on trust in our democratic institutions.
In particular, it would guard against those individuals and entities who spread blatant falsehoods about political actors to affect election results, which often have a disproportionately negative impact on women, racialized individuals and Indigenous peoples, among other traditionally underrepresented groups.
Furthermore, the Commissioner of Canada Elections, the independent officer responsible for ensuring compliance with and enforcement of the Elections Act, stated in his 2018-19 annual report that a number of complaints received during the forty-third general election were related to the false statements provision.
This shows that Canadian electors and candidates, among others, are very much concerned about this situation.
Honourable senators, this amendment is also important because of the role this provision plays in guarding against deliberate falsehoods and, in the context of our broader efforts as a government and society, in combating disinformation.
I will conclude my remarks by briefly highlighting some of the important work the Government of Canada is conducting to address the growing and evolving threat of disinformation. For example, the Department of Canadian Heritage’s investments in the Digital Citizen Initiative aim to strengthen citizen resilience in recognition that Canadians are the best line of defence in our collective effort to fight disinformation.
Additionally, we recently published Multi-Stakeholder Insights: A Compendium on Countering Election Interference, which represents the culmination of the Government of Canada’s co-leadership, alongside Microsoft and the Alliance for Securing Democracy, in principle 3 of the Paris Call for Trust and Security in Cyberspace. I recently released this work with the President of Microsoft, Brad Smith, and the German Marshall Fund of the United States. The compendium was developed following a series of six workshops that were delivered in collaboration with international partners and experts from government, industry and civil society. It aims to share key observations and further the global understanding of ways to counter cyber-election interference.
These partnerships and initiatives, taken along with the proposed targeted amendments to the Canada Elections Act, help Canada to stay at the forefront of new developments in understanding and responding to this evolving threat environment.
Once again, Madam Chair, thank you for the opportunity.
I will be pleased to answer your questions. Thank you very much.
The Chair: Thank you very much, minister, for your remarks. Now we will go to the first question, which is from the sponsor of the bill.
Senator Moncion: Minister, thank you for being with us this afternoon and thanks as well for your remarks.
My first question is this: how does Bill C-30 fit in with the measures of the present budget?
Mr. LeBlanc: Thank you for your question, senator.
In a budget bill, the government obviously includes a number of provisions that, in many instances, make amendments to various bills.
The Ontario Superior Court rendered its decision barely a few months ago, in February, I believe. That’s very recent because I was consulted on the question whether the decision should be appealed. Since we have a minority in Parliament and never know when a general election may be called, we thought we could simply add a word to the Elections Act so the Ontario Superior Court’s decision wouldn’t apply solely to Ontario and a non-compliance situation in other provinces could thus be avoided.
Senator Moncion: Thank you. Would you please clarify that gap between Ontario and the rest of the provinces as it pertains to the amendment?
Mr. LeBlanc: First, since the court refused to suspend operation of the judgment, it took effect immediately upon the court’s decision. Consequently, Ontario will have a national elections statute that, in effect, will not be the same as in the country’s other provinces and territories. It isn’t ideal to have an election provision that doesn’t apply across the country.
Since the decision was made by the Ontario Superior Court, it applies solely in Ontario. That is why we thought this was the most effective way to comply with the court’s decision and, at the same time, to apply it generally across the country, if Parliament adopts this amendment.
Senator Moncion: Thank you.
The Chair: Thank you, minister. We will now go to Senator Batters, one of the two deputy chairs of the committee.
Senator Batters: Minister LeBlanc, prior to amendments made by your government to the Canada Elections Act in 2018 via Bill C-76, the word “knowingly” was in the act. When Conservative MPs opposed removing the word “knowingly” and tried twice to reinsert this word into Bill C-76, your majority government blocked those efforts. Your government now claims that the word “knowingly” was removed as a housekeeping measure.
In her judgment on the matter, Justice Davies said the following in referring to advice given by senior Privy Council Office official Lieutenant-Commander Jean-François Morin to the House of Commons Procedure and House Affairs Committee during their clause-by-clause deliberations on those Conservative amendments to Bill C-76:
More importantly, the advice given to the Standing Committee by Mr. Morin that the inclusion of the word knowingly in s. 91(1) was unnecessary, redundant and confusing was, for several reasons, incorrect and potentially misleading.
And the judge went on to list all the reasons why.
Minister, it is startling to see a judge so strongly criticize advice given by a senior departmental official to a parliamentary committee that is considering a bill. You were the President of the Queen’s Privy Council for Canada when this case was argued in that court last fall and when the scathing judgment was rendered in February.
What actions did you take in that department, if any, once you saw this judgment detailing the faulty advice your official gave to a parliamentary committee?
Mr. LeBlanc: Senator Batters, obviously, senior public servants who are regularly invited to appear before committees of your chamber or in the House of Commons give — to the best of their ability and knowledge — the advice and information they have.
We also respect that a judge in a court case before a particular court — in this case, the Superior Court of Ontario — can hold a different view. We respect the court’s finding, and that’s why we, for example, did not appeal the decision but are seeking to correct and, as you noted, put the word “knowingly” back into the legislation. We believed in good faith, at the time Bill C-76 was passed, that it would be a sort of a technical amendment that cleared that up. The court had a different view. We are happy to respect the court’s opinion and to act accordingly.
I don’t know if Al Sutherland or Manon Paquet would like to add something, but in our view, the advice tendered at the time was valid, the court had a different position and we are proceeding to respond to the court’s decision.
Allen Sutherland, Assistant Secretary to the Cabinet, Privy Council Office: Minister, I think you answered it very well. I have nothing to add.
Senator Batters: Minister, this went beyond a difference of opinion or a different viewpoint. It impacted the decision such that the judge said:
After a careful consideration of the amendments in the context of the CEA as a whole, I am left with only one plausible interpretation that Parliament intended the removal of the word knowingly from s. 91(1) to reflect a substantive change to the prohibition and offence.
I want to let you know that type of advice, minister, can have a dramatic impact, which can lead to a particular assumption by a judge on parliamentary intent. I’m assuming from your answer that you didn’t take any steps dealing with your department, but I just ask you to consider that.
The Chair: We will go to Senator Campbell, the other deputy chair of the committee.
Senator Dalphond: Thank you for being here today, minister. My question is more technical. Perhaps someone in your group can answer it.
The amendment you’re bringing is to section 486 of the Criminal Code, and the judgment to which Senator Batters refers invalidates section 91 because it doesn’t contain the word “knowingly.”
Could you explain to me why you’ve chosen not to amend section 91 in response to the judgment, but rather to amend section 486, under which the offence doesn’t require intent, the notion of “knowingly,” so that it must be proven that the defendant — the person or entity — acted knowingly?
Mr. LeBlanc: Thank you for your question, Senator Dalphond. You’re right, that’s the action the Minister of Justice chose for us to take in response to the Ontario Superior Court’s decision. Perhaps Ms. Paquet or Mr. Sutherland can provide some clarification.
I don’t exactly remember the advice we considered at the time. It was presented to me as the best way to make the correction. Your question is entirely appropriate, and my colleagues may be able to provide more detailed context.
Senator Dalphond: My question is very technical. I apologize for that, minister.
Mr. LeBlanc: We’d expect nothing less from a former appellate court judge. When I said you were an intimidating group, that’s what I meant. So I’m very happy to be able to put Mr. Sutherland in the hot seat.
Mr. Sutherland: Thank you, minister. We discussed this subject yesterday, and Ms. Paquet could answer the question.
Manon Paquet, Director, Special Projects, Democratic Institutions Secretariat, Privy Council Office: Thank you, Mr. Sutherland. Thank you, minister. This is a very technical question.
The judge considered the two provisions together. The decision to include the word “knowingly” in connection with the offence was made for the sake of uniformity and consistency with the Elections Act. For example, if you look at section 92, which is also a provision respecting false statements that might have forced a candidate to withdraw from a race, the word “knowingly” also appears in connection with the offence under section 486.
In most prohibitions in the Elections Act, the concept of “knowingly” is often repeated in relation to an offence.
Senator Dalphond: Thank you. That answers my question.
Senator Carignan: Going back to Senator Dalphond’s question and the answer he received, I’m not sure I really understood it. Perhaps Ms. Paquet could explain it to us in another way so I could understand.
I wonder if she could repeat her explanation because I’m not sure I really understood it.
Ms. Paquet: I can do that. In the Elections Act, you always have to determine where it indicates whether the statement was false. Consequently, you have to decide whether to indicate it under the prohibition itself, where it provides that no one shall make a false statement about a candidate, or to say that, if someone made a false statement, that is now an offence.
Under Bill C-76, in 2018, many concepts related to the notion of “knowingly,” that is, the question whether the statement is false, were placed under the heading of offences in an attempt to make the act slightly more consistent with respect to that function. For that same reason, even though the word “knowingly” initially appeared in section 91 before Bill C-76, it now appears under the offence rather than under the prohibition itself.
The judge viewed these two provisions as a whole. Consequently, placing them under the offence heading establishes this concept that it must be proven that the statement was false for there to be a conviction under that provision.
Senator Carignan: I have a question, minister. You probably heard it earlier because I directed it to Minister Lametti, and he deflected it to you.
I’ll repeat it. We’re considering changes to the Judges Act, particularly as a result of an extremely rare case, that of Judge Girouard, who dragged his heels leaving office so he could receive a pension, and you’re immediately rectifying the situation.
Another case recently occurred when the Governor General resigned before the end of her five-year term. She is nevertheless entitled to a full pension.
Under the act as currently drafted, a Governor General may be appointed for a day, resign and be entitled to a full pension.
Why didn’t you take this opportunity to correct this provision, as you’re doing for judges and as you’re doing with respect to the notion of “knowingly”? Since this is an omnibus bill, why not take the opportunity to correct this kind of mistake?
Mr. LeBlanc: Thank you for your question, Senator Carignan. It’s a pleasure to see you again.
As you’ve probably noted, the Prime Minister and I have commented on a Treasury Board review of the social benefits to which a retired governor general may be entitled in respect of office operating expenses. We have initiated a process with the Treasury Board that, I must emphasize, doesn’t involve the issue of a retirement allowance or pension as such, but that focuses on the expenses that former governors general may incur and for which, where applicable, they may be reimbursed.
The question was raised publicly in the House of Commons following Ms. Payette’s resignation. I asked the question whether, if we made an amendment, it would apply in Ms. Payette’s case. Since that kind of process obviously couldn’t apply retroactively, the government decided it wasn’t the time to consider the Governor General’s Act or to review matters pertaining to the retirement allowance or salary.
I draw your attention to a private bill now before the House of Commons that proposes that the Governor General’s salary be reduced to one dollar and that would terminate retirement allowances. We will obviously oppose that bill. We simply decided that this was not a priority right now and that we won’t consider the matter because, frankly, this is the first time in more than 150 years this kind of situation has arisen. We understand the time may be right, but, at the same time, this isn’t a measure we could have applied to former Governor General Payette.
Senator Carignan: Judge Girouard’s case is also highly unusual. We can see there’s a void. I don’t think the Governor General’s Act provided for a pension after five years. Imagine what that might be after a single day. Your father resigned before the end of his five-year term for medical reasons. There’s an obvious distinction between the two cases. That’s the only other case we’ve ever seen. Where it’s warranted, that’s fine, but when it isn’t, or when it’s after a single day . . . What’ll we do if it happens again and we didn’t immediately rectify the situation, as you’re doing for Judge Girouard, and as you’re doing for the term “knowingly,” when we have an omnibus bill that would make that possible?
Mr. LeBlanc: As you say, my father — you’re right — left a few months before the end of his five-year term, two or three months earlier, I believe.
As for Ms. Payette’s situation, you’re absolutely right. I don’t think people understood that the retirement benefits are the same whether you occupy the position for five minutes or five years. I understand the frustration that people felt in Ms. Payette’s case. We’re open to the idea of examining this kind of issue.
I honestly didn’t draw the parallel with the amendments my colleague Minister Lametti brought before you in Judge Girouard’s case. You’re right, however; perhaps that’s something we’ll have to consider.
I understand the concern; we hope it only happens once for the next 154 years. You have to assume we can learn something from this situation. I accept your comment as a suggestion, and I’m quite sensitive to it.
Senator Boisvenu: Welcome to our committee, minister.
Continuing along the same lines as Senator Batters, we’re seeing a lot of back-and-forth on this subject by the government. Sometimes it’s hard to follow you.
However, if we amend this paragraph of the act by adding the word “knowingly,” aren’t you afraid the Ontario Superior Court may invalidate that amendment?
Mr. LeBlanc: Thank you, Senator Boisvenu. It’s a pleasure to see you again as well.
In the Department of Justice’s view, the proposed amendment won’t be dismissed in another court challenge. The Department of Justice has told us that, in its opinion, this was the most direct and most efficient way to react to the Ontario Superior Court’s decision. Perhaps Ms. Paquet or Mr. Sutherland has some details to add that might answer your question.
Senator Boisvenu: Today you have a legal opinion in favour of adding the word “knowingly,” but did you also have an opinion in favour of deleting it a few years ago?
Mr. LeBlanc: I wasn’t involved in those discussions at the time. Perhaps Ms. Paquet or Mr. Sutherland can provide some details.
Mr. Sutherland: Just to say that the discussions have been internal with Justice, jurilinguists and with people preparing the amendment, that we have been very sensitive to what both Senators Boisvenu and Batters have said. We have worked very hard to ensure that we are certain that the amendment has been put in the right place.
Manon, do you have anything else to add?
Ms. Paquet: The only thing I’d add is that, when we considered Bill C-76, the point my colleague raised was that an intention was already included in the provision since the statement had to be made for the purpose of affecting the outcome of the election. The court held that this wasn’t a sufficient intention and that there had to be a second intention, that of knowing.
Senator Boisvenu: That’s not my question. In 2017-18, you were opposed to reintroducing the word “knowingly,” and today you’re reintroducing it and telling us you have a legal opinion that this is constitutional or that it won’t be challenged. Why was it white in 2017 and now black today? I’m trying to understand the logic of your legal analysis.
Ms. Paquet: The big difference between today and when Bill C-76 was examined is really the decision the court rendered last February, that the provision as drafted did not meet the conditions. Consequently, by adding the word “knowingly” today, we’re being consistent with the court’s decision.
Senator Boisvenu: That’s not my question. Why was your thinking not the same at the time, knowing that deleting that word would be challenged in the courts? The courts haven’t changed their philosophy in the past three years.
Mr. LeBlanc: With your permission, senator, allow me to promise to get back to you with a clear answer. I remember the discussions we had on Bill C-76 in cabinet at the time. I’ll be pleased to find specific information on context and provide it to the members of the committee.
Senator Boisvenu: You have a very skilful way of getting out of trouble, minister.
Mr. LeBlanc: I don’t agree with your comment about the courts not changing in three years. The courts change from one hour to the next. You can see that across the country. I’m not as sure as you are that it won’t change. Thank you for that question.
Senator Pate: Thank you, minister, for joining us. In our 2017 report entitled Controlling Foreign Influence in Canadian Elections, this committee concurred with the Chief Electoral Officer’s recommendation in a document entitled An Electoral Framework for the 21st Century that a new provision should be added to establish a specific offence for the creation and distribution of false candidate or party campaign communication material, including false websites or other online or social media content that has as its intent to mislead electors. The committee added that this offence should also explicitly prohibit foreign entities from engaging in such activities.
In your opinion, and perhaps your officials as well, how do the amendments in Bill C-30 to sections 486(3)(c) and 486(4)(d) of the Canada Elections Act address this recommendation?
Mr. LeBlanc: Thank you for the question. You’re right, we’ve obviously taken note of the report you referred to. The government, the cabinet and certainly as the minister responsible for the Elections Act, in recent months I have been working across the government with some of the officials who are with me today from Privy Council Office, and obviously with the security and intelligence community of the government, around this issue of foreign interference. You’re absolutely right. The threat environment, the context and Elections Canada have drawn this to public attention. I have had conversations with the Chief Electoral Officer around this issue as well.
So we’re trying, across the government, to put in place a number of measures, not only legislative ones. I’ll ask Al or Manon if they have specific answers in terms of how this provision might address that context.
Just to reassure you and your colleagues on the committee, apart from the specific legislative dispositions, we are very engaged with G7 allies and the Five Eyes security community in doing everything we can. Canada has sort of taken a leadership role in the G7 as a result of the Paris Call with Microsoft, for example, in this space. So we’ll have more to say and continue to do the work that we think Canadians expect, because the threat, as you noted, is not diminishing. If anything, it’s increasing.
In terms of the legislative disposition, Manon or Al can perhaps add some precision as to this particular clause and the threat of foreign election interference.
Senator Pate: Just before you do, if you could also comment on whether the provisions that have been introduced are sufficient to address these issues. Thank you.
Mr. Sutherland: Just to note that the urgency behind putting this provision in the BIA and making the changes is to make sure it’s enforceable. I think you mentioned that websites do things like make reference to political actors having committed crimes and make claims about citizenship, as we have seen in the presidential context in the United States with the Birther movement, or talk about place of birth or education. It does specifically address this.
You asked me a broader question, or you suddenly expanded the scope of the question as I readied my answer. I think in truth, there is no single element that is going to capture everything. That’s why Minister LeBlanc is leading a government-wide effort to make sure that Canada is ready, if and when there is an election, that our system is ready to combat foreign disinformation in particular. Certainly what we saw in the 2019 campaign was a government-wide effort to address this issue that involved multiple government departments, making sure that Canada’s election stayed safe and fair. I hope that helps answer.
Senator Dupuis: Good afternoon, Minister LeBlanc. Welcome to the committee.
My question is further to the information you’ve provided us. You mentioned that activities and false statements can have a more significant or disproportionate impact on certain groups, such as women and racialized individuals. What data can you share with us on that subject? Is that data included in the gender-based analysis plus that Minister Lametti says was conducted by the Department of Finance?
I understand you didn’t conduct that analysis, but can you provide us with the data you have? Was it considered in that analysis?
Mr. LeBlanc: Thank you for your question, senator. You’re absolutely right. We tried to conduct a gender-based analysis plus, a GBA+, in the context of the budget and the C-30 budget bill, but it’s a directive that applies to any brief a minister submits to cabinet.
Having discussed it with my colleague, the minister for gender equality, and Minister Chagger, who’s responsible for diversity and inclusion issues, I know we’ve heard stories from our Liberal caucus colleagues whose electoral circumstances are very different from mine in New Brunswick. I know too that this analysis was also presented by the Federal Anti-Racism Secretariat. I remember those discussions, which were quite animated, because they were with our own colleagues and in both cabinet and caucus, but there must be more specific statistics and details, and I’ll be pleased to follow up on that with you in writing.
Senator Dupuis: Thank you. This is a really crucial issue regarding both women’s engagement in politics and the way they face accusations and attacks of all kinds that are clearly greater than those their male colleagues encounter. Thank you.
Mr. LeBlanc: You’re absolutely right, senator. In my case, we had more informal discussions with colleagues in the House of Commons from all political parties. . . This isn’t a partisan issue; it’s an unfortunate situation that affects all parliamentarians, especially and predominantly women and other, racialized persons. So I’ll make a special effort to send you the data we have. It will be a pleasure to do so.
Senator Dupuis: Thank you.
Senator Simons: Thank you very much, minister. I am not a usual member of this committee. I usually serve on the Standing Senate Committee on Transport and Communications, where we have been thinking a lot recently about the regulation of public speech. I’m not a lawyer or a judge, but I did spend 30 years as a journalist, and I have probably more acquaintance than I’d like with the ins and outs of defamation law.
I am perplexed, from a free speech perspective, about how exactly one applies this legislation. If we are honest with ourselves, we know that we will not be laying criminal charges against a troll farm in a foreign country. The people who are most likely to be prosecuted will be Canadians.
I wonder how we decide when someone knows that something is false as opposed to people who might be spreading what appears to others to be malicious information, with a good-faith belief that the information is true. How are we to understand what they know and what the legitimacy of their knowledge is? At what point are we re-criminalizing defamation?
I note that dirty tricks and politics are not new. Richard Nixon had a whole squad who engaged in “rat something” — which I shall not say, because I’m a senator and not a bad journalist anymore. But “rat something” is not new. What is new is the way it is weaponized, and the speed with which it travels on social media networks. How do we make sure this legislation is not used as a chill on free political speech?
Mr. LeBlanc: Thank you for the question, senator. It is a very good one. I have reflected on that as well. I don’t have the experience that you have in the public sphere in journalism. I do share your view that political campaigns, in particular, and political speech can be tough. It can sometimes be dirty and unfair. It can be a whole bunch of things. Voters ultimately decide their appetite for these things, and I’ve always had faith that voters judge people harshly for that kind of behaviour. That’s my own personal view; it doesn’t have to be shared by others.
You’re right. There is a point at which the speech — that is true, for example, in other Criminal Code provisions around hate speech. That is exactly the balance that has been difficult. Certainly post-Charter of Rights, it properly should be the very rare occasion.
I’ve wondered that exact question. The best answer I came up with — when thinking about that question and in looking at this legislative issue — is that I would have faith in the Commissioner of Canada Elections and in the Public Prosecution Service of Canada to decide when and how these provisions would properly be used.
You’re right. The idea that a troll farm in Russia or China will be prosecuted because of some speech or information circulated — even massively, as you say, through social media platforms — in a way that perhaps 20, 30 or 40 years ago, when I think of my father’s generation running an election campaign, was a much different feeling than it would be now, that has obvious circumstances that would worry people.
I used to wonder, in my criminal law courses, about the difficulty in proving a conspiracy case. It’s no different. I have friends who are criminal court judges and they talk about how complicated a prosecution is — and ultimately a conviction — of a conspiracy case. There are people serving time in prison for conspiracies, though. Obviously, with the right amount of evidence and the right prosecutorial discretion, those circumstances can be handled. Perhaps Al or Manon has something to add.
There’s no easy answer to that, senator. I’ve reflected on that myself. I’m glad you raised it. Obviously, the last thing the government would want to do is put a chill on free speech, but it does feel different when someone knowingly targets — using platforms that perhaps didn’t exist a generation ago — in a malicious and deliberate way, a political actor, knowing that the particular information is false.
You’re right; prosecuting somebody for what’s in his or her mind is not a simple thing to do. The muscle reflex would be to say, “Of course, I didn’t know that was false.” How an investigator and prosecutor would arrive at that conclusion, much less a court convict somebody, is a complicated path. I certainly acknowledge that.
Mr. Sutherland: Minister, if I might add a few points to your observations.
The senator, as you suggested, asks a very good question. I think it’s reflected in the provision itself. The provision is about facts. Lying about whether a political actor has committed a crime, claims about citizenship, place of birth, educational credentials — those are specific things. The judgment on that part of it is pretty direct.
The minister is absolutely right; it would be up to the Commissioner of Canada Elections to enforce the law. In fact, in the development of this part of the Canada Elections Act, we reflected the advice and recommendations of both the Chief Electoral Officer and the commissioner. That’s why the legislation looks the way it does for that aspect of it. I think it’s been crafted with the very dilemma that the senator identified in the opening of her question.
Senator Gold: I know others may have questions, so I will cede my time. I simply wanted to thank the minister for agreeing to be with us and spending this time on a relatively small part of the bill. Minister LeBlanc, thank you. It’s always a pleasure to have you with us.
The Chair: Minister LeBlanc, I have a question following what Senator Dupuis said. How closely linked is the concern about making false statements during elections to the spread of hatred? I’m sure you’ve had discussions on that. Can you please enlighten us?
Mr. LeBlanc: Thank you, Senator Gold, for your kind comments. It’s always nice you to see those props behind you — the guitars that you borrowed from your neighbours — during cabinet committees with me and now in the Senate. It made me smile to see them there.
Madam Chair, to your question, you’re absolutely right. I have benefited from briefings from our intelligence agencies, as has the cabinet, around, for example, ideologically motivated violent extremists.
We used to think that a lot of this hate speech was coming from foreign entities. Increasingly, there are concerns about domestic actors. If you think of an organization like the Proud Boys, which was recently listed as a terrorist entity by the federal government, there are domestic hate actors who are increasingly using, as your colleague mentioned, powerful social media platforms to propagate xenophobic, racist hate speech. That is a challenge. There are Criminal Code provisions that cover that area, but it’s a challenge when we also have people knowingly spreading false information deliberately that disproportionately affects racialized people, women and Indigenous people in an electoral context.
Our government is deeply concerned about the rise of all of these negative influences, Madam Chair. I don’t pretend that the solution to properly prosecuting and holding accountable those who propagate this unacceptable behaviour is simple. There is a reason why there are few prosecutions for this. Unfortunately, there are increasing and more alarming numbers of examples that we’re seeing across the country.
The Chair: Thank you, minister. I have another question for you. With largely fixed election dates in Canada, but with minority parliaments where elections could come sooner, is this a prohibition that should have a broader period of applicability that is not limited to the election period? In other words, should this prohibition apply outside the election period? Have you considered that?
Mr. LeBlanc: Madam Chair, that is a good question. I wondered that myself.
We were seeking to correct a circumstance involving the Canada Elections Act, which as you properly noted, applies during the election period. There are sections of the Canada Elections Act that apply in a pre-writ period. It’s more difficult, as you properly noted, in a minority government. One never knows when the election might come in a minority Parliament. All of these calculations are harder than they are when in the context of a fixed election date in a Majority Parliament. It is a broader, more complicated question, and the government wouldn’t seek to do anything that would limit the people’s free speech rights, including tough political discourse that is a normal part of public debate in Canada.
The electoral period is a heightened moment where deliberate, false and malicious hate speech can have a disproportionate impact in a 35-day writ period. It’s different than in a two-, three- or four-year electoral cycle. For the moment, we haven’t looked at expanding this. We wanted to clean up what had been a technical decision of a Superior Court. We wanted to, as quickly and directly as possible, mitigate that circumstance inasmuch as it applies to the Canada Elections Act.
The Chair: Minister, if you allow me. I would like to ask Mr. Sutherland a question.
I’m really struggling with false statements, Mr. Sutherland. How can you prove that a person has made or published a false statement that has the intention of affecting the results of an election? Additionally, how can you prove that the person knew that the statement in question was false? I’m sure you’ve thought about this, and I’d really like to hear your opinion.
Mr. Sutherland: The first thing you do is read the legislation carefully and look at the fact base. You’re quite correct. There are a few elements, and one is the impact on the election. That’s why you would look at the context in which it was said, you’d look at the distribution of the statement, and because this does apply during the writ period, you would consider the timing and the scope of it.
On the part that deals with “knowingly,” you would have to, as the commissioner I’m sure would, explore that with the person who made the statement. Did they repeat the statement? Did they continue repeating it when they were presented with factual evidence to the contrary? All those things would be part of it.
You’re speaking to the Commissioner of Canada Elections later today, I believe. The job of enforcement is his, and he will give you a far better answer than I did. I just wanted to scope it in general terms for you.
The Chair: Thank you very much. I want to thank the minister and the officials for joining us today. Minister, I also want to thank you for your very kind words to me.
Long before I became a senator in the trenches, I had the honour to work with your father. We all hope that we’ll have another opportunity to work with you in the future. Thank you very much for coming here.
Senators, may I please ask that you stay a minute after the minister has left? Thank you, minister.
Mr. LeBlanc: Thank you, Madam Chair and senators, on behalf of Allen Sutherland and Manon Paquet. I will come back to you and your colleagues with precise information on a couple of specific topics. I will get to work on that.
I hope when we are in a position where we can meet in person again that I will have the chance to see you in person. I have many friends who serve in your chamber, Madam Chair, and it’s a privilege to have this opportunity. Thank you again.
The Chair: Thank you, minister.
Senators, as you know, we will be reconvening at 4 p.m. Eastern time, or 1 p.m. Pacific time.
Senators, the analysts sent you copies of past reports. I ask you to reflect on how we should instruct the analysts on what kind of report we want them to prepare. At the end of the day, if we have a few minutes, we would appreciate getting your opinions. Thank you for all your work.
Welcome back, senators. We are now on our third panel for this study and continuing our pre-study on sections 26, 27 and 37, which are part of Bill C-30. I would like to again introduce the members of the committee: Deputy Chair Senator Batters, Deputy Chair Senator Campbell, Senator Boisvenu, Senator Boniface, Senator Carignan, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Pate, Senator Simons and Senator Tannas. Also participating with us today is Senator Moncion, sponsor of the bill.
I remind senators that you will have three minutes to ask your questions. On this panel we are happy to welcome Marc Giroux, Commissioner for Federal Judicial Affairs. Mr. Giroux will speak to us about sections 26 and 27. Senators, limit your questions to those two sections. Mr. Giroux, you now have the floor.
Marc A. Giroux, Commissioner, Office of Office of the Commissioner for Federal Judicial Affairs: Thank you, Madam Chair. Thank you for the invitation to appear before you today.
I’ve appeared before some of you in the past, and it's a pleasure to be here again virtually.
I know that you heard from Minister Lametti earlier today, and I watched his testimony as well. My own preliminary remarks will be brief. For those of you who may not be so familiar with the Office of the Commissioner for Federal Judicial Affairs, I can tell you that my office is created by the Judges Act, our mission is to safeguard judicial independence and I’m the delegate of the minister to administer Part 1 of the act.
The commissioner performs other duties that the minister may choose to assign to him under the act for the proper administration of justice. They include administering the Supreme Court of Canada judicial appointment process, the appointment process for the superior courts across the country and language training for judges, as well as coordinating international judicial cooperation activities and publishing the reports of the federal courts.
The commissioner also provides the necessary staff to the Canadian Judicial Council and support for its departmental needs. The commissioner’s office is also independent of the Department of Justice.
For the purposes of your study of Bill C-30, you will know that the commissioner administers judicial annuities for pensions. Essentially, a judge shall receive a full annuity — that is an annuity equal to two thirds of their last salary — upon meeting certain criteria in the act. The most common occurrence is a judge who has been in the position for at least 15 years and meets the “Rule of 80.” By that, I mean that the judge’s number of years on the bench plus their age equals at least 80. In such an occurrence or in the case of a judge meeting other criteria set in section 42 of the act, and to which I can speak to later if you wish, my office will pay that judge a full annuity.
As well, a judge may receive a reduced pension or a pro-rated annuity under section 43.1 of the act if he or she is at least 55 years of age and has 10 years on the bench. A formula for calculating the reduced pension is found in section 43.1 of the act. I will not get into it. Suffice it to say that my office will usually consult with an actuary from OSFI, the Office of the Superintendent of Financial Institutions, to calculate the exact amount.
As you know, the Canadian Judicial Council, which is comprised of all chief justices across Canada, is responsible for investigating complaints against judges. It may, at the end of its conduct process, recommend to the minister that the judge be removed from office. Under the amendments provided for in Bill C-30, the time for calculating a judge’s pension would be frozen or would stop in the event a judge is the subject of a recommendation of the Canadian Judicial Council to have him or her removed from office.
On that point, I want to repeat what you’ve already heard, that the amendments are fully supported by the judiciary, the Canadian Judicial Council in particular, which has stated its view on the matter on more than one occasion, as well as the Canadian Superior Courts Judges Association, which has made that point before the Judicial Compensation and Benefits Commission.
In addition, other amendments under Bill C-30 would create new judicial positions, in particular at the Federal Court of Appeal, the Ontario Superior Court, the British Columbia Supreme Court, the Supreme Court of Newfoundland and Labrador, the Court of Queen’s Bench and the Tax Court of Canada.
My office administers the judicial vacancies list in addition to the appointment process; we therefore take note of these new positions. In addition, our engagement in this area is limited to the duties we normally perform under Part 1 of the act.
Madam Chair, that completes my preliminary remarks. I will be pleased to answer your questions.
The Chair: Thank you very much, Mr. Giroux.
Senator Batters: Mr. Giroux, you were just indicating that your office is responsible for administering the list of judicial vacancies across Canada, which have fluctuated over the last number of years between about 40 and 60, and with this particular part of the budget implementation act, there is purported to be 13 new Superior Court judges added across the country. We have had a couple of occasions in the last three or four years where we have had similar provisions of budget implementation acts where the Minister of Justice has asked to have a substantial component of judges added under those particular budget implementation acts. There is usually a notation every so often in your listings about how many of those positions have been created as the result of new legislation.
So what I’m wondering is for the most recent couple of times that the Minister of Justice has added components of Superior Court judges in Canada, how many of those positions remain vacant right now?
Mr. Giroux: Thank you, senator, for your question. I understand the nature of the question. My office calculates or takes note of all vacancies across Canada, not necessarily by the number of newly created positions. It takes note of any position that is not filled within a court and reports them on a monthly basis. So it is a little difficult for me to tell you under, for example, the last iteration of new positions created, which number of those have been filled.
It may be that some have also been filled and then become vacant again. So it’s a little difficult for me to state that. As I just mentioned, we do provide a number on a monthly basis, and as you will have been advised already, that number of judicial vacancies is currently 36.
Senator Batters: Could you tell us what the last couple of budget implementation acts have provided as far as — I seem to recall a couple of times in recent years where there have been a number of judges added as part of that. I’m not sure if you would be able to determine whether any of those positions remain vacant, but if you could check with your office and see if that’s information you could provide us, that would be helpful.
Mr. Giroux: I would be pleased to look into it and find out what I can.
Senator Batters: Do you have the amount of the last couple of budget implementation acts where a number of judges were added? How many judges were added in those particular time frames? Do you recall that?
Mr. Giroux: Again, it may be difficult for me to answer and the reason for that is that obviously some positions are created by the federal government. Sometimes within the provinces or within the provincial courts’ own judicature acts, which are enacted by the provinces, the positions have to be at least equal or higher than the number of positions created by the federal government. In other words, what I’m saying is that there is a dual responsibility for ensuring there are a sufficient number of positions and, therefore, sometimes when positions are created by the federal government, it may be that the provincial legislation has not been enacted for such, and so sometimes we do need to wait. My office needs to ensure that the provincial legislation is, indeed, in effect, so as to be able to fill the vacancy created by the newly created federal positions, if I can express it that way.
Senator Batters: It was probably the last couple of times that you appeared in front of our committee where we were dealing with these types of issues where we had a number of judges purported to be positions created as part of a budget implementation act, and I wonder if you would be able to look back at that and let our committee know. Thank you.
Mr. Giroux: Thank you.
Senator Dalphond: Thank you for being here today, commissioner. Further to Senator Batters’ questions, I understand that, if 5 more positions are created at a court of 50 Judges and there are 3 vacancies when those positions are created, your statistics will show 8 vacancies in the following month, and the vacancies will subsequently rise or fall depending on appointments and departures.
Mr. Giroux: Yes, that’s correct, senator. The number of new positions created will appear on our website, which will take into account vacancies filled during that same period.
Senator Dalphond: With regard to those vacancies, can you say — because these are overall figures — whether the current trend in vacancy numbers over the past 10 years, for example, is up or whether, on the contrary, the average number of vacancies is down? I understand from what the minister said earlier today that there are currently 36 vacant positions. Is that an abnormal number or lower than the average for the past 10 years?
Mr. Giroux: It’s hard for me to give you a definite answer to your question because, as I said, we publish the vacancies list every month, and it varies considerably from month to month in a given year. However, in my experience, and as Senator Batters mentioned, vacancies have varied between 40 and 50, perhaps as many as 60 at certain times. Consequently, the current 36 vacant positions are definitely fewer than what we’ve seen in recent years.
I’d also add that, since the number of positions has increased as a result of similar bills, the annual number of appointments has generally risen sharply over that 10-year period.
Senator Boniface: Thank you very much for joining us and for answering our questions. As a follow-up to the line of questions from Senators Batters and Dalphond, what is the usual time frame between the budget bill going through and the actual appointment process? Do you have any standards in place or even an average you could give me that might be helpful?
Mr. Giroux: Thank you, senator. We would not be setting any standards. That would be for the minister and his office to do. Again, the timeline may well vary from one court to another or from one set of vacancies, if I can put it that way, to another. The reason being, on the one hand, as I expressed earlier, it may be that in some cases the equivalent provincial legislation has not been enacted yet, and in other cases it may be that there are consultations with the chief justice of the relevant court, who may be pressing in certain cases for the appointments to be made, which is usually the case, and in other cases may have reasons to not be pressing as much.
It’s difficult for me to answer in any precise manner how long it may take for vacancies to be filled after the number of positions has been created.
Senator Dupuis: Mr. Giroux, thank you for being with us this afternoon. My question concerns filled vacancies.
I’m trying to get a clearer idea of the criteria — and I understand that the government sets them, not you — whereby a certain number of additional judges are allocated to one province relative to another. Three can go to one province and four to another, assistant chief justice or no assistant chief justice. You administer appointments once they are made. For the past 5 or 10 years, what data do you have that is accessible and could help improve transparency with regard to the way those decisions are made?
Mr. Giroux: As the minister said earlier, a team of officials from the Department of Justice receives requests for additional positions from the various chief justices. That team has previously established a way or method for determining whether a court should get the positions it wishes.
I can tell you that, based on my experience, that method did not exist several years ago, in the early 2000s. So it was harder to determine objectively what a court’s needs were.
That being said, as you noted, I’m not involved in those discussions. All I can tell you is that chief justices who want more judges on their bench must provide a lot of information in making their case to the minister through the minister’s officials.
Senator Dupuis: So that means you have no information you can provide us to help give us a clearer idea? We both heard the response from the Department of Justice officials a little earlier. They explained that this was all decided in house based on a method that we’re to believe is established and clear, and I have no doubt that’s true.
However, the fact remains that, from a transparency standpoint, the minister confirmed that it’s the chief justices who determine their needs and then pressure the government to meet them. In that sense, I find that problematic.
So you have no information that would help us form a clear idea?
Mr. Giroux: No. We’re essentially informed, through a similar bill, of the desired number of positions in the act, and once that information is received, we ensure it’s applied and meet the needs for the newly appointed judges and the need for the appointment of those judges through the advisory committee process.
Senator Dupuis: Thank you.
The Chair: Before we proceed, Mark, I’m having problems with my mic. If I am not able to proceed, Senator Batters can you please continue? I’m going to try.
Senator Pate: Thank you, Madam Chair. You scared me for a minute; I thought you were going to ask me to chair.
Thank you very much to the witnesses for appearing. As you’re probably aware, in 2017 this committee tabled its report entitled Delaying Justice is Denying Justice. It made 50 recommendations to address the crisis in Canada’s justice system regarding delays in criminal proceedings. In your view, how will these amendments impact delays in Canada’s courts, and do you have any other relevant recommendations or comments about what more can be done to address this issue?
Mr. Giroux: Well, senator, I would dare say that in light of the study that you conducted, you’re probably more aware of the needs in this regard. In my position, I hear from chief justices who want, obviously, new positions or new appointments to be made so that they can deal with the pressures that they are under. I would hope that these new positions would certainly help in achieving the goal that is being set out and that you mentioned from your report. I do not have more information to offer in this regard, unfortunately.
Senator Pate: Thank you. That’s fine, Madam Chair.
Senator Simons: Thank you, Mr. Giroux. I asked a question of the minister when he was here earlier about my home province of Alberta, which is receiving no new judges. I understood from the officials, then, that no one from Alberta had applied. I’m trying to understand how this works. Is there any role played by the provincial government in this, or is this strictly from the chief justice? Is there a reason that I’m not understanding why Alberta would not have asked for judges, given that it has been a constant refrain here for years that we simply don’t have enough, either on the Court of Queen’s Bench or the Court of Appeal?
Mr. Giroux: What I could offer, senator, is that prior to this bill, the previous bill that created new positions did so for the Province of Alberta, if I remember correctly. I remember that the Chief Justice of the Court of Queen’s Bench was pressing in that regard at that time. I could not say what the reason is for not making the same request this time or whether it was made or not. Knowing Chief Justice Moreau, I certainly know she would be pressing for more judges if she saw the need, or if she saw that it could actually be granted given that the court did receive new positions in a previous bill.
Senator Simons: To clarify, is there any role for the provincial government, or is this something that happens strictly between chief justices and the federal government? Does the province have a role as intervenor, as lobbyist or as applicant?
Mr. Giroux: This is really a question for the officials that appeared earlier as to how they go about that and make the analysis required to determine the correct number of judges. From my understanding it starts with the chief justice, but I couldn’t tell you whether the provincial government plays a larger role.
Senator Simons: Thank you very much.
Senator Cotter: Marc, nice to see you again. I have two questions for you that are more basic, I think. The first is that I hear anecdotally that — during this period of the COVID pandemic and the challenges and uncertainty we’re facing — the courts have been less busy than usual. I’m interested in knowing whether — at least over this last period of time, despite a lack of increase in this complement — your sense is that justice is not fully being achieved, but at least we have not faced a particularly unique stress in the last 12 or 15 months.
The second question relates to supernumerary judges. I think I would be correct in understanding that the numbers that you and the minister are speaking to, with respect to numbers in the superior courts and the expansion of numbers, relates to full-time positions and that supernumerary judges are not taken into account, despite the fact that they tend to continue to serve on a halftime basis for periods of time. My question really is about patterns. Are we seeing more supernumerary judges and therefore, in a curious way, a slight increase in the complement, or is that pattern staying the same, or are judges choosing supernumerary less often? I don’t know that you have specific numbers, but I would be interested in knowing your perspective on that.
Mr. Giroux: Thank you, senator. I will start with your second question. For both questions, I may have to provide you with an anecdotal response. From experience with regard to supernumerary judges, my offer to you on this question is that I think judges are either retiring earlier or certainly making use of the supernumerary function once they are eligible, somewhat more than in the past. I don’t know that there is a particular reason for that. I would have to, obviously, get more scientific information, but that is my understanding. There seems to be a larger turnover if I can put it that way — more vacancies created on a regular basis, more judges wanting to become supernumerary. Maybe it’s a sign of the times that people don’t necessarily want to sit as judges until the age of 75 if they can become supernumerary or retire earlier. On that question, that’s what I would offer you from an anecdotal standpoint.
On the other front, as to the pandemic and its pressure on the courts, I obviously hear from judges on that front as well. I would say that it’s unclear as to — my thinking would be that there has been more pressure on the courts. It depends on the court in question. However, I would say some courts are certainly seeing a lot of pressure. As you probably know, an action committee on this was set up and is chaired by Chief Justice Wagner and Minister Lametti to address issues faced by the courts in light of the pandemic, and to ensure that the courts keep running, and keep running well, as well as doing so in a uniform manner from one court to another. That has been quite helpful in addressing some of the problems raised by judges and chief justices.
As to the pressure itself, I would tell you that some chief justices are certainly telling me that there is a lot of pressure on their courts to try to administer justice in a way that is not different because of the pandemic — but obviously it is. The pressure of doing so in a new manner is not so easy, but I think the courts are generally adapting well to those pressures.
Senator Cotter: Thank you.
Senator Dalphond: There are a lot of points to cover, starting with judges’ departure dates; some think they’re predictable.
Perhaps you can expand on the answer you gave earlier. What is predictable is the mandatory retirement age of 75. Are judges currently retiring early, or do they choose to become supernumerary, which I understand creates a vacancy on the bench? Is it easy to predict judges’ departure dates?
Mr. Giroux: It isn’t always easy to predict departure dates. The mandatory retirement age is 75. For a judge who has become supernumerary, the mandatory retirement age is set at 10 years after he or she becomes supernumerary. It’s relatively easy in that case.
However, that somewhat belies the facts. Many judges decide to leave earlier or to become supernumerary once they’ve met the appropriate criteria. I think that, within the judiciary, it will be said that judges should or try to give six months’ notice of departure either as a supernumerary judge or on retirement. That’s not always the case.
I think many judges try to do that for the sake of their court and so a formal appointment can be made, but it’s not always that easy. Based on the mandatory requirement age, which is 75, it’s understood that we should know that they’re leaving then because that’s the latest date on which they can leave their position. However, they may nevertheless leave earlier, for example, if they meet the rule of 80 criteria to become supernumerary, which creates a vacancy, or to retire.
Senator Dalphond: Senator Simons asked the question about that. A distinction has to be drawn between the needs of the federal courts, such as the Tax Court of Canada, the Federal Court or the Federal Court of Appeal, and the needs of the provincial courts or provincial superior courts, such as the Court of Queen’s Bench of Alberta. In those instances, needs must first be assessed by the province that creates positions and then by the federal government, which must add the expected number of positions under its act. If my understanding is correct, the evaluation is done by the province based on the applicable Courts of Justice Act.
Mr. Giroux: I would say quite candidly that it’s easy for a province to create new positions because judges’ salaries are paid by the federal government. That’s why the federal government needs to make sure that the new positions are justified, because at the end of the line, that’s who’s paying the judges’ salaries.
The province certainly has some administrative responsibilities, such as ensuring that there are facilities and staff for the judge. When all is said and done, a province can create as many positions as it wants, but it’s up to the federal government to determine the specific needs of the court and the salary to be paid to new judges.
As I said earlier, in some instances, provinces will not have passed legislation yet when the new positions created by the federal government have been opened and then, we — the minister’s office and mine — need to make sure that no appointments are made before the position has been created, not only by the federal government, but also by the provincial government.
Senator Dalphond: Thank you.
Senator Batters: First of all, Senator Simons, I used to be the Chief of Staff to the Minister of Justice of Saskatchewan for four and a half years, and I can tell you that there is substantial involvement between the provincial Minister of Justice and the federal Minister of Justice on things like the number of judges that are required, because the province is responsible for the administration of justice.
Mr. Giroux, I’m wondering if your office also keeps track of whether there are vacancies on the judicial advisory committees, which are involved in recommending individuals. If your office keeps track of that, what is the current status of them? We have had points in the past few years that there have many JACs that had substantial numbers of vacancies. What is the status of that right now, and is that something that’s slowing down the appointment of judges now? Thank you.
Mr. Giroux: Thank you, senator. That is a good question. Yes, indeed we do keep track of the judicial advisory committees, because we work closely with them. One member of my staff is responsible to attend each and every judicial advisory committee meeting across the country. There are 50 to 60 of those every year. They’re quite busy in taking a close look at any applicant for judicial appointment, so we are very closely tied with them.
The JACs, as we commonly call them, are appointed for two years, and right now, in three provinces, some JACs are coming to an end. That is in Ontario, Quebec and British Columbia. I understand that we are awaiting the appointments of these JACs, which I understand should be done soon. Over the years, I can tell you that sitting in this chair, it’s always important that these JACs be appointed in time. I know that ministers are very conscious of that and that efforts are being made to do that.
What has changed over the years is that, in the past, all JACs would expire at a certain time, which would mean that all JACs across the country would expire at the same time. Now they are staggered, which does help in ensuring that there is a consistent renewal of judicial advisory committee members and that, throughout the country, there are always some JACs operating. If I may add, these people do a great and important job in assessing the qualifications of the candidates who apply.
Senator Batters: Thank you. That’s important to know, because those are three big provinces with lots of judges. Hopefully the minister is taking note of that, especially if there is an election upcoming. Thank you.
Mr. Giroux: Thank you. I understand they will be appointed soon.
The Chair: If I may follow up with that, commissioner. The makeup of JACs — I would imagine it is laypeople. Some are appointed by the federal government and some by the provincial government, and some by the Law Society. Is that how it works? How does it work?
Mr. Giroux: For each and every JAC there are seven members. One is selected by the chief justice of that relevant province, another member is selected by the Attorney General of that province, another by the Law Society and another by the Canadian Bar Association, which makes four. Then there are three members that are appointed or nominated by the Minister of Justice, and usually within those three people there is at least one layperson who has no background and is not a lawyer or a former judge. So overall, seven members sit on these JACs.
The Chair: For a number of years, since this government has come to power, there have been many vacancies. Every time you talk to a chief justice in any province, they will say, “Well, make all these laws, but give us the judges. We can’t do everything you guys expect us to do.” I’m not talking much like a lawyer. The excuse I’ve heard is because it’s changing the process. So what is the process that has changed? Members want to know what has changed and why is it taking so long. Now we have 36 vacancies. Why is it taking so long?
Mr. Giroux: I think there can be fluctuations over time as to why it may take longer to make appointments. I think the minister referred to elections, and that is certainly one period in which there are no appointments being made. When a new government is appointed, especially if it’s a new party that is holding power, it may take a little longer to start up the process.
At the current time, with the current number of vacancies being at 36, things are moving quite well, for the most part. Obviously, there are some chief justices who will not always have their needs met. It depends on which of these you speak to, but overall things are going relatively well.
Since 2016, a few changes were brought in, including a new questionnaire for applicants, an emphasis on appointing new judges who reflect the diversity of Canada, and more questions being asked of judicial applicants.
Once that process got under way, there was a bit of a hump to get over, if I can express it that way, but things have moved since then in terms of appointments being made on a regular basis. With the new process, there is obviously more diversity among the appointed judges and also more diversity within the judicial advisory committees.
The Chair: Thank you so much for that explanation. That’s very helpful. But for us sitting here, and I’m sure for people who are listening, they’re saying there are 36 vacancies across the country, and some more than others. I get that. But why do we need more judges when we’re not even able to fill the 36? Is it because of illness or retirement? You already said that some judges are taking sort of early retirement by becoming supernumerary, but what is it? Because I don’t ever remember a chief justice saying to me, “Fill my vacancies,” as I hear these days from many chief justices.
Mr. Giroux: Yes, I think you’re right. I certainly understand why they would do that. They want more judges. They want to alleviate pressures on their courts and on their own judges as well. It’s certainly a topic that is very common and that has been spoken to throughout my years in this office. There’s always a need for appointments to be made more quickly by chief justices, and the government tries its best to fulfill these needs as quickly as possible.
From experience, I will say that some chief justices are maybe very pleased at one time and at another time may say, “Well, now it’s been awhile.” I don’t know that I can offer more information to address your question. As I said earlier, I do believe — and this may be a good point to look into — that there’s a turnover that is more regular, at the very least. Anecdotally, there’s a greater turnover and therefore a greater turnover of vacancies as well.
The Chair: May I ask you this: Is it because there is a sudden decision made by a judge? Anywhere else, if someone was going to retire, you look for the next person to take over. It looks like once that judge retires — it seems that way. I may be absolutely wrong. For a layperson or for us, how can you have 36 vacancies? I don’t understand that.
Mr. Giroux: I don’t know that it’s for me to say, senator. You mentioned that when a judge retires, especially amongst the smaller courts, there may be a particular need for the vacancy to be filled because of that judge retiring. If it’s a small court and a judge has a specific area of expertise — be it family law, criminal law or what have you — and that judge suddenly leaves, there may be highly qualified candidates in the pool from which the minister may appoint, but that particular need may not exist within that pool. That may be one explanation. Otherwise, I think the minister would be better equipped to answer.
The Chair: Yes, that’s a fair comment. Commissioner Giroux, we want to thank you. You always make yourself available to our committee and you’re always straightforward. We learn a lot from you. We thank you for always being so patient with us and we look forward to seeing you next time. Thank you very much.
Senators, I’m now going to ask Julian to explain to us what direction he is looking for in terms of our Bill C-30 report.
Julian Walker, Analyst, Library of Parliament, Senate of Canada: Good afternoon, senators. As the chair mentioned, you are being invited to provide your thoughts for observations to be attached when the chair reports back to the chamber on your study of these provisions of the budget implementation act. We have the three sections, as you know. I’m not going to go into details there.
You were sent examples of past observations that were made in reporting on previous studies. Those provide a sense of how things have been done in the past. Of course, it’s up to the committee to decide how they would like to approach this current bill. If you have ideas that you would like included, as your analysts, Michaela and I would be happy to draft something for you based on what you wish. If you have things that you want to hear, then what we need to hear today are the main themes you would like to touch on, especially if there is a particular comment or observation you want to make. As you can see, in the past, sometimes these have been directly related to what was in the bill and sometimes they’ve been more related to the conversations that have been had around those amendments. But at this stage we’re looking for what you —
The Chair: Julian, I’m sorry. I erred.
Mr. Palmer, can we go in camera, please?
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Senators, for the final panel today, we will be speaking on Division 37 regarding elections. We are happy to welcome Stéphane Perrault, Chief Electoral Officer, Elections Canada, who is no newcomer to our committee. Thank you for coming again, Mr. Perrault.
Yves Côté, Commissioner of Canada Elections, Office of the Commissioner of Canada Elections. You are also known to our committee and you know our committee as well. Also Joanna Baron, Executive Director, Canadian Constitution Foundation.
Panellists, the committee consists of Deputy Chair Senator Batters, Deputy Chair Senator Campbell, Senator Boniface, Senator Boisvenu, Senator Carignan, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Pate, Senator Simons, and Senator Tannas.
You are now welcome to start your presentations.
Stéphane Perrault, Chief Electoral Officer, Elections Canada: Thank you for the opportunity to appear before the committee as it studies the proposed amendments to the Canada Elections Act contained in Bill C-30. I will be very brief in my remarks.
The Elections Modernization Act, which received Royal Assent in December 2018, modified section 91 of the Canada Elections Act to prohibit a person or entity from making or publishing, during the election period, specific types of false statements with the intention of affecting election results.
The benefit of section 91, as enacted in the Elections Modernization Act, is that the list of prohibited statements is now clear and specific, ensuring that the restrictions on speech are narrowly crafted. However, section 91 no longer includes express language regarding the knowledge element of the offence, as it relates to the falsehood of the statements.
The committee debates in the other place showed there was agreement regarding the need to prove that the person or entity making the statement had knowledge that it was false. Nevertheless, it was the view of the government officials involved in the drafting of the new provision that this language in section 91 was redundant in light of the fact that the related offences in section 46 were ones that required intent.
As you know, in February, the Ontario Superior Court struck down section 91 because related offences did not include the word “knowingly” and constituted unjustified infringement on freedom of expression. Bill C-30 proposes remedying the situation by adding the word “knowingly” to the wording of the offences related to section 91.
I would therefore like to point out that the amendments to the Canada Elections Act have been included on only a few, if any, occasions in a budget implementation bill. In the case under consideration, however, the proposed amendment does not constitute a change in a government legislative policy but rather a correction of a drafting error that led to the striking down of the provision by the Ontario Superior Court. Consequently, I support the amendment made in Bill C-30. Thank you.
Yves Côté, Commissioner of Canada Elections, Office of the Commissioner of Canada Elections: I’d like to begin by thanking you for those warm words of welcome.
I’m very pleased to be appearing before you today to attend this committee meeting as it studies the provisions of Bill C-30 with respect to the application of section 91 of the Canada Elections Act.
In 2018, as part of the study of Bill C-76, my office said that a provision like section 91 would strike a proper balance, on the one hand, by allowing normal debate and the usual political gamesmanship only to be expected during an election, and on the other hand, by prohibiting deliberate falsehoods that could seriously and unjustly harm a candidate’s or a party’s success in an election.
I would note that at that time, while there was some debate surrounding the scope of section 91, there was nothing in parliamentary deliberations that suggested that the amendments were intended to capture statements that were made without knowledge that they were false. For this reason, following the adoption of Bill C-76, we announced our intention to continue to enforce section 91 as though the requirement to establish knowledge of the false nature of the statement was part of the offence.
Although an argument could be made that a lower threshold might be used to prove mens rea — that would be, for example, mere recklessness — my position was that the best interpretation of the provision and the one that we applied was that there was still a need to prove knowledge.
The decision of the Ontario Superior Court of Justice on section 91 and the Government of Canada’s subsequent decision not to appeal it clearly indicate that the provision could only be applied in Ontario during a federal election held prior to the adoption of the proposed change in Bill C-30.
I wish to clarify that in keeping with the usual practice, when a provision is declared invalid by courts in one province, we apply such a judgment across the country. It would definitely not be in the public interest for different rules to apply in different provinces for the same federal general election. Of course, this means that, should a general election be held before a problem identified by the court with respect to section 91 is addressed, we would not enforce the provision anywhere in the country.
The current absence of rules prohibiting false statements about candidates worries many people. In view of this concern, and the legislative void created by the recent decision, I support the amendment of section 486 before you today, which clearly specifies that in order to prove that an offence was committed knowingly under section 91, the prosecution must prove that the accused knew the statement made was false.
Madam Chair, thank you for your attention. I’ll be happy to answer any questions.
Joanna Baron, Executive Director, Canadian Constitution Foundation: Thank you very much for the invitation to present. The Canadian Constitution Foundation applauds the decision of the Ontario Superior Court, though we remain extremely concerned about the overall constitutionality of section 91(1) in spite of the word “knowingly” being reinserted into the proposed legislation. Section 2(b) of the Charter guarantees the freedom of thought, belief, opinion and expression, including freedom of the press. Among other things, this protection promotes participation in social and political decision making. Section 91 of the Canada Elections Act, or CEA, undermines this freedom guaranteed in section 2(b) in the Charter. It targets expressive activity. While the state may deem that activity’s expressive content to be false, section 2(b) is content neutral, and it protects the expression of not only truths but falsehoods, as expressed.
Canadians should not have to fear prosecution for communicating information that the state deems to be false or for sharing ideas that politicians deem unworthy of dissemination, and yet section 91 limits political expression when it matters most — during an election campaign. The provision limits the freedoms guaranteed in section 2(b), particularly those of belief, opinion and expression. It cannot be justified under section 1 of the Charter.
When the CEA was amended in December 2018, it made two changes to the previous version, in addition to removing the explicit knowledge requirement. First, it added more individuals about whom false statements must not be made. It added not only a candidate or a prospective candidate, as previously, but also a leader of a political party or public figure associated with a political party. Second, it altered the types of false statements captured under section 91 to include a false statement that a candidate, prospective candidate, leader of a political party or public figure has committed an offence under an act of Parliament or has been charged with or is under investigation for such an offence. Second, it caught a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group or association of a candidate or prospective candidate or public figure, et cetera.
The proposed amendment still doesn’t deal with the substantive, overly broad provision and its vagueness. It is unclear, for example, who exactly is a public figure associated with a political party. Under section 91(1)(b)(2), furthermore, deliberate falsehoods by politicians about themselves would appear to be included. For example, former Conservative Party leader Andrew Scheer stating he was a qualified insurance broker when apparently he wasn’t.
Section 2(b) of the Charter requires that the state generally refrain from intervening in the search for truth. That is an endeavour that must be left to society itself. Democracy can be messy, but the state cannot lawfully seek to protect democracy against itself. Political speech during an election period may be overstated, crude, satirical or sarcastic, yet an individual may find it necessary to use hyperbole or satire, sometimes in an offensive way, to make a point effectively or to fully express their thoughts or beliefs. The Charter assures them this right to make this judgment for themselves. The legislation in section 91 makes no exception for parody or satire. This distinguishes section 91(1) from 480.1, for example, the impersonation offence, and section 481(1), the misleading publications offence, both of which allow for a parody or satire exception.
The vagueness and ambiguity of section 91 leaves individuals and organizations uncertain about what the provision does and does not prohibit. Consequently, they may err on the side of caution and soft pedal their expression to avoid the possibility of running afoul of the law. This can only come at the expense of the free and uninhibited exchange of information, beliefs and opinions that are essential to a functioning democracy and, in particular, to an open and effective electoral process.
Finally, I would remind the committee that under sections 486(4) and 500(5) of the Canada Elections Act, any person or entity that contravenes section 91(1) is guilty of an offence and the available punishments are severe. They may be sentenced to pay fines of up to $50,000, up to five years of imprisonment or both, and there is no limitation period for prosecuting this offence. Thank you very much for your time. I look forward to your questions.
The Chair: Thank you very much for your presentation. Thank you very much to all the panellists.
Senator Batters: Thank you very much. My first question is to Mr. Côté. As elections commissioner, you indicated in your opening statement that with this particular provision that we’re discussing today, over the last couple of years since the passage of Bill C-76, you assumed that there was still a need to prove knowledge with respect to that particular offence. I’m wondering if that decision about the assumption that knowledge needed to be present and that, even though “knowingly” had been defeated twice when Conservative MPs brought that amendment forward — so “knowingly” was not in the act but you assumed there was still the need to prove knowledge — did that decision affect any of your election prosecutions since the passage of Bill C-76 in 2018?
Mr. Côté: Senator, are you talking about prosecutions under this particular provision, or are you speaking more generally?
Senator Batters: I’m talking about your assumption that “knowingly” was properly the subject of that particular provision, so you tell me. I’m wondering if it impacted any of the work you were doing when dealing with potential Elections Act offences. Did the decision to include, as an assumption, the word “knowingly” have an impact on any of the work that you were doing?
Mr. Côté: When the provision was amended, I made it clear to all of my investigators and the people doing the communications in our office that this provision should be applied in circumstances where knowledge of the falsity of the statement could be established against the offender. This is a position that we have taken in letters that we have sent to complainants under section 91. This is also a statement that our communications people have made to the press. As a matter of fact, I found a couple of articles where our spokesperson was quoted as saying exactly what I am saying here.
During the last electoral campaign, we received close to 400 complaints under section 91. Many of the complaints would be with respect to particular incidents. I am in the position to tell you and the committee today that all of the complaints have been resolved except two or three, and in all the cases that have been resolved, there have been no prosecutions started. All the complaints were rejected as not establishing that there had been the commission of an offence under section 91.
I would add en passant that the new administrative monetary penalty system that was enacted under Bill C-76 is not applicable for potential offences under section 91, so the only real way of enforcing it is by way of prosecution before the courts.
Senator Batters: Thank you. My next question is to Mr. Perrault as the Chief Electoral Officer. The minister’s briefing notes on this issue state this measure — the one we are discussing today:
. . . is being included in the budget because there is an urgent need to ensure that this provision is in effect should a general election or by-election be called.
So the federal government considers this particular amendment urgent, but the amendments that you have recommended as the Chief Electoral Officer regarding conducting an election during a pandemic are not being given that same urgent priority by this government.
Mr. Perrault, there is obviously a potential, as you’re highly aware I’m sure, of a general election at any time during a pandemic, and right now as we have a minority government in power, what is your reaction then to the federal government not including any aspects about the pandemic election possibilities, including even potentially something that could be relatively simple that you have proposed about having the three-day election period?
Mr. Perrault: Senator Batters, just a few points. I did not recommend a three-day but a two-day voting period. I’ll come back to that if necessary. I have to say I do look forward to appearing before committees on Bill C-19, which are related to my recommendations.
I would have been surprised by and not supportive of a fundamental change or significant change to the Elections Act by way of a budget implementation bill. The reason I can support this instance is because it is in order to correct a problem with a provision, but not to change legislative policy. It is in my view appropriate that the changes that I recommend go through a normal legislative process and not the extraordinary measure of a budget implementation bill. That said, I do look forward to appearing before committees.
Senator Batters: Yes, it could be some time because I believe it’s just going — did it pass second reading now in the House of Commons? — so it hasn’t yet gone to the House of Commons committee, and it has a long way to go potentially yet. Thank you.
Mr. Perrault: Thank you.
Senator Dalphond: My question is for Mr. Perrault and perhaps Mr. Côté. My understanding is that there is a tradition or an unwritten rule according to which the Elections Act cannot be amended without prior discussion with the political parties and an effort to reach consensus.
Am I to understand that this amendment to the section before us had achieved consensus among the political parties? Might they have agreed to say that it was urgent to take action?
Mr. Perrault: I can’t speak on behalf of the government. However, I can tell you that when I make recommendations to Parliament, I’m accustomed — and so were my predecessors — to consulting the Advisory Committee of Political Parties unless the matters at hand are technical or minor. That’s my usual practice.
I don’t know whether such consultations with the political parties were held.
Senator Dalphond: So, if I’ve understood correctly, there were no consultations with you.
Mr. Perrault: I was not involved in the amendment now being proposed.
Senator Dalphond: Was a suggestion from you or your office made to the government with respect to introducing an amendment following the decision, or was it the government itself that came up with the idea — and now you are saying that you agree with the idea?
Mr. Perrault: It’s the government, I believe the Attorney General, who decided not to appeal the decision, and in light of these facts, I must assume that it’s more or less why the government took the initiative to correct the problem. It was done without any interaction between Minister LeBlanc’s office and me.
Senator Dalphond: All right. I understand that this is also the case for Mr. Côté?
Mr. Côté: Precisely, Senator Dalphond. We were not involved in the decision to introduce the amendment before you today.
Senator Dalphond: Thank you.
Now I have a question for Ms. Baron. Thank you to all the witnesses and thank you, Ms. Baron, for appearing on behalf of the foundation. On section 91, do I understand that you are opposed to any kind of restrictions, or do you think this is too large a net or too broad in scope and should be narrowed down?
Ms. Baron: For the purposes of this discussion, we don’t oppose any restrictions whatsoever, but we think that the balance has not been struck, that there are significant problems with it being overly broad, with a lack of clarity and vagueness. A discussion came up, for example, at the Superior Court hearing, as you may know if you read the decision, because of the issue of the word “knowingly” and the fact that it was removed after being in there. The judge couldn’t get past that, and that was sufficient to determine the legislation unconstitutional.
Another issue came up about the question of whether an individual was being investigated for an offence under an act of Parliament and how that could be quite vague. So if somebody said, “the Prime Minister is a crook” or some other hyperbole like that, it’s not clear that that wouldn’t be caught by the legislation.
So to be clear, we don’t oppose any types of restrictions on political speech, although we are a pro free speech organization, but we think this legislation did not get the balance right.
Senator Dalphond: What will you propose we do now? Because we’re just amending that provision 486 related to that, but what you referred to is more or less the scope of section 91.
Ms. Baron: I think section 91 was declared of no force and unconstitutional, and it should be kept off the books. I certainly don’t think it should be dealt with, bookended to a larger budget bill when it does deal with substantive issues of free expression, as the government is already proposing to bring in new laws that will significantly restrict the scope of online speech. As you know, there is absolutely no evidence in the 2019 federal election, when this broader law was enforced, that it contributed at all to reducing the spread of disinformation and misinformation, and I don’t think that the proper remedy for the problem of fake news is to threaten individual Canadians with fines and jail time.
Senator Dalphond: I concur on that. I understand that what you say is, this amendment attacks the tip of the iceberg, the notion of “knowingly or not,” but there was much more debate about the rest of the iceberg and this is not addressed by this amendment.
Ms. Baron: Correct. Justice Davies is a judicial minimalist and she rightly made a decision on a small point, but there is a much bigger issue here at hand. Thank you.
Senator Dupuis: My question is mainly for Mr. Côté. I don’t know whether Mr. Perrault might be able to add something as well.
In connection with the complaints you received during the last elections, I’d like to know whether you have data about those who were targeted, on the basis of their gender or their belonging to a racialized group. In terms of statistics, what picture have we got?
Mr. Côté: Senator Dupuis, I don’t have all the data in front of me, but based on my recollection of the cases we dealt with — I think you mentioned racialized groups and women?
To my knowledge, the only persons against whom false statements were made, and for which complaints were filed, were men. I believe they were all non-racialized men.
Senator Dupuis: If you should ever happen to have some information on this subject, could you table it before the committee? I understand that you don’t necessarily have it with you today.
Mr. Côté: I’ll look into what we can produce, within the very strict confidentiality rules that apply to our work. I believe we would be able within the next few days to provide the committee clerk, Mr. Palmer, with some information that might be useful to you.
Senator Dupuis: Thank you. We are trying to understand and get a better idea of hate speech and falsehoods as they pertain to groups like women, racialized people and the LGBTQ community.
Do you have any data on this, Mr. Perrault?
Mr. Perrault: When we receive complaints that could even remotely be considered an offence, they are sent to the office of the commissioner, who is authorized to carry out an investigation. The point you are raising is a broader one. There could be some overlap, but we don’t compile data specifically on threatening or hate speech towards candidates or racialized groups.
Senator Dupuis: Falsehoods, of course, can amount to something very close to hate speech.
Mr. Perrault: Absolutely.
Senator Dupuis: Falsehoods can be used for hate speech. Thank you.
Senator Pate: Thank you to the witnesses. Given that we have defamation and libel laws, if an election was called within six months of Division 37 coming into force, would there be a significant risk of compromise due to false statements, if this division did not override the Elections Act by suspending that six-month preparation period? In other words, is this measure absolutely integral to a fair election, in your opinion? I think both witnesses, if we have time.
Mr. Perrault: I’m a bit loath to embark on this. I understand the relevance of your question, but because we are in a budget implementation bill, my view is that the measure should be passed or rejected. I’m loath to embark on a discussion of whether it should be different or broader or narrower. I heard Ms. Baron on this.
I think the provision reflects a judgment that was made by Parliament a couple of years ago, which is that certain, very specific, targeted conduct was a harm to the election. In my view, that judgment should stand, subject to the provision being remedied from its defect.
Ms. Baron: Our view is that a lot of the mischief this legislation is looking to counter would be remedied by the already available law of defamation, which also has the defences, as the senator would likely know, of fair comment or of truth, which section 91(1) does not have — not to mention the issue with satire and parody, which is a real issue that I mentioned earlier.
Senator Pate: Thank you very much.
Senator Cotter: Thank you very much, witnesses. I wasn’t actually intending to ask a question, but I misunderstood perhaps what you said in your last response, Ms. Baron. If I understood correctly, you said that truth is not a defence to a section 91 charge. Did I hear you correctly on that?
Ms. Baron: Yes. More properly, it’s fair comment. Fair comment is a defence to defamation. Truth, presumably, would be a defence if the issue is making false statements. But fair comment — in the sense of making a statement that is an exaggeration or hyperbole — is not an excuse under section 91, but it is under the common law and Criminal Code provision of defamation.
Senator Simons: Ms. Baron, thank you so much for articulating so clearly some of my deep concerns about this legislation. I speak as someone who spent 30 years as a working journalist and is deeply concerned about the impact of this legislation on freedom of the press.
I’m even more concerned, having heard that of the 400 cases that were investigated, none was found to be sufficiently substantive to be worthy of an investigation.
I wonder if the witnesses could speak to the issue of the chill that comes from that kind of mischief-making. If 400 people filed criminal complaints and not one of them led to a criminal conviction, have we created a law that has the potential for abuse, not just against people who may have made false statements and have their freedom of speech impinged, but people who didn’t make false statements and will be chilled by the prospect of a criminal investigation of something they say or publish?
Mr. Côté: Senator, perhaps to set something straight, we received those approximately 400 complaints. Of course, we looked into every single one of them. There were groups, as I recall, perhaps of 100, 120, on the same kind of allegedly false statement. I think we have something like six or seven groupings of incidents — for example, let’s say somebody said something that was perceived by some people as being a false statement about a leader of a party. We might get 50, 60 people filing a complaint.
Senator Simons: I presume some of them are exactly the same, word for word.
Mr. Côté: Exactly. They will say, “The Globe and Mail reported this or La Presse reported that. We think this is a false statement, so please investigate.” That is why, although the numbers may appear pretty big, in fact, as I said, they were clustered around six or seven main things.
Senator Simons: But your answer gives me even more concern, because presumably the genesis of this legislation is to prevent some kind of evil troll campaign of people in the shadows spreading false rumours. The fact that you’re saying complaints were made against very legitimate and respected press organizations seems to me a weaponization and mischievous misuse of criminal sanctions against a free working press.
Mr. Côté: As a former journalist, I realize I was not articulate enough in my answer. My point was not that The Globe and Mail or La Presse was the object of a complaint but that somebody would say, “I saw in this or that paper that X said this about that leader, and I think you should investigate X for having said what I consider to be a false statement.” It’s in that context that most of these complaints will be filed with us.
Senator Simons: I still worry what onus that puts on the publisher or reporter. If I report someone saying something that is demonstrably false, and I report it as a way to demonstrate the outrageous thing this person has said, am I then captured by this legislation? Let’s say you have a president of an imaginary country who says publicly that one of his political opponents is lying about his place of birth — hypothetical. Could I be captured for factually reporting the falsehood spoken by a politician?
Mr. Côté: You’re talking not about the utterer of the false statement but, rather, the media organization that in good faith reports it?
Senator Simons: Yes.
Mr. Côté: Certainly for the reasons that Ms. Baron has expounded, I personally — as commissioner, or any commissioner in my seat, keeping in mind freedom of the press and freedom of expression — would be very hesitant before we launch an investigation against the media organization in the circumstances that you have described. We do understand, of course, the immensely important role that the media plays in terms of informing people and ensuring that the relevant information is received or is accessible for the electors.
My focus would be, in a case like the one you describe, to investigate the first maker of the false statement. Of course, if you talk about someone in a foreign country, that raises all kinds of other issues indeed.
If I may add, I am certainly not an expert in the law of defamation and in particular how it applies to media organizations. Maybe Ms. Baron would be better placed if you are interested in speaking to that.
Senator Simons: As somebody who was a journalist and is acquainted with defamation law, I certainly know that Canada is an extremely plaintiff-friendly defamation jurisdiction compared to the United States. It is far easier to launch a defamation action here and far easier to win. I remain to be convinced that our existing defamation laws are not sufficient defence against false stories. But thanks. I’ve asked more than my share of questions.
Mr. Côté: Thank you.
Ms. Baron: May I make a brief comment?
The Chair: Yes, Ms. Baron.
Ms. Baron: Thank you very much, senator, for your comments. I will just make a few brief observations. First, I was very pleased to hear that Mr. Côté would defer to the importance of a free press and exercise his discretion accordingly if he were to receive a complaint. However, I think that obfuscates the real issue, which is that we have a law that on its face is vague, so that, even before a complaint would get to Mr. Côté’s office, somebody looking at it on its face and seeing the implications and the potentially draconian fines or jail-time punishments would err on the side of caution.
I take your point that venerable media organizations like La Presse are more sophisticated, and it’s disconcerting that they or their writers should be a target of these complaints. However, they do have legal teams and budgets. In our litigation, we brought affidavits from several political writers and bloggers — who, as the government knows, contribute very substantively to the online political discourse these days — who gave evidence that they were already planning on changing their communication strategy around the 2019 federal election in response to this law and not wanting to be caught by it. An investigation would be crushing for them. They don’t have a legal team. They don’t have a budget.
So the chilling effect applies even if an investigation is not commenced. Thank you very much.
Senator Simons: Thank you.
The Chair: I have a question for you, Mr. Perrault. I asked this question this morning, and I don’t know if you heard me ask it. I was told to ask you.
How can you prove that a person who made or published a false statement had the intention of affecting the results of an election? Additionally, how can you prove the person knew that the statement in question was false?
Mr. Perrault: I would have to defer to the commissioner on that, because it is his mandate to look into these matters and decide what evidence suffices to justify prosecution. I wouldn’t want to overstep the boundaries here.
The Chair: I wanted to go to you first and then go to the commissioner. Commissioner, I wanted to give you the final word on this, so if you may please comment.
Mr. Côté: So I have the final word on this. Thank you, senator.
Yes, I think you mentioned if the act is clear — if the intent to affect the results of an election must be something that the prosecution is able to prove beyond a reasonable doubt.
Largely, I think the answer to your question is a question of context. You would look at all the circumstances. First of all, the seriousness or the gravity of the false statement, if you will, but also in what context it was made, to whom it was made and against whom it was made. You would speak to witnesses, of course. It’s very context-specific. Of course, such false statements under section 91 have to be made during an electoral period.
You would look at all this and you would say, “Am I in a position to show beyond a reasonable doubt the evidence that I have been able to amass to convince a judge, beyond a reasonable doubt, that, in fact, the reason why X said this, or the purpose that he or she was pursuing when they said that, was to affect the results of an election?”
It’s very contextual. You have to look at all the circumstances surrounding the making of the false statement, and then a judgment call has to be made. Of course, if you decide or I decide to go ahead with the prosecution, there will be a judge, obviously, that will hear the evidence. At the end of the day, the judge will decide whether or not the investigator and the prosecutor have been able to satisfy the judge that this threshold has been met.
The Chair: Thank you very much. I want to thank Mr. Perrault, Chief Electoral Officer, Commissioner of Canada Elections Mr. Côté, and Joanna Baron, Executive Director of the Canadian Constitution Foundation, for appearing today. We certainly learned a lot from you, and we look forward to working with you again in the future. Thank you very much for taking the time to be here today.
To the committee clerk, Mr. Palmer, and to all people supporting him today, and to the analysts, Mr. Walker and Ms. Keenan-Pelletier, and to you, senators, thank you very much for all the work on this bill. Once the report is ready, we will get together again.