THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 29, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to examine the subject matter of those elements contained in Divisions 29, 30, 35, 36, 43 and 44 of Part 4, and in Subdivisions B and C of Division 34 of Part 4 of Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: I’m Mobina Jaffer, senator from British Columbia and chair of this committee. I invite my colleagues to introduce themselves, starting on my left with the deputy chair.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Dalphond: Pierre Dalphond from Quebec.
[English]
Senator Prosper: Senator P. J. Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Senator Paula Simons, Alberta. I come from Treaty 6 territory.
Senator Cotter: Brent Cotter, senator for Saskatchewan.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Tannas: Scott Tannas, Alberta.
The Chair: Welcome, minister, to this committee. It’s probably one of my last committees so it’s nice that we have two Ugandans here today: the minister and myself.
Before we begin, I would like to ask all senators and other in‑person participants to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters. If possible, ensure that you are seated in a manner that increases the distance between microphones. Only use a black approved earpiece, the former grey earpieces must no longer be used. Keep your earpieces away from the microphone at all times. When you’re not using your earpiece, please place it face down on the sticker placed on the table for this purpose.
Senators and witnesses, thank you for your cooperation.
Senators, as you are aware, we are meeting to continue our study of the subject matter of those elements contained in Divisions 29, 30,35, 36, 43 and 44 of Part 4 and in Subdivisions B and C of Division 34 of Part 4 of Bill C-69, an act to implement certain provisions of the budget tabled in Parliament on April 16, 2024.
For our first panel, I’m pleased to welcome the Honourable Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada. It’s a real pleasure to welcome you again, minister, to this committee. The minister is joined by officials from the Department of Justice Canada: Shalene Curtis-Micallef, Deputy Minister and Deputy Attorney General of Canada; Sandro Giammaria, Counsel, Criminal Law Policy Section; Anna Dekker, Senior Counsel and Deputy Director, Judicial Affairs Section; Erin Cassidy, Counsel, Criminal Law Policy Section; Kenyatta Hawthorne, Counsel, Criminal Law Policy Section; Daniel Bourgeois, Senior General Counsel, Tax Law Services Portfolio; Joanna Wells, Counsel, Criminal Law Policy Section; and Marie-Josée Poirier, Counsel, Judicial Affairs Section. Welcome to all of you as well. It’s a pleasure to have you.
Senators, may I respectfully ask that you leave your questions for the officials for the second round? If you can, just direct your questions to the minister for this round because time is always limited.
Minister Virani, we will begin with your opening remarks. The floor is yours for 10 minutes when you’re ready. Welcome, minister.
Hon. Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada: What a distinct honour it is not only to be back at this committee but also to have you in the position of chair. I want to acknowledge your 20‑plus years of service to this fine institution and wish you a terrific and a well-deserved retirement. Thank you for all of your contributions to this country. It is an honour to be speaking to a fellow Ugandan in that role.
I am here to address the issues that relate to justice matters within the Budget Implementation Act and specifically to talk about the swift and strong action we are taking to combat auto theft.
Our initiatives are especially focused on thefts involving violence or links to organized crime as well as addressing money laundering.
[Translation]
I also plan to outline certain changes in the use of judicial resources and some measures to support a fair and accessible tax justice system for everyone.
[English]
We know presently that a vehicle is stolen every five minutes in Canada. It is clear that auto theft poses a significant challenge to our communities.
Our government is committed to taking action to keep people in Canada and their property safe. This is why we have included a number of important measures in the Budget Implementation Act that will effectively combat auto theft. We know the profits from auto theft are being used to fund organized crime, including human trafficking and drugs and weapons trafficking.
Over the past few months, the government has heard the concerns and challenges identified by provinces and territories, law enforcement and the automotive and insurance industries.
This is precisely why we convened the National Summit on Combatting Auto Theft in February of this year. Our commitments to address auto theft are reflected in our recently released National Action Plan on Combatting Auto Theft, which builds on this important work.
[Translation]
While the Criminal Code already contains strong measures to combat vehicle theft, more can be done. As a result, the government is proposing legislative changes that would give law enforcement and prosecutors additional tools designed to combat violent vehicle theft and the complex criminal networks often involved in vehicle theft.
[English]
The proposed amendments include five measures:
First, two new indictable offences targeting auto theft and its links to violence and organized crime, punishable by a maximum of 14 years imprisonment.
Second, two new offences for possession or distribution of a device suitable for committing auto theft with maximum penalties of 10 years imprisonment.
Third, an offence for laundering the proceeds of crime for the benefit of a criminal organization punishable by a maximum of 14 years imprisonment.
Fourth, a new aggravating factor at the sentencing, which would be applied to an adult offender who involves a young person in the commission of the crime.
Fifth, provisions that make making wiretap warrants and DNA orders available to investigate these proposed offences.
[Translation]
These changes will help law enforcement investigate and arrest the people involved in violent vehicle theft and look at their ties to complex criminal networks.
[English]
They will give our police a better chance to intervene before thefts take place, based on preparatory conduct like possessing and distributing technologies that facilitate auto theft.
[Translation]
The measures would also provide clear direction for the courts to impose harsher penalties for vehicle theft where appropriate and protect young people by preventing organized crime groups from using them to commit vehicle theft and other crimes.
[English]
These amendments will hit organized crime where it will hurt, by going after the money it makes through auto theft. They do so through establishing the offence of laundering the proceeds of crime for the benefit of a criminal organization. This would include the proceeds of crime from auto thefts.
[Translation]
This new money laundering offence is one of many legislative measures announced by the government in Budget 2024 to combat money laundering, terrorist financing and sanctions evasion. The government has also introduced amendments to the Criminal Code and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
[English]
The proposed Criminal Code reforms in the Budget Implementation Act include:
First, a new order to keep an account open or active for a limited period of time available to law enforcement based on prior judicial authorization to support the investigation of a criminal offence. This measure would support criminal investigations by preventing a financial services provider from closing an account suspected of being linked to criminal activity for a limited period of time to prevent the loss of evidence.
Secondly, a new production order available to law enforcement based on prior judicial authorization that would require a person to produce specified documents or data on pre-established dates over the duration of the order. This measure would support criminal investigations by providing for the timely production of recent and relevant documents or data on predetermined dates.
These supplement changes made in Bill C-59 will also make it easier to investigate and prosecute cases of money laundering. Bill C-59 is the government’s Fall Economic Statement. That would include touching on things such as third parties and accounts that have digital assets.
[Translation]
These measures reflect the views expressed by the stakeholders during the consultations on strengthening Canada’s anti-money laundering and anti-terrorist financing regime held in summer 2023. Many stakeholders told the government that new investigative tools were needed to help law enforcement address serious crimes, including money laundering.
The stakeholders also emphasized the importance of the rights protected by the Charter. These measures contain significant safeguards, such as the requirement for prior judicial authorization, time limits and the possibility of challenging the order.
[English]
These amendments also respond to a recommendation made in the final report of the Commission of Inquiry into Money Laundering in British Columbia — Madame Chair, your home province — a commission known as the Cullen Commission, which talked about implementing a formal keep-open account framework to further criminal investigations.
Budget 2024 also announced amendments to the Judges Act to strengthen the complement of judges on the court. The effect of these amendments is to move 17 positions from the unified family court stream to our superior courts.
While the government continues to support unified family courts as one way of providing access to justice for Canadian families, repurposing these 17 positions at this time will allow for a timely response to the current pressures in superior courts, including possibly in family caseloads.
I am committed to addressing the court backlog in this country. I have appointed 113 judges in my first 10 months as minister, a pace of appointments that has no precedent whatsoever in Canadian history, and eclipses any annual total for a previous minister of justice — Conservative or Liberal. I will continue to work diligently to keep appointing high quality judges who reflect the diversity of Canada to superior courts across the country.
I also want to reference a small change made in this bill to the Tax Court of Canada Act, which will allow the court to authorize a corporation in specific circumstances to be represented by a person other than a lawyer if that person is a member of his organization, such as a manager or an employee.
While not in the Budget Implementation Act, I do want to discuss investments made in legal aid by our government in Budget 2024. Ensuring Canadians have equitable access to justice is an integral part of a fair and just society. I’m looking at Senator Clement because I know she has had extensive experience working in legal aid. This is why in Budget 2024 we are investing $440 million over five years in criminal legal aid and $273.7 million over five years in immigration and refugee legal aid. That’s a sum total of $710 million over the next five years for both categories of legal aid investments.
These investments, particularly those in criminal legal aid, will support access to justice for Canadians who are unable to pay for legal support, in particular, Indigenous people and individuals from Black and other racialized communities, who are overrepresented in the Criminal Justice System. These investments will also help with court backlogs. Unrepresented and poorly represented litigants cause delays in the justice system. Ensuring these individuals have proper support and representation will help ensure access to a speedier resolution.
[Translation]
I look forward to answering your questions.
[English]
The Chair: We will now go on to questions. I have two questions for you. Minister, you stated that you will be relocating 17 judicial positions from unified family court to superior trial courts to enhance access to justice for Canadians. I’m troubled by this because if I understand it correctly, you are going to take positions from the unified court and put them in the superior court. The idea was that unified courts would be more accessible and not as expensive. I understand that Alberta is not using those positions, but this is a very troubling situation.
Mr. Virani: I would agree with you. It’s a troubling situation. When we allocated 17 judges for unified family court positions to the Province of Alberta in 2018, we thought there would be robust take up in that province as there was in many other provinces around the country. The provinces that use the unified family court system include Ontario, Newfoundland and Labrador, Nova Scotia, P.E.I., Saskatchewan and Manitoba.
Alberta was given six years at this point to use those slots. They were repeatedly requested by my predecessor, orally and in writing. I requested personally with Minister Amery, orally and in writing, whether they would be using those positions. We have had significant demand for those positions by some of the other provinces, so our intention is to take monetary amounts that are already allocated for 17 judges and allocate them, including in a unified family court situation, to provinces that want to use them to deliver on access to justice.
The Chair: Thank you, minister, for that explanation. Why are the amendments to the Criminal Code addressing the serious issue you mentioned about motor vehicle theft included in the budget implementation bill rather than in separate legislation? Can you please provide insight as to why there isn’t separate legislation? In my experience, it’s very hard to study a bill or an issue that’s in a budget implementation bill. It’s not as full of a study as if it is in a separate bill.
Mr. Virani: Madam Chair, thank you for the question. There are two aspects there. One is that one of the targeted measures that we’re taking in terms of fighting against auto theft is through financial instruments because we realized that gone are the days of teenagers going on joyrides. This is organized criminality that is orchestrated in Canada and sometimes outside of Canada, and we need to address it aggressively, including through money laundering provisions that are seen in both Bill C-59 and in this budget.
Secondly, why is it in the budget and not in free-standing legislation? I would say to you — and perhaps this question might be best put to the few members at this table who actually sit in a caucus, which would be your Conservative colleagues — about how difficult it is to pass legislation in the House of Commons. When we’re facing a national crisis such as automobile theft, we will work with pace because Canadians expect us to work with pace. Putting these measures into the Budget Implementation Act allows to us pass the measures into law more quickly than we would otherwise be able to because of the obstruction tactics we’re seeing in the House of Commons right now, particularly by His Majesty’s official opposition.
That’s the situation we are in right now, but we’re not going to delay in terms of addressing this pressing issue and addressing the needs for community safety that Canadians have expressed to us from coast to coast to coast.
The Chair: Thank you very much, minister, for your very detailed explanation.
Senator Batters: Thank you. Minister, this week the Peel Regional Police released the results of Project Odyssey, an investigation that lasted seven months and led to 26 arrests, 322 charges and the issuance of 10 additional arrest warrants for auto theft. Among those arrested, 14 out of the 26 were already out on bail for auto theft charges and 8 of those, even though it was just this week, have already been released. The Peel Police chief expressed exasperation, stating, “We see repeated individuals continue to victimize our community.”
After nine years of the Trudeau government’s lax criminal laws, auto thefts in Canada have increased 34%, with an increase of 300% in Toronto, 100% in Montréal, 100% in the Ottawa-Gatineau region, 120% in New Brunswick, 122% in Ontario and 59% in Quebec.
Minister, wouldn’t you concede that the Liberal government’s actions aggravated this awful situation with the measures that you introduced in your Bill C-75? Bill C-75’s restraint principle stipulated that any decision on an accused’s release should aim to release them at the earliest reasonable opportunity, with the least onerous conditions possible.
Mr. Virani: With all due respect, Senator Batters, I reject pretty much everything you just said.
First of all, the reason why the Peel Police were able to effectuate hundreds of arrests and lay hundreds of charges is in part due to investments we made in guns and gangs, which your party, frankly, voted against. That’s $121 million. That’s the first point.
The second point is with respect to individual decisions on bail. They are pursuant to the parameters outlined in the Criminal Code. You will know — because you’ve looked at the bill at this very committee — that under Bill C-48, we changed the bail reform provisions, which included ensuring that there be reverse onus on bail for anyone who commits a crime as a serious violent repeat offender. Right now, if you use a gun in a crime or if you commit a gun theft that is violent using a weapon, you’re subject to reverse onus, which makes it harder to get bail.
If an individual bail decision is rendered by a justice of the peace — it’s not rendered by me, as you’re fully aware. An individual decision by a justice of the peace in Ontario can be reviewed on a bail review decision. I would ask you to put some of those questions to the local Crowns.
Lastly, with respect to Bill C-75, as a lawyer, I would urge you to reflect on your own training or perhaps the training of Senator Dalphond as a previous judge. When you codify in a bill like Bill C-75 Supreme Court jurisprudence, all you’re doing is reflecting the state of the current law, which is what Bill C-75 did.
Your party insisted on voting against that bill, notwithstanding the fact that it actually elevated the penalties for summary conviction offences for automobile theft. I question the actual integrity in terms of your commitment to auto theft in your caucus, at least.
Senator Batters: Thanks for the “lawyersplain” there.
Minister, you mentioned Bill C-48 as a response to the concerns that I raised about the bail system, but Bill C-48, unlike how you phrased it right there, was actually a minimal response to this, despite what the premiers asked for. It was limited to reversing the burden of proof for only certain specified offences that had multiple conditions and situations attached to that.
Why haven’t you proposed since then a much more comprehensive bill that actually reflects those concerns and addresses the concerns about offenders of auto thefts? Also, why in your government’s Bill C-5 did you allow increased use of conditional sentences — house arrest — for auto theft?
Mr. Virani: Again, a few bits of clarification that need to be put on the record here.
What Bill C-5 did is target things like mandatory minimum penalties that resulted in the over-representation of Black and Indigenous persons in our penal system and our court system. If that’s not a priority for you and your caucus, so be it.
Secondly, with respect to what we did with regard to the issues in Bill C-48, we created a reverse onus for people who committed crimes using serious violent repeat offences. In particular, we enhanced the provisions that deal with usage of firearms.
For your edification, what I would underscore is that if you’re involved in the unlawful possession of a loaded or easily loaded prohibited or restricted firearm, such as one that might be used in a carjacking in daylight right now in Toronto or in your province of Saskatchewan, which triggers a reverse onus on bail.
What we will not do is embark upon some of the things that have been cavalierly posited by the leader of your caucus, which is basically to overturn the presumption of bail that is entrenched in section 11(e) of the Charter by using the notwithstanding clause. It’s never been done by a federal government or someone who purports to assume the mantle of leadership of a federal government. On our side of the aisle, we actually stand by the Charter, including all of the Charter rights, which includes the right to reasonable bail under section 11(e).
[Translation]
Senator Dalphond: My question refers to judges. I gather that, in the Judges Act, the number of floating judges assigned to each specific court has been changed and that some of them have been transferred from the family court system to the general system. My first question is the following. Is this a sign that the unified family court system has reached a cap? The system started a long time ago. I was a young judge when the system began almost 30 years ago.
My second question is the following. These are the maximum figures authorized, but how many judges are available in the system? We have 58 more potential judges for the family division. How many are actually left? Is the pool partly exhausted?
Mr. Virani: To answer your questions, when the system was first created, an allocation — I’m not sure whether I’m using the right word — of 75 judges in total was established. A total of 58 judges were already allocated to the provinces that I referred to. These provinces were Ontario, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Saskatchewan and Manitoba. The remaining 17 judges were allocated to Alberta.
After six years, they repeatedly said that they couldn’t use the judges for a unified family court as such. The decision was made to reallocate these judges to superior courts across Canada, especially in provinces that wanted more judges for unified courts. Is there a cap of 58 judges? Not at all. There may be a maximum of 75 judges already allocated, but some flexibility remains. If a province says that it needs a few judges for a family court, but some judges are also on the general list, it’s possible to do both at the same time with the remaining 17 judges.
Senator Dalphond: I gather from your response that Alberta hasn’t amended its Court of Justice Act to create these 17 positions. As a result, after a number of years, the need hasn’t been established, while other provinces have amended their legislation and are awaiting appointments?
Mr. Virani: Exactly. As soon as I arrived, I had a number of meetings with my counterparts in the other provinces. I’ve been told a number of times that if judges aren’t being used by our colleagues in Western Canada, they can be used here. We’re always willing to listen, especially in Alberta. If they need help with other types of judges, we’re willing to listen too.
Senator Dalphond: My other question concerns the new offences relating to car theft. I’m particularly interested in electronic equipment that makes it easy to enter a car and take control of it. The offence created concerns the possession of this type of equipment, but with the intent of stealing the car. The Minister of Innovation, Science and Industry is given new powers to prohibit this type of equipment from being imported into Canada. In this case, a person in possession of the equipment wouldn’t need to have the intent to steal. The equipment would simply be prohibited. For the general offence created, the person must also intend to use the equipment to steal a vehicle. Wouldn’t it have been better to create an offence for possession of this type of equipment without lawful excuse?
Mr. Virani: Good question. I want to point out that we’re looking at the situation from two angles. Minister Champagne’s component concerns the importation of this type of equipment, which can be used to make theft easier. Our component concerns the location and distribution of this equipment. This can help us prevent a theft before it happens.
Senator Dalphond: This requires intent?
Mr. Virani: This requires intent, of course, along with the mens rea needed for the offence under the Criminal Code.
[English]
Senator Prosper: Thank you, minister, for coming before us today.
My question relates to auto theft and the additional tools — and, you’ve outlined five measures — focusing on where an adult uses a young person. That’s something within sentencing that the judge has discretion to consider.
Have you thought of having any further guidelines or factors to help you guide that assessment?
Mr. Virani: You’re right insofar as aggravating factors are contemplated on sentencing in a number of contexts — considerations about whether hate was a motivation, for example. In terms of what we understood and what we’ve come to understand from law enforcement, this has become a sophisticated criminal operation and people are instrumentalizing, in particular, young Canadians, including racialized Indigenous and Black Canadians. We wanted to target the fact that if it becomes clear to a judge hearing such a case that there was that type of utilization of a young person, that could aggravate the crime and therefore result in a larger sentence.
Senator Prosper: It would be left to those factors for the judge to consider within the context of the facts?
Mr. Virani: Yes.
Senator Prosper: Thank you.
Senator Cotter: Welcome, minister. It’s always a pleasure to have you here. I have two questions unrelated to what has been asked so far. The first relates to the procedures that are now put in place for appealing the Canada Disability Benefit. The benefit is so paltry that perhaps no one will appeal. I hope you begin your answer by apologizing for how paltry it is.
Having said that, the benefit appeal process has every other benefit like Employment Insurance appeals, Canada Pension Plan disability appeals, Canada Pension Plan, Old Age Security. It goes ultimately to the Federal Court or to the Federal Court of Appeal. For some reason, if these benefits on appeal are income related, they go to the tax court. Appeals on other issues go elsewhere. It seems to me you’ve made this needlessly and unfairly complex. I’m going to ask you to respond to that in a minute.
My second question is a constitutional question related to the Impact Assessment Act. In the Supreme Court of Canada, a large portion of the act relates to whether or not what is known as “effects within federal jurisdiction” are sufficient to constitutionalize the Impact Assessment Act. The Supreme Court of Canada said — that is, the Chief Justice writing for the majority — that this phrase goes far beyond the limits of federal jurisdiction. The response in the amendments in this bill now uses the phrase “non-negligible effects.”
In your view as Minister of Justice, does that now meet the constitutional standard? We heard testimony yesterday from the Minister of Justice from Alberta — not in this committee — who said, to paraphrase, “not even close.”
Mr. Virani: I’ll take them in reverse order. My view is that our response to the Impact Assessment Act decision rendered by the court in October of last year was in a manner that is very much commensurate with the division of powers analysis of the Supreme Court of Canada.
With all due respect, Senator Cotter, I’ve actually heard more concerns from the other side of the ledger. People who are strident climate advocates have said that we’ve gone too far in terms of calibrating it and making sure it complies with the Supreme Court decision.
In terms of the appeal provisions, this is something I prepared for in case this question arose. I’ll confess to not being intensely familiar with the nuances of the Canada Disability Act Benefit, but we did extensive consultations before creating this new provision and how it would be articulated. In terms of its appeal route, an appeal of a decision made under the benefit act would go first to the Social Security Tribunal of Canada. If the grant of appeal relates to income, the tribunal will refer that appeal on that ground to the Tax Court of Canada Act for a decision. It’s only a subset of provisions that will go to the Tax Court of Canada. That Tax Court of Canada decision will then be communicated to the tribunal, and so on. I’m not sure if that helps clarify.
Senator Cotter: On the last one, the question is why? All the other ones just go to the Federal Court and someone doesn’t have to figure out the multiple choices they have to make when they make an appeal.
Mr. Virani: One of the results of the consultation was that stakeholders referred specifically to that first point I mentioned, namely, going to the Social Security Tribunal. They spoke favourably of its ability to help unrepresented individuals navigate the system. That’s why the first port of call on appeal is the Social Security Tribunal.
Senator Cotter: My question is really about the second port of call.
Mr. Virani: With respect to that, there’s expertise at the Tax Court with respect to income matters.
Senator Cotter: All the others are income measures as well, but they don’t go to the Tax Court. I can show you your own website on that.
Mr. Virani: I’m doing my best to assist you, Senator Cotter, but there was an effort to ensure symmetry with respect to what the Tax Court is hearing as a body. There are aspects of the decision-making that go to the Federal Court rather than the Federal Court of Appeal, according to my notes. This provision was the idea that it starts with the Social Security Tribunal and only if it relates to income does it go to the Tax Court.
Senator Simons: I have a novel question and also one we’ve dealt with a bit. I want to be really clear as an Alberta senator. These 17 judges were to be made available to the Alberta courts. The Alberta government didn’t want to use the judges in the way that you had requested. So now Albertans are having those 17 judges taken away from Alberta and assigned elsewhere. That’s what we’re talking about here. This seems like hard cheese for the people of Alberta whose courts are as backed up as anybody’s.
Mr. Virani: In all candidness, Senator Simons, I share your frustration. I would be even more frustrated if I were an Albertan. That’s why we took six years to work with them and to try to understand the problem with using these judges for what they were purposely designed, namely, the Unified Family Court. About seven other jurisdictions in this country have taken up the call to use them. The Unified Family Court is a one-stop shopping model that helps litigants gain access to justice by not having to determine whether they’re properly in front of a superior or a provincial court. It is quicker and cheaper, and it is a tried-and-true model that works for people and would work for people in Alberta.
Senator Simons: My daughter is a family lawyer in British Columbia. I am not opposed to unified family courts. What I question, though, is this: If Alberta has the constitutional jurisdictional power to decide how to arrange its courts, these 17 judges could have been assigned to Superior Court positions in Alberta — or at least some of them could have.
Just to be clear, Alberta is being punished for not using the judges in the way you and perhaps I would prefer, and those judges will be assigned to other courts while Alberta watches.
Mr. Virani: I would not accept that characterization whatsoever, Senator Simons. What I would say is that if you have a concern about Alberta’s inability to meet the needs of Albertans in an efficacious and cost-effective way, you should take that up with Minister Amery and the premier of Alberta. Because after six years, what we will not do as the Government of Canada is to allow funded positions for family court access to lay unused when there is so much demand in other parts of the country.
I understand your frustrations, and I share them. We took this step after a lot of negotiation back and forth and after repeated attempts to get Alberta to understand why this is a proven and tried-and-true model. They elected not to use them for what they were designed for. Please understand that when they were allocated in 2018, it wasn’t an allocation of judges, generally speaking. It was an allocation of unified family court judges. The call was taken up by seven other provinces. The fact that Alberta didn’t take them up is something for you to raise with the Government of Alberta.
Senator Simons: My next question has to do with safe consumption sites. I have been on record as a long-term proponent of safe injection and consumption sites. But I — along with many Canadians — have watched with mounting dismay as a policy that I thought made sense from a public health perspective — we see such terrible distress on our streets. People are dropping dead from poisoned drug supplies, and the consumption sites seem to be normalizing the taking of drugs rather than providing people with safe supply.
Can you tell me how the provisions contained in the budget balance the need to protect the health and welfare of people who consume illegal narcotics and other drugs with public safety considerations?
Mr. Virani: What we’ve always been trying to do since our government took office in 2015 is to ensure that, first of all, the issue of opioid deaths and deaths caused by use of narcotics is treated as a health care issue rather than a criminal issue. You asked about how enforcement feeds in. We have a four-pillar strategy: prevention, harm reduction, treatment and enforcement. The decriminalization provisions contained within the budget implementation act address both the harm reduction and treatment components.
You’ve seen that so far in terms of our suppleness with how we’re responding to these issues. I know it’s not in your province — it’s in the province next door — but we had a pilot project that B.C. had asked for. They asked for changes to it, and we responded to that. Very recently in my own city of Toronto, we had a request for similar decriminalization, and our evaluation was that it didn’t meet the public safety imperative, and that application was turned down.
Senator Pate: Welcome, minister, and welcome to your officials.
I want to address two areas. One is the auto theft issue. I want to pick up on some of the issues raised. We know — and as you’ve identified — there’s an issue in terms of young people being recruited, particularly racialized young people at a time when the government has stressed the importance of dealing with supports for Indigenous and Black youth so that they’re not at risk of being preyed upon by those who might recruit them. This measure to deal with auto theft actually seems to be going after the very young people who are most likely to be criminalized. They will be the easiest to catch. This seems to be what the car companies want and not necessarily what will actually address this issue. We know that installing kill switches and other anti-theft measures could be done by auto companies for as little as $10 to $100 to stop these cars from being stolen altogether.
I’d like to hear why the decision was made to go this route instead of looking at the more effective route of going after the car companies and insisting they take action. This will just result in completely undermining the other efforts you’re making to reduce the numbers of Black and Indigenous folks in prison.
Here is my second area of interest. Although it’s not squarely within the areas we’ve asked you to look at, when this goes south, it will be within your department’s ambit to have to defend the actions of the government. This is about the plan to contract beds in federal prisons for immigration detention at a time when, according to the Canada Border Services Agency, or CBSA, we’re talking about somewhere between 25 and 47 people. They’ve determined that these people are high risk, but their own data reveals that only 1% pose a danger to the public, and 83% and more are determined as high risk because of their flight risk.
A number of us have been to the immigration detention centres. As you know, I think I’ve been to all but one of the federal penitentiaries in this country. The cost to implement an interim measure will be almost $1 million per person. When we were in the new centres in both Surrey and Laval, it was clear that they are under-capacity. They have more than 200 free beds. They also have entire units that, if necessary — according to CBSA — could be fortified.
Why has the measure been taken to put people into federal penitentiaries at a time when there’s a huge concern about the overuse of isolation and human rights concerns being raised?
Mr. Virani: Thank you, Senator Pate, for your two questions.
I would respectfully disagree with your characterization that what we are doing through these measures in the budget implementation act will actually result in more overrepresentation of Black and Indigenous men and women. What I would point out to you is that by ensuring we have targeted measures such as the one Senator Prosper asked me about, where you treat it as an aggravating factor for those who are organized criminals who are using and victimizing teenagers — including racialized teenagers — demonstrably shows that our target is on those who are orchestrating, paying for and ordering the crimes as opposed to those effectuating the particular theft of a given automobile. I think that stand in stark contrast to the rhetoric we hear from the Conservative Party in the House of Commons, who would simply reject Charter protections against the presumption of innocence and things like your right to reasonable bail not to be denied without just cause.
You’re right to point out our Black and Indigenous strategies. We’re very committed to those. I’m very committed to those, including finishing them up and publicizing them by the end of this year. Bill C-5 targeted exactly what you’re talking about in terms of overrepresentation. As well, we’ve had measures that deal with training that is needed for judges on things like systemic racism.
I would also point out and draw your attention to the National Action Plan on Combatting Auto Theft, which talks about different components. We’re looking at this in a manner that is not siloed. Motor vehicle standards and changing the motor vehicle standards is something that falls under the purview of Minister Champagne, and he’s charged with doing exactly that. So I agree with you on that.
With respect to the immigration detention issue, what I can say is that we’ve done an analysis of the need for it. We understand there is a need for ensuring there’s a place to house individuals where such housing is required. We’ve also done a Charter analysis in terms of whether any Charter concerns are triggered. That Charter statement is a public document, and you can view it. In our assessment, this meets Charter scrutiny, and it’s also an important initiative in terms of Canadians’ public safety.
[Translation]
Senator Carignan: Good afternoon, minister.
I gather that there aren’t any new judges for Quebec in your announcement. Alberta doesn’t want 17 judge positions, and you’re offering them to the interested provinces. However, in Quebec, when we speak with the judges — because they speak to us and to you — they report a significant shortage. In Quebec, I’m told that about 15 judges are needed. Neither the budget nor your announcement include any new puisne judge positions specifically for Quebec.
Mr. Virani: The budget bill seeks to free up these 17 judges, but it doesn’t specify the target for the provinces.
Senator Carignan: In your discussions with the provinces, outside the bill, have you talked about increasing the number of judges in Quebec, either starting with the 17 judges or from other places?
Mr. Virani: Yes, my ministerial office staff and I are in regular contact with the chief justices of all provinces. That includes the Honourable Marie-Anne Paquette, Chief Justice of the Superior Court of Quebec, as well as the Chief Justice of the Quebec Court of Appeal.
Senator Carignan: Will her request for additional judges be granted in the coming days or months?
Mr. Virani: I want to point out that there is always discussion with the chief justices. The request for additional judges has to come from the minister. So the request has to come from Simon Jolin-Barrette, not the Honourable Marie-Anne Paquette or anyone else.
Senator Carignan: Are you saying that Minister Jolin-Barrette has not specifically requested new judges?
Mr. Virani: I am in touch with him, but I’m not sure if he has written to me about needing more judges. We were asked about that last week and I remember that just eight judges are needed in Quebec: six for the Superior Court and two for the Court of Appeal.
Senator Carignan: You have authorized DNA warrants for auto theft offences.
Mr. Virani: Yes.
Senator Carignan: You also authorized them for the possession and distribution of electronic devices. I am very pleased because I introduced a bill to broaden the Criminal Code offences that could be subject to DNA warrants. I want to commend you on that.
There are a lot of other offences in the Criminal Code. I do not want to minimize their importance, but the possession and distribution of electronic devices related to auto theft are not as serious as some of the other offences. Some offences are more serious. Do you intend to broaden the use of DNA warrants for other offences besides those two, auto theft and the possession and distribution of electronic devices used in auto theft?
Mr. Virani: The bill clearly sets out our intent. I just wanted to point out that there is more at stake in auto theft since the proceeds are used to fund national and international criminal organizations. The proceeds are used to fund other kinds of offences, such as prostitution, drug trafficking and human trafficking. The issues are much broader. What we heard from the police, especially in Quebec, is that we have to interrupt and intercept the link between criminal organizations and their funding because those organizations exist to promote more crimes.
Senator Carignan: My question is the following: do you want to extend DNA sampling to various other offences? That is what the police want; they are all asking for that.
Mr. Virani: We listen to the police, what they want to do to effectively target individuals and to prevent crime. Our intent with this bill is DNA sampling for auto theft only.
Senator Carignan: Thank you.
Senator Clement: Hello, minister.
[English]
Thank you for highlighting the immense contributions of Senator Jaffer. Always a good place to start.
Number two, I certainly will not argue with you about investments to Legal Aid. That is always a good thing. I just want to remind us that in Ontario we have a legal clinic system as well that doesn’t deal with family and criminal law but does deals with the fallout of systemic racism of overrepresentation of Black and Indigenous people, so they also need funding and some love and attention. I would just put that on the record.
My questions are around consumption sites. I took note of your answer to Senator Simons. I looked at the documents where you consulted on supervised consumption sites. I do not see anywhere that municipalities were consulted. You consulted service operators, Indigenous, provincial, territorial, but municipalities have a lot to say on those sites, and I wondered if that was in the works or whether you thought about that.
For auto theft, you mentioned the National Action Plan on Combatting Auto Theft. In that strategy, is your government looking at working with car companies in the way they design vehicles, talking about prevention — nothing to do with the Criminal Code — with corporations and insurance companies and their responsibility?
I’ll just throw in the Black Justice Strategy, because I don’t get to see you often. I have heard good things and some frustration around how long it’s taken. I spoke to Black people in Halifax and in Yellowknife, up north, who are saying that they need to feel that their unique local considerations are taken into that Black Justice Strategy and feel that’s lacking.
Mr. Virani: Thank you very much. On the issue of legal clinics, I hear you loud and clear, Senator Clement. I helped to create a legal clinic called SALCO in Toronto.
Senator Clement: You did.
Mr. Virani: I would say that our role at the national level is that from time to time we will fund specific projects or endeavours that are taken on by a legal clinic in Ontario or elsewhere in the country. In the main, Legal Aid Ontario’s funding is a port of call of Minister Downey at the provincial government level.
With respect to cities, I’m looking at the notes being passed to me by the department. I know there will be more consultations. The Toronto application for decriminalization was a city-led initiative, so there is an extensive consultation with the city in that context, but obviously, the provincial one in B.C. was province-wide.
With respect to auto theft, absolutely at the National Summit on Combatting Auto Theft we had all of the system actors involved, standards associations but also insurance companies and automobile dealers themselves. It is not lost upon me that some of the anti-theft devices can be quite simply implemented and to some extent already exist in certain highly electrified vehicles. You can talk about the highly electronic vehicles that are less susceptible to theft because they are so controllable and controlled. It begs the question of the motor vehicle standards, and that is part of the national action plan we announced on Victoria Day last week.
With respect to the Black Justice Strategy, I share your passion to work quickly on this, to do it right. I would gently say is that there was a bit of a delay that was not a delay on my part but a delay caused in terms of finalizing the work product of that expert steering committee. They do incredible work. They wanted to make sure their work was top-notch. It is top-notch, but there was a delay occasioned by them getting that material to me. We are proceeding with pace on the next steps, which is putting out a “what we heard” report, crafting a draft strategy and working toward implementing it in the calendar year of 2024.
Senator Clement: Thank you.
[Translation]
Senator Audette: I am pleased to see you, minister.
As you know, the government launched the National Inquiry into Missing and Murdered Indigenous women and girls. It resulted in 32 calls to justice for the Government of Canada and 183 for all governments across Canada.
I have looked carefully and you certainly have a lot of responsibilities as minister. A team is being created quickly for auto theft, and legislative changes have been proposed.
After a major inquiry into missing persons, however, we do not see the kind of response that honours the calls to justice. This is a question I will ask each government witness. Where do things stand? AMBER alerts, red dress day, why just one region? Canada is a vast country.
At the same time, there should be a tribunal on the rights of Indigenous persons or an ombudsperson so we know where things stand and what progress is being made. I would like to have seen those things in the bill as a commitment from the government.
In short, I also know that questions have been asked and that there are various concerns about supervised consumption sites.
In the world I come from, it has aggravated matters instead of alleviating problems and supporting people. Go to the Downtown Eastside. That is where I go on the weekend, in Vancouver. Women are saying that consumption has increased. So if there is decriminalization, the statistics will be interesting, but the death toll will continue to rise.
I don’t know how you coordinate your efforts with your colleagues to address mental health issues and their effects and how you respond to the other calls to justice.
Thank you, minister.
Mr. Virani: Thank you, senator. Regarding the National Inquiry into Missing and Murdered Indigenous Women and Girls, a number of the calls to justice involve my department and the government in general. Let me say first that it is a priority for me and for the entire government. I understand your concerns and your frustration with the rapid action on vehicle theft. I can point out, however, that our investments have tripled since 2015 as compared to those of the previous government in all matters relating to Indigenous rights holders across Canada.
The budget for the red dress alert includes an investment of $1.3 million. We have 12 new cell towers along the Highway of Tears in British Columbia. We have also created new shelter spaces for Indigenous women. We have created 36 police services led by Indigenous groups or Indigenous rights holders. Is that enough? No, we have to do more and I understand that.
As to the ombud and the possibility of creating a commission, I think that relates more to the United Nations declaration, but we are in fact in the process of addressing that. I also have a bilateral meeting next week with the Assembly of First Nations and Cindy Woodhouse and we will be talking about that.
As to the consumption issues and our response, our broad goal is to prevent deaths. It is a simple as that. Another issue we have not dealt with so far is the objective of a safer supply. Fentanyl is the cause of a lot of deaths and it is a serious problem. That is why we created the Substance Use and Addictions Program, along with a supply program. That involves my own riding in Toronto.
We have to keep looking to see what more we can do, especially considering that mental illness is often at the root of opioid consumption issues.
Senator Audette: Thank you.
[English]
The Chair: Minister, may I ask you to stay a few minutes longer? There is one more senator who wants to ask a question. Is that okay?
Mr. Virani: Yes.
Senator Tannas: Thanks, Minister Virani. I’ll be brief. I just noted the question and answer with Senator Simons with respect to the unified family court positions. Then I contrasted that with the exchange you had with Senator Carignan in French. They are also not participants in the unified family court, yet with Senator Simons, you said, “Tell Alberta too bad, so sad, we’ll do what we want with these judges.” You didn’t make that response to Senator Carignan. You said you hadn’t decided what you were going to do. Can you explain that?
I’m not a lawyer, and I’m new to the committee. Maybe I just missed something, but it seemed to me that there were two sets of responses for the same question.
Mr. Virani: Senator Tannas, thank you for your question. What I would say to you is I’m not trying to give different responses to different provinces. I am at the listen of all provinces, including their ministers.
What I said earlier prior to my exchange with Senator Simons is that the 17 judges who are available to be allocated can be allocated across the country for unified family court purposes or for Superior Court general purposes. I think I said this to Senator Dalphond. That would include if there are needs in Alberta for the general Superior Court.
Secondly, I don’t appreciate the characterization you put on it in terms of “too bad, so sad.” That’s not what I was attempting to say whatsoever. If you’re looking for an expression of my commitment to address the needs of the Alberta courts, what I would say is look no further than the person I suggested to the Prime Minister to be elevated to the Supreme Court of Canada, which is the Chief Justice of the Alberta Court of King’s Bench, Mary Moreau, an outstanding jurist who also happens to be the first Franco Albertan to ever serve in the Supreme Court of Canada.
I have a good relationship with Mickey Amery. I was frustrated with the fact that they did not want to use them for the unified family court purposes, but if Minister Amery has a different need for different judges of a different ilk or categorization, I’m always at the listen to the various ministers around the country.
Senator Tannas: Thank you for that clarification.
The Chair: Minister, thank you very much for coming. Your office responded right away when we asked for you to come, so we very much appreciate that. We look forward to seeing you again in the future.
For our second panel, we have quite a number of officials to answer our questions. From the Department of Finance Canada, we have Erin Hunt, Director General, Financial Crimes and Security Division; and Justin Brown, Senior Director, Financial Crimes Policy. From Innovation, Science and Economic Development Canada, we have Marc-André Rochon, Acting Director General, Spectrum Management Operations Branch, Spectrum and Telecommunications Sector; and Amy Jensen, Director, Spectrum Management Operations Directorate, Spectrum and Telecommunications Sector, Telecommunications Sector. From Health Canada, we have Jennifer Pelley, Director, Office of Legislative and Regulatory Affairs, Controlled Substances and Opioid Response Directorate, Controlled Substances and Cannabis Branch; and from the Department of Justice Canada, Erin Cassidy, Counsel, Criminal Law Policy Section.
Can you start your presentations, please, Justice Canada? We’ll start with you, Ms. Cassidy, and followed by Mr. Burgeois.
Erin Cassidy, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you very much. I will give brief remarks specifically related to the proposed Criminal Code reforms for money laundering and terrorist financing in Part 4, Division 34, Subdivision C.
My colleagues from the Department of Finance Canada will also speak to additional measures relating to money laundering and terrorist financing but set out in the proceeds of crime money laundering and terrorist financing act and other instruments.
Budget 2024 and the proposed Budget Implementation Act propose two amendments to the Criminal Code. The first is a new order to keep an account open or active for a limited period of time available to law enforcement on prior judicial authorization on a reasonable ground to suspect standard to support the investigation of an offence established under an act of Parliament.
Financial service providers often unilaterally close accounts suspected of being linked to criminal activity which can hinder investigations into crime. That is the rationale for this first proposed measure.
The second proposed measure is a new production order to enable law enforcement to obtain prior judicial authorization on reasonable grounds to believe standard for the production of specified documents or data on pre-established dates over the duration of the order to support the investigation of an offence established under an act of Parliament.
This proposal would provide a more consistent and timely means by which law enforcement can obtain the specified documents or data in a manner that is consistent with Charter protected rights. Thank you very much.
The Chair: Thank you.
Daniel Bourgeois, Senior General Counsel, Tax Law Services Portfolio, Department of Justice Canada: I’m here for Division 30 of the Budget Implementation Act. It’s a short amendment to the Tax Court of Canada Act to grant the Tax Court of Canada the power to authorize a person that is before the Tax Court that is not an individual — mostly a corporation — to be represented by a member of its organization and not by a lawyer.
Basically, the provision brings the powers of the Tax Court in line with those of the Federal Court which already had that power. It allows the court to consider a taxpayer’s request that cannot afford a lawyer and where the choice is between deciding not to challenge an assessment of tax or to hire a lawyer, to be represented by an employee, director or an officer. It enhances access to justice and it provides fairness in bringing litigants that go before the Tax Court of Canada in the same situation as those that go before the other federal courts.
The Chair: Thank you. Ms. Dekker, Division 29, Judges Act?
Marie-Josée Poirier, Counsel, Judicial Affairs Section, Department of Justice Canada: I’ll be doing the presentation. I work with Ms. Dekker.
[Translation]
Hello, Madam Chair and senators. We are from the Judicial Affairs Section of the Department of Justice and we will be talking to you about Division 29 of Part 4 of the bill.
This Division contains clause 320, which amends two paragraphs of the Judges Act to repurpose 17 judicial salaries originally authorized in Budget 2018 from the section on unified family courts (section 24(4)) to the section on general trial courts (section 24(3)(b)). This will allow the Minister of Justice to reallocate judicial resources to any superior trial court in Canada in a way that will respond to requests for judicial resources and demonstrated need. Judges appointed to a trial pool position can hear a variety of matters, including criminal, civil and family law matters.
[English]
The Chair: We will now go to Sandro Giammaria, Division 35, Criminal Code (Motor Vehicle Theft).
Sandro Giammaria, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you, Madam Chair. Good evening, senators. As mentioned, I am here to discuss briefly the amendments related to auto theft. I can do no better than did the minister in summarizing all this, so I’ll repeat it.
That portion of the bill proposes five changes. One would be to introduce two new offences targeting auto theft where violence is used, threatened or attempted in the commission of that offence. The other auto theft offence is where the theft is linked to organized crime.
The second measure proposes two new offences again related to electronic devices that facilitate auto theft. The one offence would criminalize possession of such a device for the purpose of committing auto theft, while the second of those offences would criminalize a variety of forms of distribution — making, repairing, selling, importing, et cetera. There’s a list within the provision, but collectively we refer to it as distributing the device. In that offence, it’s where the person distributing has knowledge that the recipient of the device intends to use it for an auto theft.
The third measure would introduce a new money laundering or laundering for the proceeds of crime offence where it’s related to organized crime. I think the minister aptly laid out the links to auto theft in that regard.
The fourth provision would introduce a new aggravating factor applicable at sentencing and applicable to adult offenders or youth offenders who are sentenced as adults. That aggravating factor would require sentencing judges to consider as aggravating the use of a young person in the commission of an offence.
Lastly, there are a number of amendments that make available investigative tools like wiretaps and DNA orders in respect of the new offences that are proposed.
The Chair: Thank you. We will now go to the Department of Finance Canada.
Erin Hunt, Director General, Financial Crimes and Security Division, Department of Finance Canada: Good evening. My name is Erin Hunt. I work at the Department of Finance in the Financial Crimes and Security Division, and I’m here to speak to Division 34, Subdivision B, which proposes amendments to strengthen investigative powers and to support operational effectiveness of Canada’s Anti-Money Laundering and Anti-Terrorist Financing Regime Strategy.
There are also changes in Part A of the subdivision, which are specific to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, but I’m going to speak to the amendments proposed to the Income Tax Act and the Excise Tax Act. These amendments propose to include an additional warrant power to allow the Canada Revenue Agency authority to seek, obtain and execute general warrants for certain specified and limited purposes.
Criminal tax investigations are becoming more complex, often extending beyond provincial and national borders, and criminals make use of new technologies and sophisticated schemes to evade taxes. To keep pace, the Canada Revenue Agency investigators and computer forensic analysts need the ability to seize and analyze evidence more quickly, before it is lost, destroyed or otherwise compromised.
The Canada Revenue Agency, or CRA, investigators and computer forensic analysts are authorized to seek and execute search warrants and a range of other Criminal Code warrants and orders to investigate income tax and excise tax offences. However, currently, they are not authorized to seek and execute Criminal Code general warrants. General warrants authorize, under certain conditions, the use of investigative techniques or devices, such as computer forensic analytics. They are regularly used by law enforcement to search and seize evidence in all forms of criminal investigations, such as electronic data relating to fund transfers.
The Canada Revenue Agency must currently request a police officer to obtain and execute a general warrant on CRA’s behalf. Providing CRA investigators with the authority to seek, obtain and execute some aspects of the general warrant from a court would allow time-sensitive, sophisticated and complex tax offence cases to be more efficiently investigated without having to rely on law enforcement agencies to execute such warrants. These amendments would come into force 90 days following Royal Assent.
The Chair: Thank you. We will now go to Innovation, Science and Economic Development Canada.
[Translation]
Marc-André Rochon, Acting Director General, Spectrum Management Operations Branch, Spectrum and Telecommunications Sector, Innovation, Science and Economic Development Canada: Thank you, Madam Chair, for the opportunity to speak to the committee today. I would first like to acknowledge that we are coming to you from the unceded territory of the Anishinaabe Algonquin people. I would also like to thank them for being stewards of the land and waters in this area since time immemorial.
[English]
Auto theft is a complex problem that requires manufacturers, insurance companies, shippers, law enforcement agencies and governments to work together to identify solutions. Each partner has a role to play in combatting this challenging issue.
We are here today to discuss Innovation, Science and Economic Development Canada’s, or ISED’s role as the regulator of wireless communication devices in Canada’s strategy to address this problem.
Auto theft impacts thousands of Canadian households every year, and the government has seen evidence of this rising trend. In 2022, as compared to the previous year, rates of vehicle theft rose by 50% in Quebec, 48% in Ontario, 35% in Atlantic Canada and 18% in Alberta. Auto theft increasingly involves organized crime groups who are using the proceeds of auto theft to fund other illegal activities.
In recent years, wireless communication technologies have become ubiquitous in our daily lives, to the great benefit of Canadians. Unfortunately, these technologies are also being used to facilitate unlawful activities.
[Translation]
This is why the government announced, via Budget 2024, proposed amendments to the Radiocommunication Act. These amendments aim to curb auto theft in Canada as part of the suite of changes the government is bringing forward. In particular, they will limit access to wireless devices used in auto theft and allow their removal from the Canadian marketplace.
Currently, the minister has established technical standards and certification requirements for radio apparatus in support of Canada’s effective management of spectrum.
[English]
Innovation, Science and Economic Development Canada takes action to prevent the sale and distribution of devices that do not conform to the established technical standards, including devices that may enable auto theft. These nonconforming devices may include remote key programmers, immobilizer key programmers and code grabbers.
Through existing routine market surveillance activities, ISED identifies devices found in the Canadian distribution chain that are not on the Radio Equipment List, which is a requirement for most radio equipment in Canada.
Innovation, Science and Economic Development Canada also targets radio frequency signal jammers, which are prohibited under the Radiocommunication Act and are known to be actively used in conjunction with vehicle theft. Innovation, Science and Economic Development Canada engages with distributors to ensure that corrective actions are taken regarding the sale of uncertified and prohibited devices in Canada, such as discontinuing their distribution.
However, certain radio apparatus that can be used for criminal activity may also be used for legitimate purposes. Therefore, the amendments are required, as many of these devices are not captured by existing legislation and regulations. As such, they can be used and sold anywhere in Canada, provided they meet technical standards and are certified.
[Translation]
ISED recently launched a public consultation to gather further information on the nature and variety of potential illegitimate uses of these wireless devices, which will inform any regulatory changes concerning their sale, distribution and possession.
While there is no silver bullet, we believe that amending the Radiocommunication Act to address new technologies and growing threats is a measured and appropriate response to auto theft.
[English]
Thank you for your attention. We will be pleased to answer any questions the committee may have.
The Chair: Thank you very much. We will now hear from Health Canada.
Jennifer Pelley, Director, Office of Legislative and Regulatory Affairs, Controlled Substances and Opioid Response Directorate, Controlled Substances and Cannabis Branch, Health Canada: Thank you for the opportunity to speak with all of you today. My name is Jennifer Pelley. I’m the Director of the Office of Legislative and Regulatory Affairs in the Controlled Substances and Opioid Response Directorate of Health Canada.
[Translation]
I am here to speak with you about Division 44 of Part 4, which proposes a number of amendments to the Controlled Drugs and Substances Act (CDSA).
[English]
Supervised consumption and drug-checking services are an important, evidence-based part of Canada’s comprehensive public health response to addressing substance use-related harms and the overdose crisis.
[Translation]
Over the past 20 years, Canadian and international studies have consistently shown that, when properly established, supervised consumption and drug checking services help to save lives and connect people who use drugs to social services and treatment.
[English]
Data reported to Health Canada indicates that between January 2017 and October 2023, supervised consumption sites in Canada received over 4.4 million visits, responded to over 53,000 nonfatal overdoses and made over 424,000 referrals to health and social services.
Supervised consumption sites reduce public drug use, the spread of diseases and strain on emergency services.
Currently, supervised consumption sites legally operate pursuant to a ministerial exemption under subsection 56(1) of the Controlled Drugs and Substances Act, or CDSA. Some shorter-term supervised consumption services — which you will hear referred to as overdose prevention sites, as well as stand-alone drug checking services — operate pursuant to an exemption issued under subsection 56(1) of the act. Applications for an exemption are considered on a case-by-case basis.
As the number of supervised consumption and drug checking services has expanded significantly across Canada since 2016, so has the evidence in support of their positive impacts on reducing overdose harms.
[Translation]
The proposed amendments to the CDSA would do three key things.
[English]
First, the regulation-making authorities in subsection 55(1) of the CDSA would be amended to allow for the establishment of a new regulatory scheme to authorize supervised consumption and drug checking services.
The proposed regulatory scheme would have clear and predictable regulatory requirements to provide more stability and transparency for service operators, while maintaining strict controls that are consistent with the public health and public safety objectives of the Controlled Drugs and Substances Act.
Notably, the bill would amend paragraph 55(1)(c) to include certain activities that are relevant to the operation of supervised consumption and drug checking services, namely, possession, transportation, sending or delivery of the substance or class of substances. This would enable the Governor-in-Council to make regulations respecting the authorization of such services.
Second, subsection 56(1) of the CDSA and related provisions would be repealed on a subsequent date to be fixed by order of the Governor-in-Council. The proposed new regulatory scheme, once developed and approved, would replace the current exemption scheme. Thus, subsection 56(1) and related provisions, which govern the exemption scheme for supervised consumption sites, would no longer be necessary.
These sections would only be repealed once the new regulations have come into force to avoid any disruption to existing service providers and their clients.
Third, transitional provisions included in the bill will ensure that even once subsection 56(1) of the CDSA has been repealed, all existing sites can continue to operate until their exemptions expire. At that point, operators would apply to Health Canada for an authorization under the new regulatory scheme. Should the legislative changes be adopted, Health Canada would engage in consultations with stakeholders to make sure all views are considered in the development of the new regulatory scheme.
Thank you.
The Chair: Thank you very much. Senators, you will all have three minutes to ask questions, starting with the deputy chair.
Senator Batters: First of all, this is about the auto theft issue. Why doesn’t the new subclause 333.1(3) of the Criminal Code in this bill provide for a minimum sentence in case of recidivism when vehicle theft was committed with the use, attempt or threat of violence, unlike the minimum sentence for vehicle theft without violence that’s currently provided for in subsection 333.1(1) of the Criminal Code, and the same reasoning applies to the new subclause 333.1(4) of the Criminal Code in this bill, which deals with motor vehicle theft for a criminal organization? There’s no minimum sentence for that either, yet, without violence, it does have a minimum sentence? How is that consistent?
Mr. Giammaria: Thanks for the question, senator. As to the choice of whether to include mandatory minimums, that’s a question best directed to the government. As an official, I can talk about what’s in the bill and try to provide some clarity.
In the existing offence under subsection 333.1(1) the mandatory minimum that’s there applies to a third or subsequent conviction. The conviction data tells us that very few people are actually subject to that mandatory minimum. Mirroring that here would probably have the same small effect.
In any case, the principal difference between that and the proposed offence here is the 14-year maximum. The additional element of violence being used in the commission of the offence, where that’s not an essential element of the existing offence, would tend to aggravate — in the sense of increasing — the seriousness, severity or impact on victims of the commission of the offence, therefore, warranting a higher maximum.
Senator Batters: Since I only have three minutes, I have to go on. Thank you. I imagine the data would show that almost no one gets the maximum sentences.
This is another question that I would have liked to have asked the minister, but he didn’t have time to stay for a second round.
The Chair: With absolute fairness, we only asked him to come for an hour.
Senator Batters: I recognize that there was no time for a second round.
Last October, the Supreme Court of Canada ruled that the vast majority of the “no more pipelines bill” — Bill C-69 — and the entirety of the regulations were unconstitutional, and that act had almost 200 sections and the Supreme Court found that only 10 sections were acceptable. What did this government do? Seven months later, they plugged in a massive legislative fix for that Bill C-69 into this Bill C-69, the omnibus Budget Implementation Act, and many contend that those provisions will still be found unconstitutional by the courts.
As the justice minister — Canada’s chief lawmaker — I wanted to ask the minister why he didn’t advise the Trudeau government that it was wrong to jam that kind of a huge complicated measure to try to fix Bill C-69 into a Budget Implementation Act, where Parliament cannot properly scrutinize and amend that major legislation. Since the minister’s time here expired without a chance for me to ask that, I will ask you as officials. When did justice officials receive instructions from this government to put that type of a huge legislative change into the budget implementation act?
Mr. Giammaria: I’m the only official sitting here at the table, and I’m here to talk about auto theft.
Senator Batters: I imagine you have officials for all kinds of other things. If you could please ask somebody from the Justice Department when those instructions were received from the government about putting that particular massive section into the Budget Implementation Act.
Mr. Giammaria: I can’t speak to that.
Senator Batters: I know you can’t, but I’m asking you to —
The Chair: Four minutes.
Senator Prosper: I have a question for Ms. Pelley. I appreciate that on Division 44 you outlined the relationship of transitional provisions between the existing exemption provisions and the new regulatory scheme that is going to be proposed. As I understand it, as one gets established, the exemption exists as long as it is valid.
Ms. Pelley: Correct.
Senator Prosper: You mentioned that part of that new regulatory regime is going to be based on consultations within the regulations. Can you provide any insights on what is going to guide those consultations to develop those new regulations? What parties will you be speaking to or what process is envisioned for that?
Ms. Pelley: Certainly. Thank you very much for the question. I should note that we did previously undertake a consultation with stakeholders around a proposal to develop new regulations for supervised consumption sites and services. That was a comprehensive consultation conducted in 2020-21.
It was actually largely the outcomes of that consultation that pointed to the need for legislative amendments that would move away from the current exemptions process for supervised consumption sites and services. At that time, we consulted broadly with a number of key groups, notably, service operators — operators of current supervised consumption sites in Canada — as well as people with lived and living experience with substance use, law enforcement and health care professionals. It was a fairly robust consultation. We also accepted written comments. We published a notice of intent and received approximately 100 written responses. We also did something called a Knowledge Exchange Series, where we brought together subject-matter experts to exchange information around the evidence pertaining to supervised consumption sites and services. That, again, offered a balance of a diversity of perspectives around the issues. It was really the outcomes of that consultation that pointed us to it.
In addition, it is our intent to undertake additional consultations if the legislative amendments are adopted. We would consult largely with the same groups but also publicly give an opportunity to anybody with an interest in the regulations to weigh in.
Senator Prosper: Thank you.
[Translation]
Senator Dalphond: I forget who talked about Division 36.
[English]
Who spoke for Division 35, Justice Department? Amendment to motor vehicle theft.
[Translation]
Regarding Division 36, clause 380 of the bill would amend the Radiocommunication Act to prohibit the possession of all radio apparatus, equipment and devices. If I am reading it correctly, the proposed amendment does not stipulate any intent; simple possession is enough.
Mr. Rochon: That’s right.
Senator Dalphond: The purpose of the bill is to enable the minister, in accordance with clause 381, to prohibit any apparatus used in auto theft.
Mr. Rochon: It could be for other things, but the main objective right now is auto theft; you are right.
Senator Dalphond: That was my understanding. Moving on to Division 35, which amends the Criminal Code as regards motor vehicle theft, clause 370 says that subclause 332.2(1) of the Criminal Code is amended as follows:
Everyone commits an offence who possesses an electronic device suitable for committing theft of a motor vehicle, knowing that the device has been used or is intended to be used to commit vehicle theft offence.
So the intent is required.
Mr. Rochon: That’s right.
Senator Dalphond: In one case, no intent is required, the issue is possession of an apparatus. In the second case, the issue is possession of an apparatus to commit motor vehicle theft, but the intent is required.
Mr. Rochon: Yes.
Senator Dalphond: There are two offences for the possession of likely the same apparatus.
[English]
Mr. Giammaria: One is a criminal offence; the other is of a regulatory nature. Constitutionally, as a principle of fundamental justice, a criminal offence requires a fault component, as I’m sure you know.
Senator Dalphond: What is the maximum penalty under the Radiocommunication Act?
[Translation]
Mr. Rochon: Would you like me to answer in French?
Senator Dalphond: Yes.
Mr. Rochon: Under the Radiocommunication Act, there is an administrative monetary penalty. For an individual, the penalty can be up to $25,000. For a corporation, the penalty can be up to $10 million. For repeat offences, the penalty is up to $50,000 for an individual and up to $15 million for a corporation.
Senator Dalphond: How many million?
Mr. Rochon: Fifteen. That was already in the act; that is why you don’t see it. It is already there for other types of offences.
Senator Dalphond: Is there no prison term? Is it just a fine?
Mr. Rochon: There can also be a prison term of six months to a year depending on the offence.
[English]
Senator Simons: That’s exactly what I wanted to ask about. In the criminal provision, it specifically says for motor vehicle theft. However, in the Radiocommunication Act, as you’ve just explained, it says for a purpose specified by the minister — ministre urgence — and you said it could be different kinds of purposes. This seems to me overly broad because this legislation would allow the government or the minister of the day to prohibit the manufacture, sale, possession, use, and so on, of any radio apparatus, equipment or device specified by the order of the minister. It doesn’t say a device that would be used in the commission of a crime or to eavesdrop on people.
I’m also a member of the Standing Senate Committee on Transport and Communications. It concerns me that this gives broad latitude to a minister to ban the sale of radios or any kind of device for any reason that he specifies.
Mr. Rochon: Thank you for the comment, senator. You’re right; it’s a bit broader. The way the Radiocommunication Act is structured, unlike the Criminal Code, it can’t direct toward specific offences. It’s about the use of wireless communication, in this case, interception of communication.
In order for the minister to issue an order, the department, on his behalf, would need to follow the regulatory process that is followed for any type of ministerial order. You have to do a regulatory impact assessment to make sure you don’t negatively impact other things. You need to do a public consultation as well. There are some checks and balances within the Treasury Board and within government to make sure that the benefits to Canadians are greater than potential harm to Canadians.
Wireless devices are everywhere now, senator. They’re in your laptop, in your vehicles and in industry automating factories. There’s potential risk in the future of interception of telecommunications that could cause serious harm to Canadians and Canadian businesses, hence the way this is structured. If there’s another major risk to Canadians, then these provisions could be enacted upon to address that.
Senator Simons: Then you’re good to go. I’m always concerned with anything that has to do with communication which impinges on freedom of speech and the right to know. I always imagine what this legislation would be capable of being twisted into, in the hands of the worst possible prime minister. I’m wondering if there are enough checks and balances to ensure that this provision could not be abused in such a way that it would impinge on the capacity of Canadians to communicate among themselves or, frankly, for the kind of technological advancement that you’re talking about. This would potentially allow a future minister to regulate the way we use Wi-Fi.
Mr. Rochon: This would follow the Statutory Instruments Act. Within government, we have to trust our government institutions to enforce and make sure that these things don’t happen. If those systems work as intended, they should prevent such things.
Senator Simons: Thank you very much.
Senator Cotter: I want to go back to the Judges Act. I forgot to whom I might be posing my question.
It’s been great to have you all here, although the number of signs we have to keep making will stretch our budget, I think.
Senator Simons: I feel like we need music, like some sort of Benny Hill —
Senator Cotter: To be absolutely clear and maybe take some issue with what the minister described, the conversation was focused on Alberta. The amendments to section 24 of the Judges Act seems to redistribute potential additional judges that were specified for use in Unified Family Courts across the country. Now 17 of them have been moved to the more general pool of general administration Superior Courts. If I understand this correctly, those 17 could be distributed to any jurisdiction, including Alberta.
I think I’m right, am I not, that those 17 cannot, as the minister seemed to suggest, be redistributed to Unified Family Courts in other jurisdictions because they have been rolled up out of the Unified Family Court category? Am I right that they’re no longer available for use in Unified Family Court environments in any other provinces either?
Ms. Dekker: They would not be able to be used for Unified Family Courts as the provinces had established them. However, they could be used for family matters in general trial courts, depending on how a Chief Justice, for example, would allocate the various cases among their judges.
Senator Cotter: That could be anywhere in the country?
Ms. Dekker: Exactly.
Senator Cotter: By rolling them up, is this a small concession that this aspect of access to justice — I don’t want to say failed — has gone as far as it can go?
Ms. Dekker: I don’t know that I would go that far. I know from the history that unified family courts started as pilot projects in various jurisdictions that opted to try them out. They were deemed to be successful. There have been policy decisions by various governments over the years to expand them. They first opened in 1970. So there have been various expansion efforts. The most recent one was in the Budget 2018 announcement, so I wouldn’t interpret it as saying it’s a failure at all. The government continues to support unified family courts, but there are various needs across the board.
Senator Cotter: This amendment caps and indeed shrinks the number of additional judges that can be sent to unified family courts.
Ms. Dekker: Yes.
Senator Cotter: Thank you.
Senator Pate: I’m interested in the demographics now in terms of the auto theft category for the current offences that exist. What are the demographics? I’m interested in the age of folks who are convicted, both under the Youth Criminal Justice Act, or YCJA, and under the Criminal Code of Canada; the length of the sentence; the race and how that plays out. Whatever information you have.
Mr. Giammaria: I beg your pardon, Senator. I was struggling to take notes of what you were asking for. I got as far as age and length of the sentence.
Senator Pate: And race and gender too. I suspect it’s predominantly male.
Mr. Giammaria: I regret to say that I don’t have that data readily at hand, but I can certainly undertake to provide it if that’s of assistance.
Senator Pate: That would be great. Could you show over time how that has moved?
The Chair: Can you kindly provide the data to the clerk and he will share it with all the members?
Mr. Giammaria: Yes, thank you, Madam Chair.
Senator Pate: If you could have it across jurisdictions as well, that would be great. I know not all provinces routinely provide that information to Statistics Canada, but whatever you have would be useful.
I’m wondering whether either of you are comfortable opining on this whole issue. Although, ostensibly, this is about addressing organized crime, in my experience, it’s not usually the folks who are even in the middle tier — it’s usually the lowest rungs. Generally, the folks I meet when I go into the federal penitentiary are not the ones who are profiting from the international sale of these automobiles, and certainly the international crime rings.
What are the efforts that will actually address those issues? In a country where we have named people in things like the Panama and Pandora papers and we are not prosecuting them, I find it hard to believe that we will be going after the big fish, if you will, rather than continuing to haul in the easiest to catch.
Mr. Giammaria: Thank you for the question. It’s an important one. I would start by saying that legislatively the law, in terms of party liability — a concept with which I’m sure you’re familiar — would apply to anybody who is a material party to the offence, whether they are in Canada or not. Legislatively there are routes to liability for all of the actors in, let’s say, an organized crime ring.
Who gets charged, when, and for what are matters of police discretion. If we’re talking about going after foreign actors, that’s a question of international cooperative enforcement, sort of beyond the purview of what I’m able to speak to. I can speak to that, the legal regime makes liability available. What motivates a certain kind of charge pattern or a certain investigation is really more a matter directed to police.
Senator Pate: Hopefully some of that will be evident by whatever you’re able to provide in terms of data we requested.
Mr. Giammaria: If you’re asking for sentencing data, it will be the aggregate data, so I don’t know that it will necessarily reflect where the person was when they were charged or things like that. I can certainly make those inquiries.
Senator Pate: That would be great. Thank you.
Ms. Cassidy: You mentioned the concern about those who are involved in organized crime or who are more highly placed and who are benefitting from the crimes. One of the proposed amendments put forward in the auto theft set of measures is a new proposed offence of laundering the proceeds of crime on behalf of, for the benefit of, or in association with a criminal organization, and that would be a pure indictable offence. That provision is intended to signal and to be available as a means of targeting those who are more highly placed benefitting from these offences and indeed laundering the proceeds of their crime.
Senator Pate: It would be very helpful if you could show the analysis you have done on how that again would not capture the ones who will be drawn into it by others. In my experience, the more we have those kinds of measures, the more it goes down the food chain of who is doing the actual work, including the money laundering responsibility, so thank you.
Senator Clement: I have questions for Ms. Pelley, Health Canada and Mr. Bourgeois, Tax Law Services Portfolio.
Thank you all for being here, first of all. I’m always impressed by our public service and by the people who are in the government and represent Canadians. Thank you. Smart and hard-working. It’s comforting.
The question I have for Ms. Pelley — I’ll ask my questions and then get out of the way — is you were talking about well-established consumption sites. You gave some stats on how good things come from there. It’s a terrible situation, but those sites can reduce harms.
You used the term “well established.” Do you have models that you analyze, that you hold up as models that you would want to see replicated elsewhere? In answering Senator Prosper’s questions around consultation, it sounds as if you will do more of that, so I do want to make a pitch for including municipalities into that consultation as well. If you could comment on that, I would appreciate it.
Mr. Bourgeois, tax court and access to justice strikes me as different, but when I look through, I understand. I’ve been to tax court as an articling student. This was a long time ago. It was a space where technical proficiency was valued, of course. Were you targeting small business, entrepreneurs here? If you are going to have that tax court, peopled by people who are unrepresented, how will the officials and justices be supported in that? When you’re dealing with unrepresented, it’s tough. The Income Tax Act, that brick, is tough even for lawyers.
Ms. Pelley?
Ms. Pelley: Thank you so much for the question. Thank you for your comments as well. They are appreciated.
Health Canada’s role when it comes to supervised consumption sites and services is really to ensure that the sites themselves — which are largely community-based and the impetus for these sites has always been kind of ground-up community-led initiatives — can legally operate. Our primary role is to make sure that they are not subject to the criminal penalties in the Controlled Drugs and Substances Act for things like possession on the site. That’s really Health Canada’s role. The whole concept of harm reduction has come and been kind of a ground-up community-led initiative over a series of time and building the evidence. I don’t want to speak on behalf of the sites themselves, who are the ones who have built that evidence and who have tested out things.
With respect to your question about when it is properly established, I think a large part of that has to do with community consultations prior to the opening of a site. What is the appropriate site, what is the appropriate location that is going to serve the needs of their clients, as well as broader community things? Our experience authorizing these sites through exemptions over the years has pointed to the importance of community consultations on a site-by-site basis. It’s not really Health Canada’s role to do those consultations or to dictate where the sites might be established, that really is a community thing. Certainly, in terms of the broader consultation around the regulations themselves, it would absolutely be our intention to engage with municipalities on those issues.
Senator Clement: Thank you.
The Chair: Thank you. Senators, we have about four and a half minutes. Two senators want second round —
Senator Clement: There was a second question for Mr. Bourgeois.
The Chair: I’m sorry. Go ahead.
Mr. Bourgeois: I should be brief. To answer your question about self-represented individuals, or corporations now, we should note that there are two divisions to the tax code of Canada. There is the general procedure, whose rules of evidence and procedure are comparable to other superior courts in other provinces, but there is also the informal procedure, which is an informal court, a sort of small claims court. The legislative provisions here only target the general procedure, because at the informal procedure, taxpayers can be represented by whomever they want. It could be a neighbour or a friend. But there remains the complexity of litigating matters involving self-represented individuals in what can sometimes be very complex issues. There needs to be an ability to navigate the rules.
Obviously, we cannot provide advice to taxpayers who are appearing before the court, but there are things we do and we’re trained to do to assist, such as providing our documents in advance and providing our legal arguments in advance so that the self-represented taxpayer can take knowledge of them before going to court. But there remains that tension between being an officer of the court and presenting and defending a client’s position in court and allowing the taxpayer, who is self-represented, to navigate those rules, which can be difficult.
Senator Batters: This question is for Ms. Cassidy. This is about the section you were speaking about. You gave us the initial part of what ex parte orders are — which for the non-lawyers watching means without notice to the parties involved, dealing with ex parte order to allow a judge to make certain accounts and dealing with certain accounts.
First of all, I would like clarification. Does that just pertain to electronic-type accounts like email or social media? I am also wondering if it applies to electronic bank accounts or bank accounts. I wasn’t sure if that was ex parte as well as the existing section, but it is. I did have a chance to check the section. I note that these new powers are contained in a Budget Implementation Act. Yes, it’s getting in new ex parte orders. Could you make that clarification of what type of accounts you are talking about here? But also, could those types of new powers, without notice powers, apply to a situation like the truckers’ convoy?
Ms. Cassidy: Thank you very much. I’m sorry that I didn’t catch the beginning of your question, but I do believe — and please correct me if I am wrong — that your question pertains to the keep open account order, is that correct?
Senator Batters: Sorry, could you repeat that — the what?
Ms. Cassidy: Does your question pertain to the keep open account order?
Senator Batters: Yes. That whole section, Subdivision C of division 34. I’m unclear what type of accounts you’re talking about.
Ms. Cassidy: Both of the orders are anticipated to apply. They can apply to financial accounts, bank accounts, for example. The first provision in particular was a recommendation of the Commission of Inquiry into Money Laundering in British Columbia, and the recommendation was that the Government of British Columbia should engage with the Government of Canada to establish a keep-open account framework. That recommendation came from some testimony before the commission in relation to the United States’ keep-open account framework.
Ours is different in that we are proposing a prior judicial authorization — an actual court order — whereas in the U.S. law enforcement can request it.
Senator Batters: Is it also dealing with electronic accounts, like emails, social media and that sort of thing, or is it just pertaining to financial accounts?
Ms. Cassidy: Yes, I wanted to give you the background on the —
Senator Batters: I know, I only have a short time.
Ms. Cassidy: The term account is not defined because it is anticipated that these orders may be useful in relation to other types of accounts, such as an email account, for example. Yes.
Senator Batters: Sorry, you were cut off kind of at the end. What did you say at the end of that answer?
Ms. Cassidy: I’m so sorry. It is anticipated and expected that these orders could be useful and available for other types of accounts.
Senator Batters: Okay. And the truckers’ convoy — could it apply to something like that?
The Chair: We are out of time. Thank you very much for being here. I want to thank the officials. You have been very patient with us, with coming to the table. I wish we had a bigger table; we don’t normally have this situation. Thank you very much, all of you, for being here. I’m sure we will see you again. Thank you. Senators, thank you, we’ll see you tomorrow morning.
(The committee adjourned.)