THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 8, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:19 p.m. [ET] to study the subject matter of those elements contained in Divisions 1, 21 and 22 of Part 5 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, today we will consider a draft report of our consideration of Divisions 1, 21 and 22 of Part 5, the Budget Implementation Act. This committee has recently had a tendency to consider this type of report in public, so we will begin in public today. Senators can propose a motion to move in camera if they so wish.
Senators, you have before you three documents. One is the report itself that steering agreed to send out. The other two are proposals that Senator Dalphond and Senator Pate will make on Division 1 of this report.
Senators, we are in public. I suggest we move in camera for some sensitive discussions. Is it agreed, honourable senators?
Senator Batters: Madam Chair, could you indicate, in general, what sensitive topic it is that we would move to a proceeding in camera?
The Chair: Certainly, Senator Batters. It’s a discussion between option 1 and option 2 and which one we should consider. Then we will have that same discussion in public again. Is that acceptable?
Senator Batters: Okay, thank you. I don’t see why we’d need to discuss that in camera. We had all the hearings in public. I think it could be done in public.
The Chair: Just for a few minutes.
Senator Dalphond: I will go for transparency too; in public.
The Chair: Senators, I see there isn’t consensus, so we will stay in public.
Senators, you have two options in front of you on Division 1 of Part 5, that is wilful promotion of anti-Semitism. I wanted to suggest to you that we look at option 2. It is my proposal that we look at sending option 2 to the National Finance Committee. I say that because if we suggest option 1 and it is not accepted by the Finance Committee, then they will not have another option to send to the House of Commons. I see that Senator Gold also has something to say.
Senator Gold: Thank you, chair. That is very kind of you to invite me. I hadn’t indicated a desire to speak. I’m interested in the views of the committee. I support your recommendation. I think option 2 makes the point that I gather the committee wants to make without going further than I think is appropriate. I’m in listening mode. Thank you so much.
The Chair: Thank you, Senator Gold. Senators, does anyone have any concerns with me suggesting option 2?
Senator Dalphond: I fully agree that real option here is option 2 and we should discuss option 2 first. I would also dispose of option 1 by the same token. If we discuss that, I would even suggest we delete the last sentence of option 2.
The Chair: Senator Dalphond, may I come back to you? I’d like to hear what Senator Batters has to say.
Senator Batters: I certainly agree with option 2 being pursued by this committee. I’m absolutely in agreement that option 2 is the appropriate one. I just have a couple of small wording changes I might suggest to that last sentence, that it could say amendments to criminal laws I would suggest adding the word “may” before “engage important constitutional” — perhaps adding the words “and legal questions” or something like that.
The Chair: Senator Batters, as for the details, may I come back to you on that? I won’t forget.
Senator Batters: Absolutely.
Senator Campbell: I also support option 2 for the reasons already put forward. Thank you.
The Chair: Thank you very much, senators, for supporting my suggestion. I appreciate that very much. Senator Dalphond, if you don’t mind, I will first go to Senator Batters to make the changes in the wording and then we will come back to you.
Senator Batters: Thank you. I would suggest for the last sentence of option 2: Add the word “may” before “engage important” and also adding the words “and legal” after constitutional in that same sentence. So instead it will read: “Amendments to criminal laws may engage important constitutional and legal questions that require a more in-depth study in committee and more thorough debate in the Senate.”
The reason I’m proposing that is it doesn’t always have that sort of implication but encompasses it further. It also makes it a more general-serving observation, because we did do some study of this particular part of the bill, it is probably the reason some of us more comfortable having it stay in and not recommending that it be taken out at this point. At the same time, we’re trying to make the observation so the government will pay attention to that. and this is not the appropriate way that these types of significant Criminal Code amendments are done on a regular basis.
The Chair: Thank you.
Senator Dalphond: My only concern is that the last sentence could be read as meaning that we have not done an in-depth study and we have done one. We had many panels and have certainly taken the time to carefully review that part.
The Chair: Senator Dalphond, are you suggesting that we take “require a more in-depth study” out of option 2?
Senator Dalphond: I think Senator Cotter has a proposal.
Senator Cotter: In a way, I agree with both Senator Batters and Senator Dalphond’s suggestion, so I would like to suggest some slight adjustments to the language. Let me say that I think Senator Batters makes a good point. You may recall that in some of the discussions with the witnesses, we heard about issues with interpretative challenges with respect to some of the language. Those are legal questions, not necessarily constitutional. I think that amendment to the observation is consistent with what we heard from the witnesses and what we probably thought among ourselves. I think those are wise changes.
With respect to Senator Dalphond’s suggestion, we could remove the words “a more” in the second line, and the word “more” in the final line and we’re still making the same point without suggesting that we have not done a very good job ourselves. We make the point of principle without suggesting that we had somehow failed to do it ourselves. Those are my suggestions to build on Senator Batters’ and Senator Dalphond’s suggestion about the observations.
[Translation]
Senator Dupuis: I think it would be better to remove the reference to the last sentence entirely. I do not believe that removing the word “more” addresses the issue raised by Senator Dalphond.
I think we have already said all we have to say and that the addition that is being made in this part of the bill is an important addition, which is being introduced in a large budget implementation bill. However, I also don’t like the idea that it sends a message that we haven’t done enough work on this. I think time has been taken to study the issue and I would prefer to see that sentence deleted altogether. Thank you.
[English]
The Chair: When you say “that sentence,” do you mean from “amendments to criminal laws,” starting from there?
[Translation]
Senator Dupuis: Exactly, yes.
[English]
The Chair: Senators, is there anyone else who wants to speak on this?
Senator Simons: I support Senator Batters’ suggestion specifically in this case, because despite my own misgivings about this proposal — and I have deep misgivings — I don’t believe it is unconstitutional given the precedents of Keegstra and Whatcott.
That’s why it’s important to include the word “legal.” To me, it feels like an infringement of free speech, but the Supreme Court has been clear in Keegstra that denying the Holocaust is not protected speech.
I guess the one thing that option 2 is kind of missing — and maybe we’re being a little too passive-aggressive — is the sense that I think you were all articulating that this needed to be a separate bill and that is the appropriate way to amend the Criminal Code, not just in a case that is as sensitive as this one about the Holocaust.
But I don’t know if there is a way to nuance a bit more of the language of option 1 into option 2 — not to say we think this should be struck from the bill but to signify a little more clearly the committee’s unease.
The Chair: Thank you, Senator Simons.
Senators, I wanted everyone to speak on this and then I will seek your permission. Is everyone accepting “may engage”? I don’t hear otherwise. And to remove “more”?
[Translation]
Senator Dupuis: No, I don’t agree.
[English]
The Chair: You want to remove the whole sentence?
[Translation]
Senator Dupuis: Yes. I wouldn’t have a problem with the beginning of the sentence, “Amendments to criminal laws engage important constitutional questions . . .”; if we stop there, I don’t have a problem.
[English]
The Chair: Does everyone agree with that?
An Hon. Senator: No.
The Chair: I’m sorry; I don’t know who did not agree.
Mark Palmer, Clerk of the Committee: There are several noes here in the room, Senator Jaffer.
The Chair: Senator Dupuis, do you want a roll call?
[Translation]
Senator Dupuis: No.
[English]
The Chair: Since we don’t agree to that, does everyone agree that we remove “more in-depth” in two places? Yes, okay.
Have I missed any suggestions?
Senator Batters: I think the only thing that is potentially left to be added in of what I was saying before — and that Senator Cotter and others agreed — is after the word “constitutional,” to add “and legal.” You didn’t ask about that, and I think there is agreement for that.
I wanted to briefly explain that that last sentence is what I think actually provides the explanation of what we’re trying to accomplish there.
The Chair: Before you do that, may I get people’s indication? Is everyone agreeing that it should be “constitutional and legal questions”? Does everyone agree?
Hon. Senators: Agreed.
Senator Batters: That’s all I wanted to say; I think that’s why that last sentence is important, because it provides the explanation as to what amendments to the Criminal Code should actually look like. It should not be part of a large budget implementation bill, and this is why. I think the wording that has been wordsmithed very wisely, with Senator Cotter’s help, makes that point.
The Chair: Thank you, Senator Batters.
Senators, do you all agree with this option or would you like a roll call?
Hon. Senators: Agreed.
The Chair: Thank you, senators. We will then go to the next section on Division 1 regarding the Canadian Pacific Rail taxation. We have only put one general comment about how the committee dealt with the constitutional amendment. Senator Dalphond and Senator Pate have proposed additions.
I will start with you, Senator Dalphond. What would you like to add?
Senator Dalphond: I think that observation 2 is not accurate because we’re not dealing here with a constitutional amendment. We’re dealing with more than what was in the constitutional amendment. We’re dealing with the end of legal proceedings and indemnity provisions and no right to compensation. We are dealing with statutory, in federal law, period.
I think the clerk circulated my proposal, and I’m going to propose a lighter version of it. I will keep only paragraphs 1 and 3, and I will delete paragraphs 2 and 4.
The Chair: Senator Dalphond, I would like the clerk to read what you had originally proposed. May I ask the clerk to read it?
Senator Dalphond: Can I ask the clerk to read only paragraphs 1 and 3? I’m deleting paragraphs 2 and 4.
Mr. Palmer: Paragraph 1 reads:
Section 1 proposes a retroactive amendment to section 16 of the contract and the schedule to An Act respecting the Canadian Pacific Railway, chapter 1 of the Statutes of Canada (1881), to terminate certain tax exemptions granted to the Canadian Pacific Railway Company.
Then if we’re deleting paragraph 2, Senator Dalphond, the third paragraph reads:
Further, additional provisions in Part 1 are intended to terminate the continuation of legal proceedings pending before the Federal Court of Appeal and to grant immunity from litigation to the federal government retroactive to 1966.
Senator Dalphond: “Are likely to terminate” instead of “intended.”
The Chair: Are there any comments, senators?
[Translation]
Senator Dupuis: Can I know the exact wording used in paragraph 3 which begins with: “De plus, des dispositions accessoires . . .”?
I heard two expressions: “ont pour objectif” and “auraient comme effet”; what exactly is meant in paragraph number 3, which becomes the second paragraph?
Senator Dalphond: This may be a bit of an affirmation. As I was saying, in English, “likely” would perhaps become “pourraient mettre un terme.” The words “ont pour objectif de” would be replaced in Part 1, and it would instead read “pourraient mettre un terme à la continuation des procédures.”
Senator Dupuis: So we would also need to correct the words “et accorder une immunité de poursuite au gouvernement,” and remove “et d’accorder.”
Senator Dalphond: We need to remove the “d’.” Thank you, Senator Dupuis.
[English]
The Chair: Senator Dalphond, do you agree?
Senator Dalphond: Yes, of course. She is absolutely right.
[Translation]
Senator Boisvenu: I would like to ask my colleague Senator Dalphond a question. What you are saying is more of a clarification than an observation. I am trying to understand what it adds to the text on Division 1 of Part 5.
Is this a clarification you want to make?
Senator Dalphond: The first paragraph summarizes the purpose of the legislation. Members of the Senate Standing Committee on National Finance who read the document will not necessarily read it in full.
The second paragraph notes that ancillary provisions in Part 1 could have the effect of terminating legal proceedings pending before the Federal Court of Appeal and could provide immunity from prosecution to the government.
This is still an issue that is sometimes debated. You will recall the Pearson Airport affair. When the Liberal government wanted to terminate the contract, the Senate voted very narrowly — the votes for and against were equal, in fact — against the amendment that said that changing contracts by legislation was not a good practice.
Senator Boisvenu: Substantively, it doesn’t change anything for the province?
Senator Dalphond: No.
[English]
Senator Cotter: Senator Dalphond and I have conferred informally on this. The two paragraphs that he provided provide a more factual description of what this amendment is all about and I think that is helpful. It doesn’t try to be normative in terms of calling it into question, but it tells a more precise story of what we are all about. As a result, I support it. I recommended to him the change from “intended to” away from the word “likely” — at least in English as consequences — so we weren’t necessarily attributing some kind of motive. I thought that was a fair representation of what we were seeing without us engaging in any judgment call. In light of that, I would support the observation that Senator Dalphond has put forward.
The Chair: Senators, does everyone agree?
Senator Batters: Thank you, Senator Dalphond, for taking those two paragraphs out because that takes a lot of my concern away on this particular issue.
I was going to suggest one sentence for the first part, the observation that was drafted by the Library of Parliament. I’m not sure if this is the appropriate time or if we’re going to finish off on Senator Dalphond’s part of it, but I was going to suggest that to the end of the first paragraph of observation 2, which has been presented to us —
The Chair: Senator Batters, may I please ask you to wait until we finish with Senator Dalphond’s part and then I’ll come back to you?
Senator Batters: Yes.
[Translation]
Senator Dupuis: I have no objection to the reminder in the first paragraph that this is a retroactive amendment.
With regard to the third paragraph — which has become paragraph 2 — is that a comment the committee needs to make?
Senator Dalphond: Thank you for your question, Senator Dupuis. I think that, as the Standing Senate Committee on Legal and Constitutional Affairs, we should perhaps point out that it is rather unusual to put an end to a legal proceeding through a legislative amendment. We are highlighting a situation and we have taken note of the issue. We saw that this was a possible consequence of the law and we took note of it.
Senator Dupuis: Senator Dalphond, clause 175 says precisely this:
175No action or other proceeding that is based on or is in respect of clause 16 of the contract referred to in subsection 174(1) lies or may be instituted or continued by anyone against Her Majesty . . .
That is what the bill says.
We are repeating it approximately in other words. Do we need to comment on it the way we comment on it here? That’s my question.
Senator Dalphond: Since this is perhaps a potentially divisive issue, in order to build consensus, I just highlighted it, to make sure that the committee mentions that this is a situation that some people might find anomalous. Personally, that is what I find surprising. However, I am not suggesting that the committee is concerned or has any concerns. Rather, I would like the committee to highlight this in a more neutral way.
[English]
The Chair: Senators, are there any more comments on what Senator Dalphond has suggested? If not, is there agreement to accept Senator Dalphond’s suggestion in addition to the observation?
Some Hon. Senators: Yes.
Senator Batters: As amended.
The Chair: Senator Batters, you have an addition to the one in front of us.
Senator Batters: I think this encapsulated well what happened in March as the Senate dealt with that particular motion. However, it ended by saying that the committee reported it back to the Senate and recommended that it adopt the motion. I thought the last sentence should be “the Senate did adopt the motion” on whatever the date was for adoption of that motion. That might be a helpful last part because it doesn’t really finish that off as to what happened with that recommendation.
The Chair: Senators, are you in agreement in accepting Senator Batters’ suggestion?
Senator Simons: I want to clarify that this is different than what we agreed to in the chamber in March.
Senator Batters: It is, but this observation is a matter of explanation to indicate what our committee already did, namely, the significant study of that constitutional amendment and motion.
Senator Simons: But it’s a different constitutional question, is it not?
Senator Batters: No.
Senator Simons: Do you know what I mean? The one that you studied in depth here and that we dealt with in the chamber was the amendment to the Saskatchewan Act.
Senator Batters: Yes.
Senator Simons: This is a different, parallel thing to deal with the federal government’s tax relationship, not the Saskatchewan government’s tax relationship. I realize I may be —
Senator Batters: Right.
Senator Simons: — wrong about this because I’m just visiting the committee today, but I wanted to clarify. It is my understanding that this is different. This is not to do with the Saskatchewan Act, but to do with the federal government’s liabilities.
Senator Batters: That’s right. Dealing with Saskatchewan and CPR, though, it’s still the same general subject matter. We already have an entire paragraph suggested as an observation, but it ends off “our committee reported this motion back to the Senate and recommended that we adopt that motion,” but it doesn’t say what happens with it.
Senator Simons: But it was a different motion, wasn’t it?
Senator Batters: Yes, but we have an entire paragraph here where we’re talking about it. We’re trying to explain to the Senate that we have dealt with this general subject matter in some considerable detail already. That’s why they’re setting out how many witnesses we had and the history of that particular part of it.
When we dealt with this as part of the Budget Implementation Act, it wasn’t the first we heard about this general subject matter. I think it adds some important context to it.
Given that Senator Dalphond has these other two paragraphs now in addition, which will go right after this part, I think that also adds some important context. Simply adding the one sentence saying that the Senate did adopt that motion is necessary for a fuller understanding.
Senator Simons: Perhaps I’m not looking in the right place. I’m looking at Senator Dalphond’s amendment, but are you looking back at the original report to add that sentence?
The Chair: In the original report.
Senator Simons: So you would add that sentence before Senator Dalphond’s —
Senator Batters: Because in the report it has that first paragraph that starts out “Observation 2, on March 1, 2022” — that whole part of it — and then Senator Dalphond’s part goes right after that.
[Translation]
Senator Dupuis: Can I ask that Senator Batters’ proposed addition be repeated, please? Thank you.
[English]
Senator Batters: I was just suggesting that at the end of observation 2, which was presented to us by the committee clerk and starts out with “On March 1, 2022, the Senate referred Motion No. 14 to the committee,” my proposal is that we add an additional sentence to the end of that paragraph that says “The Senate did adopt the motion on” — I don’t have the date in front of me on that particular day. That’s all I’m suggesting gets added.
Senator Simons is indicating that now makes sense. Thank you.
The Chair: Senators, are you agreeable?
Senator Dalphond: I agree with Senator Batters’ addition, because we’re trying to give a kind of factual background about the whole story. My only divergence will be to put my first and second paragraph first, because we deal with that. Then we should add that we considered the other aspect of it in March and it was adopted. I think that sends a message.
The Chair: Senator Batters, I’m going to have Senator Cotter speak and come back to you for your comment.
Senator Cotter: My suggestion was to try to achieve what Senator Dalphond just proposed, but I was going to suggest it in a slightly different way.
It seems to me there is a kind of historical progression here that is not absolutely clear in the way in which we have written these observations. My suggestion is rather than doing what Senator Dalphond suggests, we put in a sentence at the very beginning of the original observation — the one that presently starts “On March 1, 2022” — that reads something like, “Your committee has previously given consideration to issues related to the CPR tax exemption.” And then we provide this explanation, and then we provide Senator Dalphond’s observations as well.
Then it kind of tells the story. It locates the work that we have already done and then the work we’ve done this time around with respect to this amendment.
I could repeat that sentence if you thought it might be acceptable.
The Chair: Yes, why don’t you repeat it so everyone gets it.
Senator Cotter: This would go at the very beginning of the observation, even before that reference to March 1: “Your committee has previously given consideration to issues relating to . . .” — and then we might even choose the phrasing in the title, Canadian Pacific Railway (tax exemption). Or we could just write it as a sentence — the Canadian Pacific Railway tax exemption — and then continue on with what is in the observation above that goes with “On March 1, 2022,” continuing all the way through to Senator Batters’ concluding sentence, which completes that story. Then we tell the story that Senator Dalphond offers in his two paragraphs.
It seems to me someone reading this would then at least understand what we had been up to. It puts a few months’ worth of historical context into it and provides the answer to our observation about this tax amendment.
The Chair: Senators, is that agreeable to all of you? Do you want Senator Cotter to repeat it?
Some Hon. Senators: Agreed.
The Chair: Clerk, is everyone agreeing? I can’t quite see.
Mr. Palmer: Agreed in the room, yes.
The Chair: Thank you.
Senator Pate also has an addition.
Senator Pate: Yes, I think it has been circulated. Do I need to read it out?
The Chair: I don’t think so. Does anyone want it to be read out? I don’t see anyone wanting it to be read out.
Senator Pate: Do we need to go through the evidence?
The Chair: No.
Does everyone have Senator Pate’s proposal? Does everyone agree? Is everyone agreeing? I don’t hear an “agreed.”
Senator Pate: Agreed.
The Chair: Then we go to observation 3 on the Judges Act. I’m not aware that there were any more additions to this. Can the clerk correct me if there are?
Mr. Palmer: No additions, but Senator Batters has a comment.
Senator Batters: I have a couple of wording changes. In the second paragraph of this observation. Where it says “federally appointed judge positions across Canada,” I think it should say “judicial positions across Canada.”
Then there’s just a small typo change in the title of the report at the end of that particular paragraph — the second paragraph of observation 2. “Denying” should have a capital D. Other than that, it looks good to me.
The Chair: Senators, do you agree?
Senator Batters: Agreed.
The Chair: I don’t hear otherwise. Senators, do you agree with observation 3?
Hon. Senators: Agreed.
The Chair: Senators, are there any questions or comments on the third section dealing with Division 22? I don’t hear any. Senators, is it agreed to adopt the report, taking into consideration today’s deliberations, and to allow steering to approve the final version of the report?
Hon. Senators: Agreed.
The Chair: Everyone agrees? Senators, thank you very much. Thank you for all the help you have given and all the work.
Senators, you know that next week on Wednesday, we have a marathon. We are meeting at noon and at 4 p.m., and we have to finish Bill S-4 next week. If we don’t, we will sit next Friday to complete Bill S-4. Senators, this ends our meeting. Thank you very much.
May I please ask steering to stay behind?
(The committee adjourned.)