THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, May 4, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:30 a.m. [ET] to consider Bill C-9, An Act to amend the Judges Act, and to examine the subject matter of those elements contained in Divisions 30, 31, 34 and 39 of Part 4, and in Subdivision B of Division 3 of Part 4 of Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023.
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Before we begin, I would ask the senators to introduce themselves, starting on my right.
[English]
Senator D. Patterson: Dennis Patterson, senator from Nunavut.
Senator Jaffer: Mobina Jaffer from British Columbia. Welcome.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator, Laurentians, Quebec.
Senator Clement: Bernadette Clement, Ontario.
Senator Dalphond: Pierre Dalphond, senator for Quebec.
[English]
Senator Simons: Paula Simons, senator from Alberta, Treaty 6 territory.
[Translation]
The Deputy Chair: I am Pierre-Hugues Boisvenu, senator for Quebec and deputy chair of the committee. I am replacing Senator Cotter, who is held up at another committee.
As part of our consideration of Bill C-9, this morning we welcome Marc Giroux, Commissioner, Office of the Commissioner for Federal Judicial Affairs, and Jacqueline Corado, Director and General Counsel, Canadian Judicial Council.
It is an honour to welcome you to the committee.
You have the floor, Mr. Giroux.
Marc A. Giroux, Commissioner, Office of the Commissioner for Federal Judicial Affairs: Thank you, Mr. Chair.
We are pleased to join you again to answer your questions about the judicial conduct process in relation to your consideration of Bill C-9.
[English]
At our end, we have certainly kept an eye on your work, the witnesses you have received and the questions you have raised with them. We hope to be able to answer your questions today.
The last time we came, we talked to you about how important this bill was to the Canadian Judicial Council. The bill’s intent is to have more efficiency both in terms of cost and time in the judicial conduct process, and this is for the benefit of the public and for the judiciary.
[Translation]
We also discussed principles such as judicial independence, maintaining public trust in the judiciary — which includes the judicial conduct process — and transparency.
The judicial council also recently examined transparency issues at its last semi-annual meeting, which was held last week. The council met to determine how it can make improvements in that regard.
Moreover, at the council secretariat, we are very conscious of its primary role with respect to conduct, and we are preparing accordingly with respect to Bill C-9. We are working on modernized review procedures and are also preparing the staff who are assigned to matters of conduct at the small office of the Canadian Judicial Council.
We have added three new faces to the small secretariat team in the past week.
[English]
This being said, we understand that it may be useful — or we hope it will be useful — for you to learn more about how we do things now, prior to the adoption of Bill C-9, and provide some clarifications on how the process works.
[Translation]
That said, if you have no objection, Mr. Chair, I will now give the floor to my colleague, Ms. Corado.
Jacqueline Corado, Director and General Counsel, Canadian Judicial Council: Hello, everyone, and thank you for the invitation.
As you know, anyone who wishes to file a complaint about a federally-appointed judge may visit the Canadian Judicial Council website, fill out the related form and submit it to us. The complaint can be anonymous or complainants may identify themselves. It is not necessary to fill out the form: a person may also write to us to lodge a complaint without filling out the form.
The complaint is first reviewed by an administrative decision-maker at the council, who determines whether it is admissible.
[English]
Complaints may be rejected at that stage — the first stage of the process — if, for example, we don’t have the jurisdiction to review them, if they concern a retired or deceased judge or if the intent of the complaint is to appeal a decision. We also reject complaints at this stage when they’re frivolous, abusive, without merit or when they’re done for an improper purpose. If the complaint is rejected, the complainant receives a letter informing them of the decision and the reasons for it. The grand majority of complaints may be rejected at this stage every year.
The complaint may be elevated to the second stage in the process, and that means it goes to a member of the Judicial Conduct Committee within the council, who will analyze the complaint, investigate it, seek further information if necessary and determine whether the complaint warrants further consideration and should be sent to a review panel. If the complaint is rejected at the second stage, the complainant receives a letter informing them of the reason why it was rejected.
In the last year, we had 21 complaints that were examined by a member of the Judicial Conduct Committee. If the complaint is sent to a review panel, then our procedures provide that the complainant may be advised about this stage, and the review panel is now the third step in the process. It is formed by three chief justices, one puisne judge and one lay member.
The review panel will determine if the complaint is serious enough to warrant the removal of the judge and if it should go to a public inquiry. If the review panel closes the matter, however, they could express concern or make recommendations. The complainant is then advised by letter about the decision from the panel, and the reasons are provided.
So far in the last year, we have four complaints that have been assigned to three different review panels, and they are still ongoing.
If the complaint is sent to an inquiry committee, a public hearing will take place. The inquiry committee hears evidence and submissions from the lawyers that will present the case against the judge and from the judge himself or herself. The inquiry committee then prepares a report with a recommendation for the council’s consideration, and that recommendation and report will be provided to the judge so the judge can provide further submissions on the report. All of that will be submitted to the council at a stage where there will be deliberations, and at least 17 members of the council have to be present to consider the report, the recommendation and the reply from the judge. Again, at this stage, the complainant is advised of the decision and provided with a copy of the report.
While Bill C-9 will obviously bring about much-needed change, I hope the explanation of the current process assists you in your consideration of the bill.
Thank you.
[Translation]
The Deputy Chair: Thank you very much, Ms. Corado and Mr. Giroux.
[English]
Senator Dalphond: I know that you are each coming late, but I thank you for being able to come at short notice.
I’d like to pursue an issue that has been singled out — rightly so, I think — by many colleagues here around this table during their questioning of previous witnesses. I have two real questions. The first one is about transparency. I think in the annual reports and on the front page of the website of the council as it stands today — I checked it this morning — it says, “Fostering public confidence through increased transparency.” This is one of the first major principles that the council puts forward. I certainly agree with this. Public confidence rests on transparency and accountability.
My first question is about the fact that, over the years, the complaint process has been reported in the annual reports in less detail than it used to be. For example, I have here the 2013-14 annual report. That is where Chief Justice McLachlin explained that they are consulting the stakeholders and the public about the ways to improve the conduct process. That report has 32 pages, and about 25 pages are about the conduct process.
We have the number of complaints received, the number of files open and the number of them that went on before the review committee. There are three pages about the numbers. On top of that, we have sections summarizing what is called “Sample of complaints received by the council.” That goes on for another 10 to 12 pages.
I move to the next report that I selected in my random selection — 2017-18. That’s a much shorter report, about five or six pages, but there’s a full two pages about the caseload, the number of cases and complaints received, the files opened, the mandate letters to lawyers to investigate further to provide information to the review committee, irrelevant complaints, requested reconsiderations and even the number of phone calls received. It says 1,000 phone calls received, five per day, inquiring about the process.
It goes on to say that the requests for information have increased, there are more complaints from self-represented litigants and there are many complaints related to a new process called “the settlement conferences” that were beginning, more or less, at the time.
I look at the most recent report, the fiftieth year celebration report, and in it we have information about what the council does, who the members of the council are and how they do their work.
When we come to judicial conduct, we find only one paragraph where we have a certain amount of information about complaints — how many files were opened, how many were closed, how many were examined through a member of the review committee — it says 18 that year. You said 21 today.
Will the council consider that the time has come to revert to the old practices and provide more information, as it used to do, about the number of files opened, the number of complaints received and the treatment of them?
You said in your testimony that there were 21 complaints that were examined by a member of the review panel. This is even less than the Ontario judicial report. That includes about 20 to 25 summaries of the cases that they have reviewed.
Would it be possible for the council to move in the same direction and to revert to the old practices and provide more transparency? This is my first question, and I have another one afterward.
[Translation]
The Deputy Chair: Senator Dalphond, you took 4.5 minutes for your question. Technically, that leaves you 30 seconds, so I would ask you to keep your questions brief to give our witnesses time to answer.
Mr. Giroux: Thank you, Mr. Deputy Chair. As chair of the council, the Chief Justice places a great deal of emphasis on transparency. Last week, the council considered how to improve transparency on matters of conduct. The secretariat council can do better and provide more information. You talked about returning to the old practice: We can do better and obtain data that is consistent from year to year.
In looking over the reports myself, I noted that the complaints were put into different categories from year to year. I think we need greater consistency, with categories that remain constant every year, essentially in order to better inform the public in this regard. We are in the process of considering how to go about this.
[English]
Senator Batters: Thank you very much for being here today. Mr. Giroux, since you last appeared here on Bill C-9, there have been developments and more concerns raised by witnesses. More support has been expressed for the issue raised by The Advocates’ Society, the right to appeal a final decision of the Canadian Judicial Council to the Federal Court of Appeal. Even the Canadian Bar Association stressed the importance of this amendment, noting that, although at first blush this would seem to add delay, the process overall remains much more efficient.
The CBA president provided two important reasons:
First, as a matter of natural justice, it ensures there’s external oversight to the process. . . .
Second, the judiciary is such a vital part of Canada’s governance that the public must be assured that judicial discipline is carried out in an open and accountable manner, with clear avenues of appeal and redress. . . .
Another benefit of a wider right of appeal is that the Federal Court of Appeal is likely to issue detailed reasons . . . . The aggrieved judge and the public will know why an independent court came to its conclusion, enhancing the CJC’s credibility through the transparent review of its process and decision-making.
Given the support for this amendment in the legal community, how do you respond?
Mr. Giroux: Thank you, senator. I’ll provide a few comments and then turn to my colleague for additional comments. The bill’s intent, as discussed earlier, was to reduce delays in cost and time. As it stands, establishing a right of appeal sets us back in that it takes more time, more money and more legal fees that are paid out, and, at the same time, if the recourse were established for the Federal Court of Appeal, we would have essentially three judges considering a decision taken by five people.
I would argue that the position of the council is to leave the bill as-is, with a lot of guarantees for judges who are the subject of complaints as it stands now.
Senator Batters: We’ve also heard repeatedly about the importance of a layperson at each stage of the process. Professor Richard Devlin stressed that, and the Ontario Judicial Council acknowledged the critical importance of that in their process.
Professor Devlin stated that the values of impartiality, independence and representation are compromised without sufficient lay representation. Would you support an amendment to that effect?
Mr. Giroux: On that front, obviously there is more room for lay members under this bill than with the current process we have in place. The lay members bring a valuable perspective to the process, as we see with our current review panels.
The balance that is established in the bill is correct and just. In our system, we have the third branch of the government, the judiciary, which is entrusted with interpreting laws and, according to legislation, jurisprudence, and, in this case, we have those members included with some lay members at two stages. I would suggest that is the correct balance.
Senator Batters: So you don’t support including laypeople at other stages?
Mr. Giroux: I would argue that, at those two stages, it is the correct place to go.
Ms. Corado: If I may, considering this is an administrative law process — and you won’t find a lot of laypersons on other administrative tribunals, for example — Bill C-9 already provides — and I would say at the most important stages of the process, within the full hearing panel — two opportunities for laypersons to be part of the process. That is more than any other administrative tribunal provides.
I would not think it’s necessary at every stage because you don’t see it anywhere else within an administrative tribunal, not at the screening stages, and not at others.
Senator Batters: At the council, they do have that at their other levels, which is much more akin to what this process is, rather than just comparing it to different administrative tribunals.
Ms. Corado: I understand that. I don’t fully know their process, and I’ll be completely honest about that, but within this process, there are five stages, and two of those stages — the most important ones — provide for a layperson. That’s very representative. It adds that very valuable perspective from a layperson. We absolutely want to have that view.
[Translation]
The Deputy Chair: My apologies to senators. I misspoke earlier when I said that you have five minutes, not for your answers, but for your questions.
[English]
Senator Jaffer: To follow up on what Senator Batters was saying about laypersons, what we hear is that laypersons don’t feel there’s transparency, fairness and reasoned justification. First of all, compared to before, there are more laypersons coming, and there is a perception that the courts have had to adjust to looking after laypersons. Do you have any way to give them — not special treatment in the reasoning — some help through the process? Do you have anything like that?
Ms. Corado: I believe you’re asking if we have anything to accommodate a layperson in the process. They are part of the full panel. Right now, a layperson will be assigned to a review panel, and they participate in every decision that is made within the panel. They are a full, working member of that panel.
Within Bill C-9, we would have them at two stages, and again, they would be full members of that panel. I guess it’s important to consider that, for a full hearing, there’s going to be one layperson there, again, being part of that decision-making process.
So laypeople are provided not only with the opportunity to be there but to be part of that decision making. With the final decisions that come at the review stage, under Bill C-9, there could be additional actions taken by a review panel, and a layperson will be among the decision makers that will be there.
Senator Jaffer: Neither of you are strangers to this committee, and I’m sure you were following the hearings. You may have heard Professor Devlin give a critique of what could be done, especially around education, say, if a judge is not following it. We have all these fancy things we want judges to do, but if they’re not following it — you read what professor Devlin was saying. Can you comment on that?
Mr. Giroux: As you will know, the council has established some criteria for newly appointed judges to receive training and also for judges who are not newly appointed to devote at least 10 days a year to their continuing professional development.
In the event that a judge does not follow what is being recommended or encouraged, obviously anyone, but perhaps mostly the Chief Justice, would be in a good position to speak to the judge, probably in the first instance. If the judge still does not abide by receiving the education, then there certainly would be grounds for the Chief Justice to make a complaint to the council against that judge — as it would be to anyone, but, obviously, the Chief Justice would probably know better than anyone whether or not the judge has undergone the training.
Senator Jaffer: Thank you.
Senator Simons: I wanted to follow up quickly on Senator Dalphond’s question to give you a little bit more time to answer. As a former journalist myself, I’m a big lover of data, especially disaggregated data, and it’s very important that you are comparing apples to apples year over year. If you change the metric, there’s no way to make a comparison. I wanted to ask you first about that.
I have a second question. We’re seeing played out for us in real time every day more and more allegations of misconduct and ethical violations by members of the U.S. Supreme Court, which has set itself completely apart and said that it doesn’t need an ethical code and that nobody can review it. Meanwhile, here in Canada, we have a situation where one of our Supreme Court justices is subject to a conduct review. I wondered if you could talk a little bit generally about how the cultures of the two countries are different and why you think it’s important that we do hold our judges accountable in this way.
Mr. Giroux: I can start, senator, and I may defer to my colleague.
With regard to your first comment, I fully agree with you that the metric needs to be consistent from time to time in providing the data. Not doing that does not serve anyone well. It does not serve the public well, and it does not serve us well when coming to appear before you.
I don’t know that I would be an expert in the conduct of judges in the Supreme Court. In Canada, obviously, there are ethical principles for judges that have been adopted by the council, which was part of a wide consultation and included a number of people in its final publication. Obviously, judges should take note of these ethical principles. Not abiding by them is not to the advantage of the judge, of course, if they are the subject of a complaint.
I can’t speak to the specific matter that you raised — I know you understand that — but I would simply suggest that a judge who is the subject of a complaint should certainly take more than a quick look at the ethical principles to see whether they have abided by them.
On a separate front, what exists as well for judges is that if a judge is facing a challenge and is wondering what to do, they cannot come to the council and ask Ms. Corado, for example, what they should do in this situation. We do not provide that advice. However, the judge can turn to an ethics committee, which does exist and is formed of puisne judges. They have a database of opinions rendered in the past, and the judge could say, “I find myself in this situation. What should I be doing? Can I do this or can I not do this?” Although the ethics committee’s recommendations, if you will, are not binding upon the council, they are certainly helpful. The council may well take note of whether a judge has considered those if there’s a complaint raised against them.
Senator Simons: In the American instance, Justice Roberts of the U.S. Supreme Court has argued that it would be an infringement on the independence and integrity of the court to have anyone provide any kind of discipline. Here in Canada, we seem to have opted for a different route. Without asking you to cast judgment on the U.S. Supreme Court, do you think we have a better model?
Mr. Giroux: I would respectfully suggest that, for one thing, we do have ethical principles for judges in Canada, which is different than in the U.S. My office does some international work — judicial reform — in other countries, and what I can say is that Canada’s judiciary is extremely well respected throughout the world. This is not just a line. It’s really sincere when we visit other countries. It’s not perfect, and there are issues to be considered that are sometimes high in profile, but, generally, Canada’s judiciary is very well respected.
I don’t know if that answers your question, or if I’m skirting away from the comment on the U.S.
Senator Simons: You skirted it with great elegance.
Ms. Corado: In Canada, we have section 99 of the Constitution that provides that judges have the security of tenure on their good behaviour, if I can put it that way. This is where we come into play. So without knowing more about what is going on with our neighbours down south or how their constitution works, here in Canada, it’s in our Constitution.
This is where the Canadian Judicial Council comes into play. We are the organization that looks into it and decides what the matter of misconduct was and whether section 99 of the Constitution has been breached for the purpose of a judge remaining on the bench.
Senator Simons: Thank you very much.
[Translation]
Senator Dupuis: I want to welcome the witnesses. I will begin with a question for the commissioner for judicial affairs. You mentioned a recent council meeting, the one referred to in the press release of April 26, 2023. It was the annual spring meeting.
I was struck by what you said about the council’s emphasis on transparency. Three items are highlighted in this press release: the pressure on democratic institutions, the high number of judicial vacancies across the country, and the health of judges. Of these three items, two pertain exclusively to the judiciary: the working methods and working conditions of judges — which is a very important issue indeed.
I am wondering about the evidence of transparency in the system itself. Without disaggregated data, if the data is not consistent from year to year, if complainants are not notified of decisions at every stage and if the door is not opened to general participation by non-jurists, how can we believe that the need for transparency, which is not reflected in the current system, is considered and will be considered in the future?
Mr. Giroux: I think my colleague has something to say. I might add something after.
Ms. Corado: As to transparency, the council’s annual report indicates that there were probably some differences from year to year in the way complaints were reported. The council was not required to do that. It is something we did voluntarily, and we want to do it better.
We are truly delighted that this is included in Bill C-9. It will be an improvement. We have already started to consider how we can produce reports with greater transparency and consistency, so the same categories are used from year to year.
As to the decisions, the complainants are notified. I heard some witnesses say that this was not the case. I can confirm that a letter is sent to the complainant to explain the reasons for the decision, regardless of the stage in the process. That is already being done and will still be done under Bill C-9.
Senator Dupuis: The council does this on a voluntary basis, even though it is not required to do so.
Ms. Corado: Precisely. The complainant receives a decision with respect to any complaint.
Senator Dupuis: I have another question on this topic.
We received information that this bill is the result of discussions between the Canadian Judicial Council and the Canadian Superior Court Judges Association. It is the kind of bill that was preceded by a lot of consultations, and a consensus emerged around the bill we are considering. Since the committee began its consideration, we have received notice from the Canadian Superior Court Judges Association that this consensus is no longer valid.
What is the council’s position? Has the council taken a position on Bill C-9, knowing that there is no longer a consensus?
Mr. Giroux: You know that Ms. Corado and I appeared before a House of Commons committee. The association sent the committee a letter. We then appeared before the committee. The association also sent you a letter.
The letter stated that, in one respect, the association’s initial position was a right to appeal. The council then replied to the association’s letter through a letter from Ms. Corado. I think the letter speaks for itself.
In spite of everything, I am inclined to believe that the consultations were very beneficial. Even if certain compromises were made during the consultations and discussions about Bill C-47 with justice department officials, the judiciary as a whole would like to see it passed.
Senator Dupuis: What is the cost of the current system?
Let’s say I am a judge and there is a complaint against me. I go to the Supreme Court, and at the time of the hearing, I resign.
I expect you have determined the costs and that the council might be able to provide us some information about that. That is a very important aspect of Bill C-47.
Mr. Giroux: The council’s budget is very limited. We have a small team of 10 people and receive funding every year from the judicial conduct budget. We have not received that funding this year, I assume because Bill C-9 is before you. Essentially, I am not sure I can determine the cost for conduct as a whole. In certain cases, such as the Justice Girouard case, which lasted about seven years, the costs were over $5 million. That includes the legal fees for the judge in question, other legal fees, the people employed by the council for the process, room rentals, and so forth. The costs were quite high in that case.
Senator Dupuis: Thank you.
[English]
Senator Clement: Good morning. Thank you for being here.
I believe committee members have received the amendments to Bill C-9 that I have shared with you both this morning. There are three areas: one is replacing “sexual harassment” with “sexual misconduct.” Those are more modern terms.
The next one is in section 84, and would remove “as far as possible,” because I don’t think that that sends a terrific message to Canadian society — or to the legal profession, in fact — that we are going to try and bring diversity as far as possible, maybe, if we can. A stronger message should be sent there, and we can talk about how that is to be respected.
The third thing is transparency. I will start there because I may not have time to get through everything. In light of the decline of information in the annual general report — and I heard you say that you were committed to doing better there — I went ahead and looked at the amendments from the perspective of the three levels where you have a complaint go through: the screening officer, reviewing member and review panel.
The transparency piece that is of concern to me is the release of that information to the public. Yes, we release it to the complainant, but, to me, it would be more important to go further and release reasons and data to the public at all three levels.
Basically, sections 103, 90, 91 and 94 would have similar language where there would be a release of reasons for dismissal of a complaint or the outcome of a complaint to the public at each level.
I would appreciate your comments on that.
Ms. Corado: In that sense, there is the Slansky decision from the Federal Court of Appeal, which talks about the confidentiality of the process and why that is done at the first stages.
Senator Clement: Confidentiality would be maintained in terms of these amendments. It is to release the outcome and then protect personal information.
Ms. Corado: Protecting personal information would be important too. I haven’t fully taken a look at the amendments; we just got them.
Senator Clement: That is fair.
Ms. Corado: If I understand correctly, it wouldn’t be about making a decision public, but we already do that.
It is something that is in discussions of how we are going to do it when Bill C-9 comes into effect. There are examples provided on the website of the types of complaints we deal with without any personal identification; it is more of a summary of what the allegation was and how it was dealt with.
The council has been doing that. It is already on our website.
Senator Clement: Do you do that on a voluntary basis?
Ms. Corado: Yes, on a voluntary basis. We could continue to do that without releasing anything that would be detrimental or respecting the Federal Court of Appeal with the decision in Slansky.
What you are proposing is to codify a practice that we are already doing, but we do have a commitment to do it. It is being done on a voluntary basis and it is going to continue to be done within those parameters from the Federal Court of Appeal. That will be important to make sure that is already respected.
There are a lot of complaints that the council receives that are frivolous, and, therefore, you wouldn’t want to call attention to a frivolous complaint and muddy the waters or create some kind of wrong perception about the judge, especially if the complaint is without merit.
It is something we can continue to do and would be very important to continue to do for the public, to give an example of what we do — this is the type of complaint; this is how it was dismissed — without any personal information.
We are committed to continuing to do that and publish them on our website.
Mr. Giroux: At first glance, I don’t see any issue with the first two amendments that you proposed.
To pick up on what Ms. Corado said, the Slansky decision essentially establishes that it’s up to the council to determine what should be disclosed and in doing so the council should take into consideration competing principles. One is transparency and public interest, which I see is an objective of yours and is an objective of the council. The others are judicial independence and the privacy of the judge.
On that point, the only caution we would have, as Ms. Corado has said, is that we receive a lot of frivolous complaints. Some people, for whatever their reason may be, may have it out for the judge who ruled in a certain matter. We have to consider those principles to ensure that the reputation of a judge is not tarnished by the publication of information that, at the end of the day, may be a frivolous allegation.
Senator Clement: I understand that. I am a member of the Law Society of Ontario. I understand there are complaints. You might lose a case and people are angry and there is a process. But, Ms. Corado, you mentioned the trust issue and the fact that there has been a decline in the annual general report. Those are factors that we need to take into consideration.
[Translation]
Ms. Corado: This process is ongoing; we will continue to publish. Although there may have been a change recently — which might be related to certain changes at the council or in council leadership —, we will continue doing what we are already doing and we intend to make improvements.
[English]
Senator D. Patterson: Thank you for being here.
You can tell me if my analysis is correct. I want to talk about the flexibility in the range of penalties.
As I understand it, at the review panel stage there is a range of measures: private or public warning, apology, reprimand and other actions, some with the consent of the judge. However, when you get to the panel stage, it seems that it is more drastic — that is, either removal of the judge from office or not.
We have had some evidence that it would be ideal to have more flexibility in penalties at the panel stage. In particular, I believe it was suggested by some witnesses that there could be options such as suspension with or without pay, which is fairly common in disciplinary proceedings generally.
Do you have any comments or can you share some concerns that have been expressed that at the review panel stage there should be more flexibility in penalties?
Mr. Giroux: We heard the debates, senator. We heard some of the answers that were provided to you regarding suspension of judges.
On a practical level, suspension with remuneration already occurs in that a Chief Justice who has a judge who is the subject of a complaint that is deemed to be serious can take steps to not assign that judge to hear matters until the complaint is resolved by the council or upon receiving more information about the complaint.
Obviously, this is not done at the council level now. Certainly, there is discretion for the Chief Justice to do that and we can advise that it is done. In the case of serious matters, it is done regularly.
I do not know that I would speak further to the answer that was given already by Department of Justice officials. I know that some of you had comments about that answer, but you are correct that at the full hearing the penalty is the one of removal only.
On a practical level, that is being done now. To give that prerogative to the council might be problematic.
Senator D. Patterson: Thank you for that answer. When the Chief Justice doesn’t assign a judge, it’s an internal decision that may or may not be known to the public.
Would you clarify that suspension without pay is missing from the review panel options or those available to the judicial council, which would seem to be another bit of flexibility nuanced short of removal?
Mr. Giroux: Perhaps you have comments that you would like to add, Ms. Corado.
Ms. Corado: To clarify, in talking about suspension, and to add to what Mr. Giroux was saying, when it comes to a Chief Justice, the Supreme Court has recognized that it is within the powers of the Chief Justice to assign cases and to give a workload to a judge. That is part of that judicial independence. It would be up to the Chief Justice to see how the court is being managed and what cases could be assigned to a judge who is under a complaint review.
The council does not have that power. We are not really on the ground, if I can put it that way, to know exactly the strengths and weaknesses of that judge or how it could be better served by that judge being on suspension. It does happen, but it is not within the purview of the council. As per the Supreme Court, that role is assigned to the Chief Justice.
Senator D. Patterson: Are you saying that suspension without pay does happen?
Ms. Corado: Suspension with pay, to my knowledge.
Senator D. Patterson: I am asking about without pay.
Ms. Corado: That has not been explored.
Senator D. Patterson: Thank you.
Senator Klyne: Welcome to the witnesses.
My question is aimed at Ms. Corado, but I invite Commissioner Giroux to offer his thoughts as well.
In your opening remarks, you mentioned that Bill C-9 offers much-needed change. I assume that is in the context of improvements in the transparency and accountability of the judicial conduct process. In that regard, it would effectively be addressing delays, reducing delays, increasing confidence in the administration of justice and controlling excessive or unnecessary costs in the judicial conduct process.
With respect to that, and to other considerations overall, are there any recommendations or observations for this committee regarding making this a better bill? Is there something that could be done better or improved upon, or something that has been missed and should be included?
I have heard some comments in your answers to Senator Clement and Senator Patterson, but are there other things that you would like to share with the committee?
Ms. Corado: I think I said in my first appearance how this bill will improve the efficiency and the costs that are related to the process. First, a number of consultations, agreements and compromises were made. It does improve the process greatly. It will significantly reduce the costs involved.
When we hear about proposed amendments, for example, for an appeal mechanism outside the council, that would definitely be contrary to the purpose of the bill. It would render everything longer. It would just put us back at the first stage, where we are now, as Mr. Giroux mentioned, where one of the cases took about seven years to go through. This bill is proposing to fix and to remedy all the costly bills involved in this process.
I could not suggest anything to add to improve it. I believe the way it is, as it was proposed by the council and tabled before Parliament, it meets the needs of what is trying to be accomplished.
Regarding any other amendment that could be done, for example, with all due respect, about the reporting and all, it is something that we already committed to do and that we’re more than willing to do because we are committed to transparency.
All of the things that we are hearing, we are glad to hear all those comments because it allows us to grow and to improve how we can do things better.
Senator Klyne: Commissioner Giroux, do you have anything to add?
Mr. Giroux: I think that Ms. Corado has said it all. As you were told, there have been multiple consultations on this bill. There have been compromises between the different organizations representing the judiciary.
At the end of the day, despite some slight differences, I think everyone wants to see a process that is better than what we have had and that is seen to be better as well, and that Canadians will look upon and, hopefully, see that things are being done more quickly and it is costing less money. I think that’s the whole point.
Senator Klyne: Thank you.
[Translation]
The Deputy Chair: There are eight minutes left, so I will give the time to just two senators, the sponsor and the spokesperson. Senator Dalphond, you have four minutes.
[English]
Senator Dalphond: It’s interesting. Today, we have before us Mr. Giroux, who is the Commissioner for Federal Judicial Affairs and he is also the acting director of the council for the time being.
I am going to ask you this, because you have special expertise on the question that I am going to put: When we have applicants for judicial office, they have to complete a form. It is a long form. They have to explain what they would bring and everything else. They are also invited, if they want, to disclose many things: their gender, whether it be male, female or other; ethnic culture; their diversity — there is a question about whether you are Indigenous, a visible minority, person with disabilities, LGBTQ membership, et cetera; there are also questions about language proficiency.
Of course, I understand that it is a self-declaration, but would it be possible to include that in the complaint form that you make available to the public — maybe some people will say, “No, I do not want to say that” — and offer the options to the complainant to also check the box below to make self-declarations about other items like for applicants to judicial appointments.
Mr. Giroux: Thank you, senator. You are correct that, since 2016, the form for judicial applicants is different, and it was even revised recently. But essentially you are correct in that applicants may choose to identify themselves or not under various categories. In the commissioner’s office, we also publish statistics on the number of applicants that identify as to one category or another.
I do not see that this would be difficult to do in the form that we have for complaints against judges. Again, taking into account the fact that it is self-identification, people may have a different view as to whether they want to self-identify when making a complaint as compared to applying for the bench, for example, but that is something relatively easy to do. Thanks.
Senator Batters: Thank you. Mr. Giroux, with respect to your comments to Senator Patterson about the suspension-with-pay option to say that the Chief Justice of different jurisdictions already does this regularly — this already occurs regularly is what you said because they are not assigning cases to such judges, perhaps — I think you might want to tell the justice minister and his officials about that because when we had the Justice Department officials in, I asked them about that availability; why wasn’t a suspension or docking of pay included as an option here? The official stated that if the misconduct was so serious that suspension or docking of pay would be considered, then that misconduct would be in the realm of removal and that is why it wasn’t included.
Also, that is far from a transparent process. The public would, of course, never know about such internal administration of assigning a judge on that or not assigning one.
With respect to the docking of pay or suspension of pay as a potential penalty, we also had the opportunity to ask the Ontario Judicial Council about why Ontario does have that included in one of their lists of options. Alison Warner of the Ontario Judicial Council provided examples, actually, of when serious misconduct met the level of suspension without pay and yet they determined that removal was not appropriate. She said:
What the hearing panels in both cases were grappling with was serious misconduct, but on the other hand, the judges in both cases had exhibited remorse, insight, acknowledgment. They had filed many letters of support, not only from judges, but from lawyers and members of the public. They had gone through some remedial training and ethical training.
In light of those mitigating factors, the panel was weighing whether it is a recommendation for removal or a 30-day suspension without pay. They felt that in light of, as I say, the mitigating factors, a recommendation for removal would be unwarranted, and they combined the suspension with pay with a couple of the lesser sanctions. For example, a reprimand and apologies in one case. They felt that that would serve as a sharp rebuke for the conduct, but it would, as I say, take into consideration these mitigating circumstances.
So given that it has worked well not just in Ontario but in other jurisdictions too, wouldn’t you think that it would be an appropriate way to have a more robust disciplinary sanction system and support an amendment to add that option to our Judges Act?
Mr. Giroux: Thank you, senator. As we mentioned, there were a lot of consultations that led to the bill between the judiciary and the Department of Justice. I was not part of those consultations. I can’t speak to whether this was discussed or not. I did read the comments that were made to you by Department of Justice officials, and I did read your reply as well.
I don’t know that I can offer many comments on this. I have also read what they do in Ontario. I understand it has occurred limited times since they have had the process in place.
There is jurisprudence as well that speaks to judicial independence of judges, including financial independence. I’m not sure how that would impact any amendment —
Senator Batters: We have not heard that from either the Department of Justice officials or from the Ontario Judicial Council that that is a problem with either one of those, and so I do not expect that it was.
Mr. Giroux: There is a reference to P.E.I. that was ruled upon by the Supreme Court many years ago. Some of you may be more familiar with its contents. But it does speak to the three components of judicial independence, which includes financial independence and at least a federally appointed judge serving until removed by the Governor-in-Council.
I am not sure of the impact of all of this. I can’t offer you an opinion on this. But again, I come back to my earlier comments that at the chief justice level — not at the council level, you are quite correct — there is that discretion upon chief justices to determine that, for the integrity of their court in a certain situation where one of their judges is the subject of a complaint, it is better to perhaps not assign matters to that judge until the matter is clarified or resolved. So that does occur at the current time, with pay, of course.
Senator Batters: And with no transparency and the public would never know about it. Thank you.
[Translation]
The Deputy Chair: I have a question. I was surprised by something Professor Devlin said: He said that Bill C-9 would create an imbalance between complainants and the judges involved, particularly with regard to appeals. Do you think what Professor Devlin said is accurate?
Ms. Corado: Can you repeat that?
The Deputy Chair: He said that, in Bill C-9, it appears that complainants and judges do not have the same rights, particularly as to appeals. It appears that complainants do not have a right to appeal, whereas judges do. He said this created an imbalance.
Ms. Corado: Yes, in fact, the complainant is not part of the process. It is a comparison that I do not like to make, but in criminal cases, for instance, there is the Crown and the defendant. In a disciplinary matter, by comparison, it is not like a civil trial, with applicants and defendants. In this context, when a complaint arrives, a client may withdraw their complaint, but if the council determines that the complaint is founded, we will proceed. The complainant is not really part of the process.
This means that, in the case of an appeal, the prosecutors who are responsible for making the case against the judge decide that an appeal is warranted.
We must not lose sight of this: We are not really talking about a right of the complainant. The purpose of the process is really to seek the truth. This is what we are doing with section 99 of the Constitution Act, 1867. We want to see if this section is being upheld.
Returning to the issue of judges’ compensation, section 99 does not apply to matters before provincial councils. It is not in the Constitution, as it is for federal court judges. Before this is considered, we also have to ask how it might affect the Constitution and section 99.
The Deputy Chair: Thank you very much for that information, Mr. Giroux and Ms. Corado. Thank you for joining us on short notice this morning.
I hope that information will be helpful to everyone around the table. We wish you a good day.
Let us continue with the second witness panel, to consider section 34 of the budget.
From the Department of Finance Canada, we welcome Mark Radley, Acting Director, Consumer Affairs, and Tanjana Islam, Analyst and Economist.
From the Department of Justice Canada, we welcome Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, and Kenyatta Hawthorne, Counsel, Criminal Law Policy Section.
You have five minutes each for your opening remarks, to be followed by a question period. We will begin with Mr. Radley.
[English]
Mark Radley, Acting Director, Consumer Affairs, Department of Finance Canada: Good afternoon, senators. It’s a privilege to be here to speak to you today about Division 34 of Part 4 of Bill C-47, the budget implementation act.
Predatory lenders can take advantage of some of the most vulnerable people in Canada, including low-income Canadians, newcomers and seniors, often by extending very high‑interest‑rate loans. The current criminal rate of interest under the Criminal Code is 60% on an effective annual rate, or EAR, basis, which is equivalent to approximately 47% on an annualized percentage rate, or APR, basis, and those rates can trap Canadians in a cycle of debt that they cannot afford and cannot escape.
That is why Budget 2023 announced the government’s intention to introduce changes to the Criminal Code to lower the criminal rate of interest from the equivalent of 47% on an APR basis to 35%.
Payday loans are currently exempt from the criminal rate of interest provisions in the Criminal Code in designated provinces. Budget 2023 also announced the government’s intention to adjust the Criminal Code’s payday lending exemption to require payday lenders to charge no more than $14 per $100 borrowed. This cap is in line with among the lowest cap among the provinces, in Newfoundland and Labrador, today.
Finally, the government also announced in Budget 2023 its intention to launch consultations on lowering the criminal rate of interest even further, as well as on additional revisions to the Criminal Code’s payday lending exemption.
As part of the budget process, the department conducted a gender-based analysis. Data from the Financial Consumer Agency of Canada, or FCAC, suggests that Indigenous people, recent immigrants, low-income Canadians and women are more likely to rely on these high-cost loans to cover day-to-day expenses. Those groups and others may benefit the most from this measure to the extent that they will no longer face such high-cost loans.
I’m here to respond to any questions you may have on Division 34 of Part 4 of the budget implementation act. These amendments to the Criminal Code would lower the criminal rate to 35% APR, as I mentioned. A regulation-making authority is also introduced to allow for certain types of loans, such as commercial loans, potentially, to be exempt from the criminal rate.
Division 34 of Part 4 also introduces a new regulation-making authority to allow a limit to be placed on what payday lenders may charge to borrowers. As I noted, the government intends to cap payday loans in these regulations in line with the lowest provincial limit at $14 per $100 borrowed. To ensure adequate time for businesses to adjust their operations, these proposed amendments will be brought into force on a day or days set by the Governor-in-Council rather than upon Royal Assent. Furthermore, any loan agreement signed prior to the effective date of the new criminal rate would not be captured by the new rate.
These measures follow consultations held by the Department of Finance in 2022. Through this consultation on fighting predatory lending, the department received over 100 high-quality submissions from a broad range of stakeholders, including industry, consumer advocates and provincial governments. Consumer advocacy groups were all in support of lowering the criminal rate, with the consensus suggestion of 35% APR.
By lowering the criminal rate of interest, Canadians who use high-cost credit products will face lower interest charges. A lower cost of borrowing could mean many Canadians have more money to pay off other debts, and it will reduce the number of Canadians trapped in a cycle of debt.
I look forward to your questions.
[Translation]
The Deputy Chair: Mr. Taylor and Ms. Islam, do you have an introductory statement?
Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice Canada: We do not have any remarks to make. We are here to support our colleagues and to answer your questions.
The Deputy Chair: Mr. Hawthorne, do you have an introductory statement?
[English]
Kenyatta Hawthorne, Counsel, Criminal Law Policy Section Department of Justice Canada: Yes, it’s the same for us as well. We are here to support our colleagues.
[Translation]
The Deputy Chair: I should have said that at the outset. Thank you also for being with us this morning to provide details about the budget.
[English]
Senator Dalphond: Can you explain the reason for moving from an annual effective rate to an annual percentage rate? I know the first one was difficult to establish in a court of law. You needed an actuary to come along and provide complicated evidence. So is that going to be easier to do now? I still see a reference to actuaries.
Mr. Radley: I’ll start off by giving a bit of the rationale for the change and then turn to my colleague to discuss the legal aspect.
APR is a commonly used rate in the industry. Most credit products are publicized and marketed on an APR basis. Further, there are other regulations where the government has used the APR basis. So for clarity and consistency in the marketplace, we think APR will make a lot of sense for consumers to understand what the changes are.
Mr. Taylor: To the extent that the existing terminology has proven challenging from an enforcement perspective, you may know that there haven’t been a lot of charges and prosecutions under section 347 of the Criminal Code. The changes that Mr. Radley has discussed will assist in that respect, and we can help support the rollout, if the legislation were to be enacted, to support our provincial and territorial partners to understand the effect of the changes and how to go about investigating and prosecuting.
Senator Dalphond: Is it going to make things easier to prove?
Mr. Taylor: This is a scenario that’s less familiar to me in terms of the economic aspects, but to the extent that it is a well-understood concept, I think that it would assist.
Senator Dalphond: When you said you had a lot of consultations to arrive at 35% instead of 30% or 37%, does that include the financial institutions, the stakeholders and all those involved in that, as well as lending and borrowing?
Mr. Radley: The consultations were broad. We consulted financial institutions, alternative lenders and consumer advocacy groups. The consumer advocacy groups were generally more in favour of the lowering of the criminal rate of interest, where industry stakeholders were less enthusiastic about that. As I said, most of the consumer advocacy groups mentioned 35%.
One other important point of context as well is that the Province of Quebec has a limit of 35% on an APR basis. It’s something that consumers and the industry in Quebec are very familiar with. So there’s an element of harmonization, then, when we are implementing that 35% cap.
Senator Simons: I live just off a street in Edmonton that at one time was full of small bank branches, and as the bank branches closed, they were replaced by these payday loan companies. It’s obvious that they are fulfilling a market niche, which is very distressing. I’m delighted that we’re going to be lowering rates, but I am concerned about what I’ve been reading about the seeming shift of predatory companies to high-interest instalment loans instead of the conventional payday loans.
Do you think these changes will have an impact on that, or is this a first step to other things we need to do to make sure that people of small means can get credit and get it fairly, and make sure that we aren’t just moving the model to something else just as exploitative?
Mr. Radley: The first thing I would say there is that’s why the government is taking the two-pronged approach in terms of lowering the criminal rate of interest as well as introducing the cap on payday lending. There is definitely that element of taking a more comprehensive look.
Whether or not there are additional actions that the government can take, we’re undertaking policy development. I don’t have anything to share at this point, but it certainly is an issue that is on our minds in that they are fulfilling a need that other financial institutions are not currently fulfilling.
Senator Simons: I think it was the science fiction writer Terry Pratchett who said that it was expensive to be poor.
When I needed to renovate my bathroom, I went to the bank. They said, “Here, take some money.” I said, “I don’t need that much money,” and the bank said, “Oh, no. Take some more money. We want to give you a line of credit as big as the sky.” But when I was young and actually needed money, it was much harder to get.
It seems to me we’ve created a situation in which we’ve allowed the banks to consolidate. They don’t have neighbourhood branches. Even people who may not be very poor can’t get to a bigger branch, or if they’re elderly, they might not know how online banking works.
It seems to me that there is a danger that if you choke off this one predatory instrument, people will have a need to get money that the chartered banks are not fulfilling.
Mr. Radley: Was there a question there?
Senator Simons: It sounds like a great idea to cut these interest rates, and I am in favour of, obviously, not legalizing loan sharking, but I am worried about what will happen to people who then don’t have any instruments to get credit and whether we’re going to keep an eye out. I guess that’s the question. What are we doing to keep watch to make sure something doesn’t develop that is just as bad?
Mr. Radley: I’ll say two things in response to that question. The first is that the lowering of the criminal rate of interest is, as I said before, really aligning with what is happening in Quebec today, and the department is not aware of any evidence that suggests that Quebecers are less able to access some of these types of loan products. That might be close to 30% or 35% on an APR basis, but we’re not aware of any evidence that suggests that Quebecers aren’t able to access it to a lesser degree than other Canadians.
The second thing I’d say is that the department will continue to monitor this and the Financial Consumer Agency of Canada is also monitoring this. They undertake a range of surveys and other research to look into this issue as well.
[Translation]
The Deputy Chair: You mentioned Quebec; I have a question about that. As to criminal rates of interest, certain provinces have set lower caps than what the federal government is proposing. Will this be standardized across the country or will the provinces and territories be able to act independently?
[English]
Mr. Radley: Were you talking about payday lending in particular?
[Translation]
The Deputy Chair: Certain provinces have already set a lower cap for criminal interest rates than what you are talking about, at about 35%. Will that interest rate be standardized across the country or will each province and territory still be able to independently cap interest at a lower rate?
[English]
Mr. Radley: I’ll talk first about the Quebec example. Under their consumer protection act, which I don’t have the name of in front of me right now, essentially how it works in Quebec is that lenders cannot get a licence to operate if they will offer consumer loans over 35%. That’s how it works in Quebec. Quebec, as far as we understand, is the only province that does this.
Other provinces could do the same thing as Quebec. Quebec, in the future, would have the flexibility to lower the cap if they wished, for example, to 30%. They would have the flexibility to do that, similarly to what they’re doing now.
Senator Jaffer: Thank you for being here. You mentioned gender-based analysis. The practice is for us to get that. Can you please provide the gender-based analysis to the clerk so that the committee can see it? Thank you.
Ever since I was a lawyer, one of my first cases was on this issue. I’m sure everybody knows that this is not a new issue for us. It’s always there around us. We are very good at putting legislation to good legislation, but what are the prosecutions? Before this legislation, how many prosecutions have there been? Mr. Taylor, can you tell us?
Mr. Taylor: I might ask my colleague, Mr. Hawthorne, to answer. I know he has the data and can provide that for you.
Mr. Hawthorne: Thank you very much, Mr. Taylor. I’ll just pull that up.
In general, we haven’t seen much criminal law enforcement — or civil action, for that matter — for section 347. We did look over a five-year period from 2016 to 2021 and our internal data shows that 283 charges over that period were found for section 347 of the Criminal Code. This represents an average of about 47 charges per year over that six-year period. Of those charges, only about 7%, or 21 charges, had a guilty finding. So there are very low figures for this particular offence.
Senator Jaffer: Mr. Hawthorne, are the low figures because there are not enough resources to prosecute? Is that the reason there are low figures? As Senator Simons said, there are many groups and many payday places set up, and their practices are questionable. Is that because the government is not putting enough resources into going after these payday people or even loan sharkers who are breaching it?
Mr. Hawthorne: Yes, that’s one possibility. We know that prior to the exemption for payday lending, which was enacted through Bill C-26 in 2007, provinces had indicated they were essentially unable or unwilling to enforce the current criminal maximum rate of interest for payday loans. This is mainly because of the large volume and low value of these particular types of loans and also the consensual nature of those transactions. It’s also because the effective enforcement would likely be to deny commercially available credit to an entire class of consumers, causing some consumers to make alternative or even less attractive credit choices. So that is sort of the dilemma, really, for this particular offence and payday loans in general. I think Senator Simons also touched on the demand for these types of loans.
So that’s why there has been a hesitancy over the years from an enforcement perspective to really crack down on this offence.
Senator Jaffer: Thank you.
I have a question for you, Mr. Radley. Is the rationale for setting the criminal interest rate at 35% because Quebec has that?
Mr. Radley: I wouldn’t say that is the only rationale. The other rationale we would point to is that many consumer groups had called for that, suggesting it would be an appropriate amount. I should note as well that several industry stakeholders made submissions saying that something around that range could be appropriate.
Senator Jaffer: And what about for credit card companies? Is that what you were looking at as well?
Mr. Radley: It would apply to credit cards as well. I don’t have the statistics for credit cards, but I believe that most credit cards are at least a bit under that 35%. But it would certainly apply to credit cards, yes.
Senator Jaffer: Thank you.
Senator Klyne: Welcome to our guests. That criminal interest rate at 35% APR is evidence that these are very high-risk facilities. They’re probably high risk because there’s a credit‑rating risk, there’s questionable to no security or collateral and the ability to repay is questionable. In the event of a default, what recourse is available to these lenders?
Mr. Radley: I’ll get to that question in a moment. It is true that many Canadians who get these high-cost loans have limited to no history for their credit or have low credit scores and so would be viewed by lenders as being particularly risky.
In terms of recourse for lenders, I don’t have a great grasp of that. Typically, the lender would send it to a collections agency, which would try to collect, and then they may ultimately write off the loan if it’s not able to be collected. If the consumer went into a bankruptcy proceeding, then they may recover a bit.
Senator Klyne: I may have missed this, but are they not able to cap the interest? At some point they need to stop the clock there and send it to collections rather than continue to cap interest.
Mr. Radley: As long as the loan is outstanding, they can keep charging the 35% annually, so they can keep adding to the loan. However, if the borrower isn’t paying, they may not ever be able to collect that.
Senator Klyne: So there’s nothing in the legislation to suggest at this point that you cannot cap it and that it should be sent to collections. But that’s probably on an individual basis of the lenders.
You talked about the cycle of debt. Did anybody do any predictions or forecasts about how the cycle of debt gets broken? Because if you continue to cap interest, or you can’t continue to leave it in a default position, it kind of mounts. Are some getting further in through this process, or are they able to reserve a good amount that are actually going to repay these debts?
Mr. Radley: I don’t have any analysis I can share at this point, but certainly from some of the surveys that the FCAC has done, it’s a very common practice for people to take on payday loans to roll over their payday loans, maybe a couple of times; they may take out multiple payday loans. That’s what we’re talking about when we talk about the cycle of debt. These high-cost loan products inhibit the borrower from repaying, and so it just keeps going and going.
Senator Klyne: And on the other loans as well, at 35%.
Mr. Radley: Yes, on instalment loans as well.
Senator Klyne: When you talk about advocacy groups, were they advocating on behalf of the lenders or the borrowers?
Mr. Radley: On behalf of consumers, so borrowers.
Senator Klyne: And they were satisfied by 35%?
Mr. Radley: I think that’s partially informed by the Quebec experience —
Senator Klyne: — which is a cap.
Mr. Radley: Yes.
Senator Klyne: Nobody advocated for something lower?
Tanjana Islam, Analyst/Economist, Department of Finance Canada: Some consumer advocacy groups did advocate for a lower rate. They ranged between 20% plus the Bank of Canada rate to 30% plus the Bank of Canada rate, but 35% was the consensus suggestion just based on the Quebec experience.
Senator Klyne: Thank you.
[Translation]
The Deputy Chair: Do you expect there will be a mechanism to review that percentage in accordance with changes in the economy or the social context? Thirty-five per cent is arbitrary; it is similar to the rate in Quebec. You could have set it at 25%. If the economy were to worsen, for instance, or if the social context changes and people no longer accept that rate because it is too high, is there a mechanism to review the percentage?
[English]
Mr. Radley: There isn’t a review mechanism built into the legislation, but the department, alongside FCAC, will monitor the situation.
The Deputy Chair: Thank you.
Senator Batters: Thank you for being here today.
As we talk about this today, I just feel that one senator’s name is definitely missing in this whole equation, and that’s Senator Ringuette. She has brought this bill forward many times over the last several years as a Senate bill. I think she has brought it forward herself four different times for much of the time that I have been in the Senate in the last 10 years. The last time that she gave a second reading speech on it was March 22, 2022, where she said this:
I am happy to finally introduce my bill to lower the criminal interest rate. I have spoken on this topic many times before. I am optimistic from the support I have received in the chamber, but alas, the bill has not passed.
The first time, the bill made it to committee, but then there was an election. The second time, it made it through committee, with amendment, but then another election. I also tabled it in the spring of last year, but, of course, there was another election. So let’s see if we can do it this time before another election.
That is what she said a year ago.
Now, we have this issue that has permeated for many years, and it is now in a 430-page budget implementation act, or BIA, giving us here at the Legal Committee very limited time to study this particular part of this and also, probably, no real chance to amend if there actually needs to be amendments to this.
I will have to start calling this BIA the “everything-but-the-kitchen-sink BIA,” because there are things in here that have waited for years, and now, all of a sudden, the government is putting them in there.
I don’t know if this is in case of a Trudeau government prorogation and potentially another election, but why has the government waited so many years to do something on this when Senator Ringuette has consistently brought it up? I remember CBC’s “Marketplace” had a show about it, talking about her bill. Why is this just finally coming forward now, and why is it in the budget implementation act with limited time to study it?
Mr. Radley: Thank you for the question.
Starting with your second question first on this measure’s inclusion in the BIA, I can’t speak to the government’s decision on that.
In terms of why now, I would note that it was in our minister’s mandate letter in 2021.
Senator Batters: I haven’t seen that.
Mr. Radley: The department subsequently undertook consultations, considered those consultations and undertook policy development, and that is where we ended up today with the Budget 2023 announcement.
Senator Batters: When did these consultations take place?
Mr. Radley: Over the course of summer and early fall 2022.
Senator Batters: Of course, there are many things in the minister’s mandate letter, but limited things are proceeded with.
Again, why not have it go forward in a standalone bill, where we can actually study it properly and potentially make amendments that may be needed at this point, rather than have it as one portion of a very large budget implementation act?
Mr. Radley: I can’t speak to the government’s decision to do that.
Senator Batters: Who can? The minister herself?
Mr. Radley: Yes, I think so.
Senator Batters: Okay. Do either of the other two of you have anything to add on those points?
Mr. Taylor: I take your point; it has been an issue for many, many years. The criminal interest rate provision has been the subject of study by the Uniform Law Conference of Canada, for example, urging consideration of reform to the provision, so it has been an ongoing concern. We’re aware of that. We support the government. I don’t think we can add anything more in terms of timing or in terms of the choice as to why the bill was introduced in the manner in which it has been introduced or today, for that matter, in terms of the budget implementation act.
Senator Batters: Okay. Will this criminal interest rate apply to federally regulated financial institutions who are regulated by the Office of the Superintendent of Financial Institutions — OSFI — and the FCAC, such as the big six banks?
Right now banks can provide bridging financing, like bridge mortgages, which are short-term loans, which can help people purchase a home but could have rates that could potentially exceed this new criminal interest rate. I’m wondering if the Department of Finance has considered that issue and what the impact of lowering the criminal interest rate will have on bridging financing.
Mr. Radley: Yes, this will apply to federally regulated financial institutions. This issue of bridge loans could be considered for an exemption under the regulations.
Senator Batters: It could be considered for an exemption, so then the criminal interest rate would not apply to that?
Mr. Radley: That’s correct.
Senator Batters: Wow. And when will we know about that? When cabinet makes a decision about that?
Mr. Radley: Yes, as part of the regulation-making process.
Senator Batters: So we are being asked to pummel this bill through in a budget implementation act, and yet, a very significant number of bridge mortgages could be impacted by this, but we won’t know whether they are going to get an exemption or not until after this bill is passed?
Mr. Radley: Yes.
Senator Batters: Thank you.
[Translation]
The Deputy Chair: The bill prohibits criminal interest rates. When a crime is committed, an individual may go to the police and file a complaint. What will the process be for individuals who feel aggrieved? Would they go to the police or to the Justice Department? What will the process be for individuals to file a complaint?
[English]
Mr. Taylor: It’s a good question. Thank you, Mr. Chair.
As you know, Criminal Code investigations and prosecutions are primarily the responsibility of the provinces. Absolutely, in situations where it is believed that an agreement or arrangement runs afoul of the criminal interest rate provisions, the course of conduct would be to report that to the police for investigation, and then they would investigate. And, as you may know, a prosecution under section 347 requires the consent of the provincial attorney general.
If I could just go back a bit more in terms of the regulation‑making question from Senator Batters, you will recall that the regulation‑making process allows for prepublication so that Canadians and interested groups can inform the regulation‑making process.
The example that Mr. Radley gave around bridge financing has been an issue that has been raised for 20 years or more that I am aware of in terms of the application of the criminal interest rate provision to bridge financing and whether that is appropriate, given the lending arrangement in that situation is quite different than loan sharking or predatory lending, which was really the purpose and objective of section 347 when it was first enacted.
So I think the government’s policy objective here is to try and create a space whereby the criminal law remains available to respond to that abusive, predatory lending and to protect the public from it, on the one hand, but to also acknowledge the unintended consequence that came about when section 347 was enacted where it attaches itself to lending agreements where the sophistication between the parties is of a different order.
I hope that is helpful additional context.
Senator D. Patterson: I am glad my colleague mentioned Senator Ringuette’s heroic efforts to deal with credit card interest rates.
I would like to delve into that a little bit further, and my understanding is that credit card rates in Canada can range as high as typically 19.99% and 25.99%, which I believe are compounded monthly as I understand it. You said this bill applies to these credit card interest rates, but the criminal interest rate has been lowered to 35% per annum.
I am just wondering if I am right about high interest rates for credit cards being, say, 25.99%. Is this proposed 35% rate really intended to target these credit card interest rates, or am I comparing two ways of calculating interest? Because 35% does not seem low enough to do anything about the typical rates of 25% in the higher range.
Mr. Radley: Thank you for the question.
I think you are correct that typically credit card interest rates are lower than 35%. I don’t have the range of credit card interest rates in front of me, but most of them are in that range. We would expect that they would be unaffected by this lowering of the criminal rate of interest.
Senator D. Patterson: So, with respect, it may not be fair to the public to suggest that this bill will deal with, at least, the typical credit card rates on the high end.
Mr. Radley: Yes, that is fair to say. There may be some credit cards that are affected. More typically, credit cards will not be affected.
Senator D. Patterson: Why wasn’t consideration given to lowering the rate to meet the real problem that citizens face in having what I think are punitive rates in the 25% range compounded monthly? Why wasn’t consideration given to targeting what is the reality of the average consumer who, these days, is paying the minimum and incurring spiralling debt?
Mr. Radley: The one thing I would note there is that these instalment loans that would more typically charge these higher rates are even more punitive than the rates that credit cards would charge. We are addressing what is or would be the most punitive products.
Senator D. Patterson: I just think it is a little bit deceptive to say that the credit card rate issue is covered by the bill when I think that you have admitted that at least the average high end of the rates would not be captured by the 35% range.
Mr. Radley: Sorry. To use an example, if a credit card does charge 25%, it would be 10% below the 35% cap. It is only if the credit card were charging more than 35% that it would be affected. Many credit cards don’t charge that high.
Senator D. Patterson: So they are not affected by this bill?
Mr. Radley: The ones that charge 20% to 25% would not be affected by this bill. The ones that do charge more than 35% today would be affected, but I believe that number is quite small.
Senator D. Patterson: Thank you.
[Translation]
Senator Dupuis: Let’s take the example of a consumer who has mortgage debt with a bank, who has two or three maxed-out credit cards and who wants to try to get a loan from a lending agency. How would this measure directly affect that person’s situation? The Department of Justice representative told us that there are not very many prosecutions, and I find that worrying.
Payday loans are consensual. If I’m in a situation where I’m up to my eyeballs and up to my ears in liabilities, what will this do for me? If I’m not being charged 35% anywhere, either by the bank or the credit card company, I’m still stuck with my problem. If I have a payday loan, but I’m not being charged more than $14 per $100, I’m not covered by this. Why should I feel encouraged by this measure? I have enough education to know that 60 is more than 35. Do I have any reason to hope that someday I will be able to get ahead, short of stopping paying altogether or coming into an inheritance?
[English]
Mr. Radley: Thank you for the question.
For many consumers, they may have mortgages, car loans or credit card debt. One thing that consumers sometimes do is take on some debt to consolidate debt. That is one of the common uses of these high-cost instalment loans; it’s not the only reason people use them, but it is certainly a very important reason. In these circumstances, before the introduction or before this is implemented, they would be facing much higher interest rates for these types of products. With this measure, they would be facing lower interest rates.
There was one example that was in Budget 2023. We use this example of Hannah, who took on a $5,000 high-cost instalment loan with a two-year amortization period. She pays it back over two years. At the new rate, Hannah will have saved $775 over the life of the new loan. It would certainly allow Canadians to have more money to either pay off their debt faster or for other essentials.
Senator Clement: Thank you for being here.
I want to come back to Senator Ringuette and Bill S-239; both Senators Patterson and Batters made reference to the bill. I have it in front of me. I want to read it and delve into some of the comments you made in response to Senator Klyne’s question.
Her bill says:
criminal rate means an effective annual rate of interest calculated in accordance with generally accepted actuarial practices and principles that exceeds the Bank of Canada’s overnight rate plus twenty per cent on the credit advanced under an agreement or arrangement . . .
I guess that would make it a variable rate. The current Bank of Canada rate may be 4.5%, but I could stand to be corrected. It would be lower than 35% if we were looking at it today.
Can you comment on the difference between this and Senator Ringuette’s bill, Bill S-239, and comment on the difference between a fixed and variable rate, and what consumer advocacy groups have talked about in terms of that?
Mr. Radley: Thank you for your question.
There are several motivations for a fixed rate over a variable rate, such as a fixed amount above the Bank of Canada rate. The primary reason is the ease of understanding, both for consumers and industry.
On the lenders’ side, a floating rate could lead to circumstances where a lender inadvertently contravenes the provision: say they have put in the rate, the Bank of Canada raises the rate and then the next day they are contravening the provision.
For example, loans that include these fixed fees could comply with the criminal rate one day and be above the legal limit the next. As well, for lenders, they also have costs. They have high fixed operating costs that are unrelated to what the actual Bank of Canada rate of the day is.
As well, on the borrowers’ side, for products such as revolving lines of credit, they have varying interest rates throughout the life of the loan. It could be a bit less confusing.
Mr. Taylor: Just to supplement Mr. Radley’s comments, we already heard about the enforcement challenges with section 347. Certainly, a fixed rate as compared to a floating rate addresses that issue in a more obvious and understandable way.
On any given day, we know with certainty what the percentage is that sets the criminal bar, as it were. It makes it much easier, from a police officer and a public perspective, for people to know if they are running afoul of the criminal law by entering into an agreement at a rate that, as Mr. Radley said, may fluctuate from one day to the next.
Senator Clement: That is certainly clear for the lenders. It protects the lenders. At the end of the day, it might often be lower than 35%. Can you speak more about what consumer advocacy groups have said about that 35%?
Ms. Islam: For the consumer advocacy groups who spoke about the 35%, most of them referenced the Quebec rate. They also drew two examples from the United States. That is, 19 states in the U.S. have moved towards a maximum rate cap of 36% on their high-cost loans.
Yes, that is generally what consumer groups did say about that.
Of the ones who commented on fixed versus floating, there was mixed feedback on that from consumer groups. Some consumer groups advocated for floating but only because they commented on how the Bank of Canada rate has fluctuated recently. The evidence pointed to a fixed rate perhaps being better for consumer understanding as well. Mark gave the example of a revolving line of credit where the rate changes over the life of the loan. For ease of consumer understanding, it may be easier for them to know that there is a maximum fixed rate on their loan.
Senator Clement: Did some of those groups advocate for less than 35%?
Ms. Islam: Yes, some of them did.
Senator Clement: What did they use as justification for that?
[Translation]
The Deputy Chair: We will move on to the second round. Senators will have three minutes each, as time is running out.
Loansharking is now a crime. Do you have an awareness strategy so that citizens know that, tomorrow morning, they can go to a police officer and report that they have been cheated? Do you have plans for an awareness-raising campaign?
[English]
Mr. Taylor: If the legislation were to be enacted, we would support the public’s understanding of the legislative changes. Within our sphere of criminal law responsibility, we have a network of provincial and territorial senior officials that we would share that information with. We would share it with our prosecution colleagues who have their own networks with the provinces and territories to support the public’s understanding of these changes.
Senator Dalphond: If I understand correctly, we have to be careful here because we do not compare the same way when calculating the interest rate. When we refer to the current rate, it is 60% according to a formula which is translated to mean 47% under the new way to calculate interest now.
Now you propose 35%. What is the reduction exactly, 12%?
Mr. Radley: Yes, that’s correct.
Senator Dalphond: People might believe that we moved from 60% to 35% and went down 25%, but the reality is that we went down 12%.
Mr. Radley: Yes, that’s right.
Senator Dalphond: Okay. It is important for people listening to us to understand that reality.
The second issue is one that Senator Batters has raised — and I think it is a good point — and that is the power of the Governor-in-Council to exclude from the cap a certain type of lending.
I am thinking about, for example, junk bonds. I assume they are the type of product that would be excluded from that. Is that what you have in mind? She also spoke about bridge financing.
Mr. Radley: Thank you for the question. By junk bonds, do you mean corporate bonds issued by corporations?
Senator Dalphond: Yes.
Mr. Radley: Okay. If the government were to consider commercial loans then I would imagine that would be captured.
Senator Dalphond: But there is no indication so far in the budget document about what types of instruments we’re looking at.
Mr. Radley: Maybe I will ask my colleague Mr. Taylor to respond to that.
Mr. Taylor: Mr. Radley is right. The policy work needs to be undertaken to determine which types of agreements might be eligible for exemption under the regulation-making authority.
What I might offer to the committee — and I alluded to it already — is that in and around 2008 or 2009 the Department of Justice led a study, through the Uniform Law Conference of Canada, which brought together both criminal law experts and civil law experts to look at the issues around section 347. There are a number of examples in that report of the types of arrangements or agreements that the members of that report felt were not perhaps appropriately addressed through section 347 because of the policy objective of the provision to address loan sharking and to protect vulnerable consumers, on the one hand, versus sophisticated lending arrangements between people or organizations of relatively equal bargaining power. That might be helpful for the committee to see in terms of the kinds of arrangements that might fit within this regulation-making power.
Senator Dalphond: Thank you.
Senator Simons: It occurs to me that a lot of the questions we’re asking here would be better asked at the Banking Committee rather than at the Legal Affairs Committee. You are here because this is a change to the Criminal Code, not because we are supposed to be experts on bank policy.
I want to ask about enforcement. Is this the kind of thing municipal police officers will enforce? Is this something that the RCMP white-collar crime division will look at?
Forgive me — because I’m filling in on the committee and I should know the answer to this but I don’t — but are these sanctions to be held against corporations or individuals, or is it both?
Mr. Taylor: Thank you for the question. You will recall the Criminal Code defines “person” which includes both natural persons and legal persons, so it does apply equally to individuals as well as corporations.
Yes, police officers are responsible for enforcement. Mr. Hawthorne has talked a bit about some of the challenges around enforcement that have transpired.
The only other piece I might add is that the conduct addressed by section 347, the policy objective, of trying to find an objective way of enforcing extortion can also be addressed through other offences.
When we look at section 347, we get a snapshot of the kinds of situations that we might expect would warrant criminal sanction but it doesn’t provide a complete picture. We might also see conduct in uttering threats or the extortion provision itself. Speaking candidly, I do not imagine that there is a lot of enforcement in these situations currently.
Senator Simons: Arresting a guy with a baseball bat is one thing — a loan shark like we see in the movies.
Mr. Taylor: Yes.
Senator Simons: We are talking about corporations — that is, people in nice suits and ties who sit in fancy offices. Will there be any personal liability, or is it the company that will face a fine?
Mr. Taylor: It would depend on the way that the investigation and charge was laid. There would be an ability to charge both individuals and the company under these provisions, though.
Senator Simons: Thank you.
Senator Klyne: Going from 60% EAR to 35% APR may tweak some interest in the vulnerable groups to borrow, which makes me think about what measures the government will be taking, currently pursuing or intending to pursue to inform the public of the regulation of interest rates via the criminal law and, more specifically, to inform vulnerable groups that encounter difficulties in obtaining credit from banks and credit unions, and informing them in terms of financial awareness of the pitfalls of making late payments or missing payments and eventually getting into default. Senator Patterson referred to it as a spiral. I might refer to it not as a debt spiral but a death spiral as things compound.
Are they doing anything to provide awareness to these vulnerable groups to be cautioned about these higher interest rates and how they can spiral, compound and take them under? Is there anything contemplated in controlling fees that these lenders can charge? If you have 35% APR, is there something stopping them from adding fees on, which then adds back to their ROI?
Mr. Radley: Starting with the last one on the fees, they would be included in the definition of interest. It would be capped at 35%.
Senator Klyne: Is it included in the APR?
Mr. Radley: Yes. I don’t have any plans to share at this moment how we might publicize this further, but I know that the FCAC has a role in financial literacy of Canadians and has a very active program in promoting this type of understanding. The last thing I would mention is that provinces have a complementary role here too. Many of them have high-cost loan regimes and undertake consumer education initiatives of their own as well.
Senator Klyne: That would be like a public awareness campaign.
Mr. Radley: Some provinces do.
Senator Klyne: Thank you.
[Translation]
The Deputy Chair: Senator Dupuis asked me whether you could send us your 2018 report, but the Library of Parliament has just advised me that they are going to send us the link so that we can access it.
I would like to sincerely thank our witnesses, who very professionally and very clearly answered our questions. Again, thank you for being here on short notice. I invite you to stay for a few minutes to debate Bill C-9 with respect to the minister’s appearance. We will not be suspending the meeting, so we are going to start our discussion on this subject right away. I would remind you that, yesterday, when we were discussing the minister’s response, we agreed to invite the people from the Canadian Judicial Council this morning so they could shed some light on the questions we had. The matter of the minister is back up for debate, and we are wondering whether it would be possible or we have an obligation to invite the minister to come speak to us about Bill C-9.
Senator Dalphond: Thank you, despite the late hour, for reminding us that we had decided to conclude the meeting with this topic today. After hearing from the council representatives, I believe that they have provided answers to many of our questions and I think that we should take note of the fact that the minister declined the invitation. Therefore, at the committee’s next meeting, on Wednesday, I propose that we proceed to clause-by-clause consideration of Bill C-9.
The Deputy Chair: Would anyone else like to comment?
[English]
Senator Batters: I certainly don’t feel like the Canadian Judicial Council officials were in a position to deal with many of the answers or many of the topics we had questions about, so I think it would certainly be helpful for the minister to come. They provided their responses, as far as what they know, but even some of the responses they gave, including about suspension being a tool that chief justices apparently already use, yet that’s never something that we’ve heard from the minister or their officials, and it’s certainly not a transparent way to proceed. If the minister decides not to come, that’s fine, but I think that perhaps we should focus on, at this stage, rather than going to immediate clause-by-clause on Wednesday, we continue to work on the budget implementation act. It is pretty clear that the different parts that our committee has been tasked with are going to take more meetings than we’ve allocated, and then leave Bill C-9 for a little bit until we finish this work.
Senator D. Patterson: I’m wondering if the clerk could help us. Was the request for the minister to appear this week? Is there anything to lose by asking him to appear next week? Was that a flat, “I will never come back”?
Mark Palmer, Clerk of the Committee: It was a decline on the request to appear on Bill C-9. It wasn’t based on dates, it was declining the invitation on Bill C-9. The minister is appearing here on May 18 on the budget, but it was an outright decline for Bill C-9.
Senator Batters: We could have a couple more meetings next week, and then perhaps — what day would it be that he would be appearing? Is that a Thursday?
Mr. Palmer: The following Thursday, May 18, is when the minister is scheduled to come in.
Senator Batters: So we can ask the necessary questions about the budget implementation act to the minister when he comes on that particular day, maybe it would be better to have additional study for some of these other areas so that we can really ask him very pointed questions about this rather than getting into Bill C-9, which could take one or potentially more meetings on clause by clause.
[Translation]
Senator Dupuis: I feel we have the information necessary to do the job we need to do, which is to conclude our study, proceed to a serious clause-by-clause consideration, and take the time necessary to consider what the members of the committee propose, whether it be in the form of amendments or observations.
However, I wouldn’t want for us to be rushed because we delayed our work on Bill C-9. We are now ready to consider amendments, and some were even put forward this morning. We are at the end of our reflection, and I see no reason why we shouldn’t focus on this work as of now.
The Deputy Chair: Any further comments?
Senator Dalphond: Time is running out, and we’ve already lost a few meetings, either because we postponed them or because we didn’t have witnesses. There’s also a break week coming up. There are fewer senators who have said that they have amendments. The clock is ticking, and everything will move very quickly when we come back in June after the break, which will make things very complicated. In my opinion, the debate on Bill C-9... I agree with Senator Dupuis that it’s time to conclude the debate and go to clause by clause.
[English]
Senator D. Patterson: It seems that there are amendments that are being considered, as we’ve heard this morning, and I was hoping that the minister would be available to respond to those amendments. It would be very useful to know whether there might be support for some amendments that have emerged from the evidence. It is not uncommon to have a minister come back when issues arise following their initial appearance. However, it being the case that he absolutely won’t come back — which puzzles me a bit — I think that we have no choice but to go ahead on the expectation that it appears there will be amendments, and it’s unfortunate that we may not get the government’s view on those amendments.
[Translation]
The Deputy Chair: You are moving that we proceed to clause-by-clause consideration of the bill. Is that correct?
[English]
Senator D. Patterson: I think we have to deal with the reality that the minister won’t come back, and the consequences of that are that there may be amendments that he may or may not endorse that will be presented.
[Translation]
Senator Dupuis: I would like to remind you that when I invited our colleague, the sponsor of the bill, to consult with the Minister of Justice on the four points that are before the committee and that were addressed by the witnesses, it was so that the minister could consider those points himself and potentially decide to put forward amendments of his own.
I have to conclude from that that the answer is no, and I understand that the minister does not wish to go any further. That is why I believe that we must continue to work on the basis of what we have before us.
[English]
Senator Batters: I want to make the point that I think it is unfortunate, particularly when we’ve already had some amendments that Senator Clement provided to us earlier today that have some amendments that are very pointed and very precise, and the fact that the minister wouldn’t simply consider those and let us know that they are things the government can agree to. It seems to me like they’re trying to just get this bill to come forward as soon as possible and really trying to discourage amendments, which I think is not a good way to proceed, particularly when there are some matters that the government could approve to have go forward so that this is a better bill.
When we have other matters that are more of a dispute, I can see the minister wanting to reserve opinion until a full amendment is drafted, but with some of these amendments, particularly taking “As far as possible . . .” out of the diversity paragraph, that should be something the government is willing to proceed with.
But if the minister isn’t willing to come and isn’t willing to consider amendments right now, they’ll have to just live with what this committee decides and what the Senate decides.
[Translation]
The Deputy Chair: Senator Dalphond and Senator Klyne, I would also like your opinions.
[English]
Senator Dalphond: The usual practice is that we close the hearing and proceed to clause by clause. Then there are amendments. I never heard of people coming to the meeting before we reach clause by clause and propose amendments and the minister has to come back. It’s the usual practice that we go to clause by clause. Officials from the department would be there as usual when we do clause by clause; they would be able to opine. And since I’m in the possession of the amendments that were tabled this morning, I’ll undertake to consult with the minister’s office to know what I should answer. I think we should move on. Thank you very much.
Senator Klyne: I find it interesting, because I probably missed something — and maybe I didn’t — but when we talked about this in a prior meeting — probably two meetings ago — I walked away understanding that there was a misunderstanding and the minister never did indicate that he was working on something and would come back in that regard. I don’t know how we got to the point of thinking he was coming back with some new tablets from the mountaintop to look at.
I’ve never really heard of ministers coming back, other than during the original launch with a committee; I’ve never seen them come back or return. Departmental staff do, perhaps; you’re lucky if you get a chief of staff. Certainly, senior officials of a ministry would come back, and they make themselves available for a round of questions, if you will. But I didn’t think we were coming back with the idea that the minister would return.
But I do think we need to keep the proverbial ball rolling here, and I did not see the amendments that were handed out.
Senator Batters: Senator Clement emailed them out earlier this morning.
Very briefly on that particular point, what we have seen many times at Legal Committee when there have been bills that have obvious amendments that witnesses have talked about and when there’s been significant discussion, then the government, usually the senator sponsoring the bill, comes forward with amendments from the government to correct those different issues. We have seen that. One time, I remember when there many, many amendments that were brought forward by the government at the clause-by-clause stage by Senator Gold before he was government leader. It was on the Access to Information Act changes, and there were many amendments — I’d say probably 20 or more — that came from the government at that final stage.
So that is often how the government expresses its view, and I’m surprised we’re not seeing that here. But anyway, thank you.
Senator Dalphond: I replied to that last week and I said it: I’m not coming with any amendment, and the minister is instructing me to come with amendments.
[Translation]
The Deputy Chair: I will wrap up, although I would prefer that the minister come back to the committee. I see it is the will of the majority of committee members to move forward. Therefore, we will continue on next week and conclude with the Senate. Thank you very much. Have a great weekend.
(The committee adjourned.)