Standing Senate Committee on Legal and Constitutional Affairs (44th Parliament, 1st Session)

THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE

OTTAWA, Wednesday, May 17, 2023

The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:18 p.m. [ET] to consider Bill C-9, An Act to amend the Judges Act, and 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 Brent Cotter (Chair) in the chair.

[Translation]

The Chair: I would now like to ask the senators to introduce themselves, starting on my right.

Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec (La Salle).

[English]

Senator Batters: Senator Denise Batters, Saskatchewan.

Senator Jaffer: Mobina Jaffer from British Columbia. Welcome.

Senator Pate: Kim Pate, and I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.

[Translation]

Senator Clement: Bernadette Clement from Ontario.

[English]

Senator Klyne: Good afternoon. Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.

Senator Quinn: Good afternoon. Jim Quinn, New Brunswick.

Senator Simons: Paula Simons, Alberta, Treaty 6 territory.

The Chair: Brent Cotter, a senator for Saskatchewan and chair of the Legal and Constitutional Affairs Committee.

Senators, we will be returning to clause-by-clause consideration of Bill C-9. Just before we do, since there may be a new and large audience for our deliberations today, let me reintroduce the witnesses who have joined us to assist in our deliberations. From the Department of Justice Canada, we have Toby Hoffmann, Director and General Counsel, Judicial Affairs Section; Patrick Xavier, Senior Counsel, Judicial Affairs Section; and Shakiba Azimi, Counsel, Judicial Affairs Section. Welcome and thanks again for joining us.

Just to be more specific, this is continuing clause-by-clause on Bill C-9, and we are now continuing with clause 12. There are combined amendments with respect to this. We will deal with the first one, but I’m going to try to give you licence if you end up speaking about both because they are linked to one another inexorably.

The particular one we will be addressing, then, is DB‑C9-12-14-5-Federal Court 1.

Senator Batters: Thank you very much.

With this particular one, to get the formal part of the way, I move:

That Bill C-9 be amended in clause 12,

(a) on page 14, by replacing line 5 with the following:

“Supreme Court of Canada, by a decision of the Federal Court of Appeal if the Federal Court of Appeal’s decision is final, or by the decision of an ap-”;

(b) on page 16,

(i) by replacing line 19 with the following:

“Further Appeals”,

(ii) by replacing lines 23 to 26 with the following:

“sends them a notice of its decision, appeal the decision to the Federal Court of Appeal.”

“138 If leave to appeal a decision of the Federal Court of Appeal made on an appeal under section 137 is granted by the Supreme Court”;

(i) by replacing line 4 with the following:

“pired,

(b.1) the Federal Court of Appeal has made a decision in respect of the appeal panel’s decision and

(i) the judge and the presenting counsel have both waived their right to seek leave to appeal the decision to the Supreme Court of Canada, or

(ii) the time limit for filing an application for leave to appeal the decision to the Supreme Court of Canada has expired, and”,

(ii) by replacing lines 6 and 7 with the following:

“leave to appeal the decision of the Federal Court of Appeal or, if it has, it has made a decision in respect of the Federal Court of Appeal’s decision.”,

(iii) by replacing line 9 with the following:

“decision and any decision of the appeal panel, the Federal Court of Appeal and the”;

(d) on page 20, by replacing line 13 with the following:

“Federal Court of Appeal and the Supreme Court of Canada relating to those proceedings.”.

The second amendment that I may need to present is dealing with the same thing, the Federal Court of Appeal, but because it’s a different clause, when we’re doing clause-by-clause at committee, that wouldn’t be presented until later.

On this one, in Bill C-9’s present state, the only actual court that would deal with a judicial disciplinary matter would be the Supreme Court of Canada, and that’s if — and it’s a big if — the Supreme Court of Canada grants leave, which means gives permission to hear that case. As my remarks here will note, the Supreme Court of Canada only gives this permission in a very small number of cases. As such, my amendment would insert the Federal Court of Appeal into the end stage of this judicial disciplinary process. This way, one actual court would be available for a judge facing this process.

I note that even with this addition, this would still be a definite streamlining of the existing process as the existing process involves judicial review of a panel decision to the Federal Court, then the Federal Court of Appeal, then to the Supreme Court of Canada, with leave.

For what I actually recall as the first time in the 10 years that I’ve been on this committee, the Canadian Bar Association president has come to the Senate Legal Committee to testify. He, on behalf of the very large lawyers’ association, the Canadian Bar Association, with 37,000 members, recommended this amendment to us. I would also note that, in my experience on this committee, it is quite rare for the CBA to recommend such a substantial amendment to us on a government bill like this.

Steeves Bujold, the CBA president, said this about this particular issue:

We now suggest introducing an amendment to the bill that would create an intermediate level of appeal from a final decision of the Canadian Judicial Council to the Federal Court of Appeal. Although, at first blush, this would seem to add delay, the process, overall, remains much more efficient.

We see two important reasons for an appeal as of right to a court below the Supreme Court of Canada. First, as a matter of natural justice, it ensures that there is external oversight to the process. Second, the judiciary is so important to Canada’s democracy that the public must see that judicial discipline is carried out in an open and accountable manner with clear avenues of appeal and redress. Another benefit of a right of appeal is that the Federal Court of Appeal is likely to give detailed reasons so the judge accused of misconduct and the public will then know why an independent court concluded the way it did. This enhances the Canadian Judicial Council’s credibility by the transparent review of its process and decision making.

To conclude, the judicial branch is a pillar of our democracy and must be accountable to and accepted by the public. By creating a clear, open process for judicial discipline where the Canadian Judicial Council’s actions can be meaningfully appealed to an appeal court and by having review proceedings conducted in open court, the public retains confidence in the judicial discipline system’s integrity. Justice will be seen to have been rendered.

We encourage you to adopt Bill C-9, recommending an amendment to the appeal process …

In response to my question to him that day asking him to expand on the need for this amendment, Mr. Bujold said this:

For us, there is a necessary amendment, which is the authorization to appeal to a court of law, the Federal Court of Appeal, to correct any errors that may occur in the process. No system is perfect, and any system in which peers pass judgment on a colleague can lead to miscarriages of justice.

Unfortunately, appeal to the Supreme Court of Canada is an extremely limited remedy because of the criteria that exist — rightly so — in the Supreme Court Act for bringing a dispute to the court. Moreover, the court has repeatedly said that its role is not to correct the errors of lower courts. So even on a case on which there may be a consensus that an error has occurred, or even if several independent observers share that view, the Supreme Court may not be able to take the case because it would not, for example, meet the national interest test that is absolutely necessary to bring a case before the court.

That is why we support this amendment, as do other legal organizations, to allow this appeal to the Federal Court of Appeal, which will not only benefit the judge against whom the allegations are made, but may also benefit the attorney responsible for presenting the case before the review panel and the appeal panel.

He further said:

In our view, having a system of checks and balances in the Federal Court of Appeal is a safeguard to build Canadians’ confidence …

In response to Senator Cotter’s question about appeals to the Supreme Court of Canada, Mr. Bujold said this:

… a right of appeal as of right to the Supreme Court of Canada might be a useful remedy. However, this very rarely happens in court. As far as I know, only decisions where there is a dissent in the court of appeal can go to the Supreme Court as of right. The fact remains that if the complaint, if the judge under investigation is a Supreme Court justice, it’s a complex question of law. Can the rest of the court sit in judgment of an appeal by a colleague, and can enough justices who do not already have knowledge of the facts be assembled to have a quorum? It’s a pretty complex question, one that would perhaps be less of an issue in the Federal Court of Appeal, since there are enough judges to assemble a three-judge panel.

The Advocates’ Society, who also recommended this amendment I’m bringing today, stated this to us on March 30, 2023:

The Advocates’ Society also agrees that one principal source of the delay and costs in the current process is that parties can apply to the Federal Court for judicial review at multiple points in the process, and then parties can avail themselves of several levels of appeal. We submit that Bill C-9, however, overcorrects this problem by replacing the court review process with review mechanisms that are almost entirely internal to the Canadian Judicial Council. Under Bill C-9, parties can only seek leave to appeal decisions of the CJC’s appeal panel to the Supreme Court of Canada.

This is a concern because there is no right of appeal. Rather, an appeal is only available if the Supreme Court grants leave. The Supreme Court is not an error-correction court, and leave is only granted in cases of public importance. Historically, they only grant leave in about 7% to 8% of cases per year, so there is no guarantee that the Supreme Court will grant leave to appeal, even in a case where the CJC’s decision is wrong — and, in our respectful submission, all decision makers can get it wrong sometimes. That is the purpose of appeal courts.

The Advocates’ Society is concerned that Bill C-9 creates a legislative scheme in which the Canadian Judicial Council is the investigator, the decision maker and the appellate authority with respect to allegations of judicial misconduct. In the end, external judicial oversight of the CJC’s decisions and actions is all but eliminated.

The proposed process is concerning because court oversight of administrative actions is fundamental to ensure their legality and fairness. The lack of court oversight of the CJC’s process undermines the security of tenure of the judiciary, which is a critical component of judicial independence.

The Advocates’ Society suggests there is a simple remedy to our concerns: We propose instead that the parties be provided with a right to appeal the CJC’s appeal panel’s decision to the Federal Court of Appeal instead of the Supreme Court of Canada.

We must stress that we believe our proposed amendment will not reintroduce delays and costs we see in the current process, which the government is rightly trying to fix. The proposal ensures that only the CJC’s final decision will be subject to appeal directly to the Federal Court of Appeal. This will eliminate one layer of judicial review — the Federal Court — …

They went on to say:

We believe this small change that we propose to Bill C-9 strikes the right balance between efficiency, public confidence in judicial accountability and fairness to all parties, all while maintaining judicial independence.

Further, Ms. Conlon from the Advocates’ Society went on to say that:

The Supreme Court of Canada has also commented, generally speaking, that it is a constitutionally protected right that administrative bodies are subject to review.

This act allows some review, but the concern of The Advocates’ Society is that it is inadequate review because of the test for leave at the Supreme Court of Canada. If we look at the statistics of the number of cases that leave has been granted over the last decade, it is in the range of about 8%, which means that 92% of the cases are declined. Most of the cases that are accepted are actually criminal law cases. If we narrow that further to administrative law, which is what this would be, it is even less.

The concern is that the process, effectively, is all internal and it eliminates, in practice, an adequate level of external judicial oversight. We’ve seen a number of cases where the decisions of the Canadian Judicial Council are overturned within the Federal Court system. It is possible to get it wrong without actually meeting the test at the Supreme Court of Canada for leave.

So here, under the new system, without having the appeal as a right to the Federal Court of Appeal, there can be decisions that are wrong and that do not meet the test and have no ability to be externally reviewed. That goes to concerns around the tenure of judges, which is about judicial independence, but it’s also about the public’s confidence in the system. If it’s all internal and not externally reviewed by that objective measure, then we question the issues raised as relating to accountability and public confidence in the system.

I then asked her about their written submission under the title “Bill C-9 Would Make the CJC an Outlier among other Administrative Bodies.” Ms. Conlon responded:

We found a number of examples where the right of appeal is to the Federal Court of Appeal. For example, many of the law societies have that, but we were unable to find any example where the only right of appeal was to the Supreme Court of Canada, so that is where that came from. We were not able to locate any other administrative body where the right of appeal only exists to the Supreme Court of Canada.

I wanted to end with the part about the Canadian Bar Association. . In the brief that the CBA provided to us dated March 21, 2023, they stated:

… 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. Since the CJC process does not adhere to the open courts principle and a public appeal may therefore not be available, the public can perceive it as lacking transparency. An appeal by right from the CJC’s decision offers an opportunity to shed light on the process within the CJC.

Colleagues, I know the sponsor of this bill in recent days has warned some of you against amendments to Bill C-9 because of a potential prorogue of Parliament. However, it is no longer necessary for you to consider that element because Bill C-9 has already been amended at this committee. Further, prorogue of Parliament is, of course, the sole decision of the government, and it is currently not a needed part of the process. It would be their decision. As such, I submit that you are free to judge this amendment solely on its merits without that consideration.

I ask for your support of this amendment, which I submit has been supported by considerable witnesses and evidence at this committee, to strengthen Bill C-9. Thank you.

Senator Dalphond: Is there time for a question?

The Chair: We have a list of speakers and commenters. Most of the time we have provided you with an equal amount of time to speak in support of —

Senator Dalphond: I will start by asking two questions of Senator Batters on her proposed amendment.

Senator Batters, how much time will this additional appeal process add to the whole process? Do you have any idea how much it will add in cost to the whole process?

Senator Batters: When the CBA president was asked whether this would add to potential cost or perhaps be a less efficient part of the process, his response was to say — from what I can recall — that it may add some additional cost and some additional time. However, his determination — and I believe I quoted that part — was that this was still an efficient process and necessary for the other principle of public transparency and to know that there was an avenue of appeal and that it wasn’t the case that the only court available for a judge to be able to appeal and have that security of tenure — which is very important in the whole process — would be the Supreme Court of Canada, and even that would only be granted if there was a leave granted. Of course, that would also have to pass the national interest test, which may not be granted, even if there was a fairly obvious error in fact or law.

Senator Dalphond: I may have other questions, but maybe I should comment, or go more to comments than questions, I suppose. I have a few comments to make. I don’t intend to take as much time as the sponsor of the amendment. This type of amendment is interesting, especially because I think it doesn’t fit with the intent of the bill.

Incidentally, it was ruled out of order by the Chair of the House of Commons committee, who said:

… the inclusion of the Federal Court of Appeal in the appeals process constitutes a new concept that is beyond the scope of the bill, and therefore I rule the amendment inadmissible.

The decision was appealed by some members of the group that Senator Batters is affiliated with, and the decision of the chair was maintained by a show of hands. That’s the first point.

The second point is that I’ve noticed that Senator Batters seems to be unaware of what her amendment will translate into in terms of cost and delay. Therefore, I thought I should maybe provide some information about that to the committee.

As you know, this process is designed to apply first to judges but also to persons who are appointed by Governor-in-Council and are removed, because they are people who hold office at pleasure and can be removed. One of these cases, for example, was Jean Pelletier when he was fired following a change in government. He went to the Federal Court of Appeal after the judgment of the Federal Court. That took 10 months and 14 months. That is public knowledge. You just have to look at the register of the Federal Court of Appeal to find the information. It’s public information.

For an example of a judge in current proceedings, Judge Dugré went to appeal a judgment of the Federal Court that was rendered in December 2019, and he got a judgment from the Federal Court of Appeal in January 2021, which is over 12 months later. Then I look at Justice Girouard, who went to the Federal Court of Appeal more than once. On average, it took 9 to 11 months to deal with each of his appeals.

So the answer to my first question is that this will add, by definition, about a year in delay.

The second question was about the costs associated with that. Again, I can refer to the legislation here and the experience. As mentioned before, the judge will remain paid until he is removed by a motion of both houses accepted by the Governor General, or he resigns. The judge will have at least a minimum one-year salary. On top of that, the law provides that his lawyers must be paid by the public.

We are proposing here one more year of delay and expensive legal costs to the process because we think, I guess, that the assumption is that the internal process will be so unfair to the judge that he deserves to be paid one more year and have his lawyers paid one more year and that he deserves to go to the Federal Court to have his case reviewed by other judges on top of those who have already reviewed his case on the internal appeal process. That is the perspective of the proponent. I respect it, but I don’t share it, obviously.

The next item I should mention is that this process not only adds time and cost, but it resets on the assumption that the judge will not be treated fairly by the proposed process. I haven’t heard any witness say that. One argument that was made before us a few minutes ago was about transparency. It was said that it’s needed in order to ensure more transparency in the system. I’m all for transparency. That’s why the hearing to remove the judge has to be held in public. That’s what the law provides. It’s a complex public process, and it has to be public each time it is proposed that a judge be removed. On top of that, the judge or the lawyer handling the complaint for the misconduct both have a right to appeal before the appeal panel. The appeal panel has to sit in public. So we have two levels that ensure, I would think, a high level of transparency.

There are other reasons, but I will stop there and say that this amendment is not only beyond the scope of the bill, but it’s not achieving a reduction in costs or delays or it’s not achieving anything that is necessary. Thank you.

With that being said, if the committee wants —

The Chair: Thank you, Senator Dalphond.

[Translation]

Senator Boisvenu: I’m going to ask a question so that the people who are following us can understand this debate, which is very legal.

Senator Batters, I’m trying to understand your amendment. Under the current system, if they want to appeal, judges who are tried and found guilty of inappropriate behaviour must do so before the Supreme Court. Is this currently the case?

[English]

Senator Batters: Yes, they have to. Under the current version of Bill C-9, the only process that exists is for the judge to ask the Supreme Court of Canada for leave — for permission — to be able to appeal it to the Supreme Court. Currently, the historical pattern is that the Supreme Court of Canada grants only about 8% of cases permission to appeal to them. They do not hear 92% of cases. It also has to meet the test of national interest, which would be a difficult bar to meet. If they don’t receive that, then they actually wouldn’t have any court to appeal to, only these panels, which are not actually courts.

[Translation]

Senator Boisvenu: If I understand correctly, one case in five would be eligible and could appeal to the Supreme Court. That’s the percentage you gave.

If the Federal Court of Appeal is given a role in hearing cases on appeal, will the percentage of cases received be higher than the 82% of cases that are denied at the Supreme Court? Would this allow more judges to take advantage of this right of appeal?

[English]

Senator Batters: The judges would have that right of appeal to the Federal Court of Appeal. They would be able to choose to appeal to the Federal Court of Appeal, and then if they were unsuccessful at that, they could still potentially ask the Supreme Court of Canada for leave, but again, a very small percentage of the cases are actually granted that permission to appeal to the Supreme Court of Canada. So it’s possible, yes, that more judges could try to take that additional step, but these very significant organizations — the Canadian Bar Association and The Advocates Society — say that, especially for things like judicial independence, it’s important that these judges have an actual court to appeal these decisions. After all, we’re talking about potentially removing a judge, which is a very serious step, and we want to make sure that it’s the type of process that adequately protects their rights and that the public also sees that justice to be done, and they say it’s necessary to have a court involved.

[Translation]

Senator Boisvenu: As I understand it, the Federal Court of Appeal’s criteria for receiving a case are not the same as the criteria used by the Supreme Court to make the same case eligible for the right of appeal. Is this correct?

[English]

Senator Batters: No. Without having to get permission to the Federal Court of Appeal, judges are able to receive that type of appeal at the Federal Court of Appeal level. The permission level is to the Supreme Court of Canada if they are not successful at the Federal Court of Appeal. My amendment would allow a judge, if they choose to do so — they don’t have to — to be able to, as a right, appeal to the Federal Court of Appeal, as was suggested by —

[Translation]

Senator Boisvenu: I will repeat my question, if I may.

You say that the Supreme Court of Canada dismisses 82% of cases on appeal. Is that correct?

[English]

Senator Batters: Ninety-two per cent.

[Translation]

Senator Boisvenu: Ninety-two percent. It’s even worse than I thought.

Will the Federal Court of Appeal consider the admissibility of these cases according to the same criteria as the Supreme Court? Will these criteria, if different, allow more judges to be eligible for a right of appeal?

[English]

Senator Batters: More judges would be able to take advantage of this, yes. Every judge currently, under this system, would be able to try to get that from the Supreme Court of Canada. However, as I said, the Supreme Court of Canada does not allow 92% of cases. The Federal Court of Appeal amendment that I’m trying to bring would not require that same permission. The judge would have that ability to be able to appeal to the Federal Court of Appeal level just as a right — as their ability to do that — to make sure that judicial independence and the level of public transparency are preserved. It makes sure an actual court is hearing these types of very serious cases.

Senator Simons: I have a question for our experts. I’m struggling to understand why this amendment would have been ruled out of scope in the other place. That doesn’t mean I necessarily think it’s a good amendment, but I don’t understand the argument for it not being in scope. It seems to me to be pertinent to the issue at hand. Could you explain it to me, legally? There might be a political answer to that question, but if there is a legal answer, I would like to hear it. Then I would like to understand from the experts if there is anything that is legally problematic about this as opposed to a question of efficiency.

Toby Hoffmann, Director and General Counsel, Judicial Affairs Section, Department of Justice Canada: Thank you for the question, but unfortunately we can’t answer as to why it was ruled out of scope.

Legally, and very objectively, because we gave serious consideration to what Senator Batters has proposed — Senator Dalphond referenced some jurisprudence that has resulted in delays. As counsel, we looked at the rules of court that would be applicable in these matters just to get a best-case sense of what the additional time might be. Our estimate, considering the 30‑day period to decide whether an appeal will go forward that is already in the bill — when that is included with the rules of court that would be applicable to the Federal Court of Appeal, we came out, best case, at approximately 200 extra days. Again, we’re saying that objectively. That’s not considering the possibility of interlocutory motions that might be brought in that proceeding, and it’s also not considering the possibility of a case management judge being appointed to hear additional matters. We just offer that for your consideration, from a legal perspective.

Senator Simons: How many different types of people who are not judges are encompassed by this? I do not think I understood properly that there are other categories of people who would also be encompassed by this same regime.

Patrick Xavier, Senior Counsel, Judicial Affairs Section, Department of Justice Canada: Senator, like the current regime, the judicial conduct process can be used by the Minister of Justice to determine whether a GIC appointee, other than a judge, who holds office during good behaviour should be removed from office. That’s at the discretion of the Minister of Justice.

Senator Simons: Somebody like the chair of the CRTC or the privacy commissioner?

Mr. Xavier: Yes. It includes most GIC appointees. If a GIC appointee has a removal procedure in their enabling statute, for example, if it says that they are only removable by the two houses of Parliament or something of that nature, this does not trump that. It’s an alternative in case there is no removal procedure provided for in their enabling statute.

Senator Simons: It seems to me we have court backlogs at every single level in this country, from provincial court to the Court of King’s Bench, at every level. We accept that inefficiency, apparently, without taking the very muscular steps that would need to be taken to make sure that people move through our process more swiftly. This seems a funny hill on which to die given the delays that are endemic throughout the criminal justice system and, indeed, even worse in the civil system. Sorry, that’s not really a question.

The Chair: It doesn’t have to be. Thank you.

Senator Quinn: This is my first time at this committee. I’m listening to the discussion and the logic of the discussion. I appreciate the comments that were made by the witnesses.

For a judge who has been called forward for a disciplinary hearing, who may be dismissed, if the recourse is the Supreme Court and the Supreme Court will only hear 8% of the cases, there is a high likelihood or a probability that that judge may not be heard. Does that judge not have the same rights as other folks? What I’m hearing is we’re talking about time and cost. Rights trump time and cost when it comes to an individual. I understand there is a possibility that other GIC appointments could be subject to this which, to me, underscores why rights have to trump costs and the time process. I make that comment. I am not sure if I’m hearing things correctly or not. I would look for an opinion. Do I understand the situation correctly?

Senator Batters: You are right.

The Chair: Senator Batters, you will get another turn. You don’t have to cheer on Senator Quinn.

Could I ask one question in this regard? I accept the point, and I accept Senator Batters’ articulation of the evidence. Of course, it depends on categories of cases. She pointed out about administrative law. I would be interested in knowing from either Senators Dalphond, Batters, or our officials, in the cases where judges have sought to go to the Supreme Court of Canada — which are, I think it’s fair to say, very few — what has happened in those cases? Has leave been granted for those cases to be heard?

Mr. Xavier: There has only been one case, the case of former Justice Girouard, where the allegation was that he was trying to run down the clock and time was of the essence. In his case, leave was not granted.

It is important to underscore that this bill proposes to grant the Supreme Court of Canada a new area of jurisdiction or responsibility that it does not currently exercise. The Supreme Court will be asked for the first time to be the only court providing oversight of an administrative process. The statistics that Senator Batters, The Advocates’ Society and the CBA cited about the Supreme Court granting leave really don’t apply here. This is a new area of jurisdiction. We don’t know exactly what the Supreme Court will do.

The Supreme Court is absolutely not required to only grant leave in cases of national interest. The provision through which requests for leave usually reach the Supreme Court is 40(1), which deals with requests for leave to appeal from the decisions of courts. That provision mentions public importance as one possible criterion. Requests for leave to appeal coming out of this process will reach the Supreme Court through section 40(1) of its act, which says notwithstanding anything in this act, the Supreme Court has jurisdiction as conferred by any other act conferring jurisdiction. There is not much guidance there for the Supreme Court as to how it will decide whether to grant leave.

It may take the approach used by the Federal Courts. There are a number of provisions in federal law requiring an applicant to seek leave of the Federal Court or the Federal Court of Appeal in order to obtain a court review of a particular decision. In those cases, the Federal Courts apply the arguable case test. They simply ask, prima facie, whether the applicant has an arguable case. It’s a very straightforward test and a very low bar to meet. The Supreme Court may do the same thing here. We don’t know yet. The Supreme Court will have to turn its mind to how best to fulfill these new responsibilities.

I can add for the members of the committee that when a new area of responsibility like this is conferred upon a court, it is appropriate to consult the court’s Chief Justice and ask whether the court has any practical concerns about its ability to fulfill this new area of responsibility. When we consulted Chief Justice Wagner on that, his answer was succinct and completely unequivocal. He said, “No, the court has no concerns.”

We don’t know yet what the court will do. It’s an open question. There is no reason to assume that it will treat these leaves to appeal in exactly the same way as it has treated these before.

The Chair: Thank you, Mr. Xavier. That was helpful. I think we got that point.

Senator Tannas: I have a question for Senator Batters. As you know, I’m late to this. By inserting this, are we not back to judges sitting in judgment of judges?

Senator Batters: No, I don’t believe so. The process as it exists, as I was indicating before, the disciplinary panels, are less transparent types of processes, especially in the early going. This is an actual court with a much more regimented process and that sort of thing, a much more open, transparent, public familiarity process rather than a disciplinary process, which I think is, as I have commented before, judges judging judges in a more closed fashion than this would be, certainly at certain levels of it, yes.

Senator Tannas: Thank you.

[Translation]

Senator Boisvenu: I’ll go quickly. My question is for Mr. Xavier.

If I understood correctly, in developing Bill C-9, you considered the subject of Senator Batters’ amendment. Have I understood correctly?

Mr. Xavier: If it were necessary to introduce an intermediate appeal stage to the Federal Court of Appeal —

Senator Boisvenu: This means that her amendment is in order.

If we don’t amend the bill with Senator Batters’ amendment, are we sure that the Supreme Court will allow not 8% of the cases, but at least 40% or 50% of the cases?

Mr. Xavier: As I just said in answer to Senator Cotter’s question, we don’t know exactly how the Supreme Court will react.

Senator Boisvenu: So the Supreme Court could be as restrictive as it is today? It’s a possibility?

Mr. Xavier: In theory, it will have to ask itself how to exercise this new responsibility fairly. We don’t know exactly what it is going to do.

Senator Boisvenu: We don’t know what its conclusion will be.

Mr. Xavier: That’s right.

Senator Boisvenu: Thank you.

[English]

Senator Clement: Thank you for being here. My question is for the officials. I heard your answer to Senator Boisvenu. There is no way to formally predict how the Supreme Court is going to react. I think that’s fair.

My question is around the written reasons we’re likely to be given by the Federal Court. The Federal Court of Appeal does provide more reasons. Reasons equal more transparency. Senator Batters read some of that testimony from the Canadian Bar Association. I would like to hear your comments about that. Again, in the case of the Supreme Court, there is the dismissal rate, but there is also the fact that there is not as much transparency in terms of the time it takes to write reasons. There is less time. Is the Federal Court more likely to provide transparency for the Canadian public?

Mr. Xavier: In our view, no, senator. The hearing panel and the appeal panel are designed to do their work in exactly the same way as the courts. I think it’s worth pointing out that the open courts principle, which is protected by the guarantee of freedom of expression in the Charter, applies with full force to adjudicative tribunals. They can only go in camera and issue publications bans for the same reasons that courts can, if it’s in the public interest to do so, and there’s a big body of jurisprudence that regulates what that means. They will have to provide reasons for everything they do. There is absolutely no reason to suppose that the Federal Court of Appeal can do anything that will be more transparent, more public or more open than these panels. They are very much designed to be independent adjudicators from the CJC who make decisions based on the submissions they receive, who issue reasons for those decisions and who behave in every way like courts in that respect.

Senator Clement: Not transparency, but more resources and more time to issue more detailed reasons. I’m not saying that the Federal Court of Appeal is more transparent than the Supreme Court. I’m just saying, in terms of resources, wouldn’t it be more likely that the Federal Court of Appeal would have more resources to provide detailed reasons?

Mr. Xavier: There’s simply no reason to suppose that, senator. As I said, these panels were designed to function very much like courts in that respect. There’s no reason to suppose that the judges, who are sitting judges — the judges on the appeal panel will be sitting judges, and the other members of the appeal panel will be well trained in discharging the functions of the appeal panel. There’s no reason to suppose that the reasons of the Federal Court of Appeal will be more voluminous or any more detailed than the reasons issued by the appeal panel.

Mr. Hoffmann: If I may, Senator Clement, one of the things to consider — although quantum is not necessarily determinative — you’re going from an appeal panel that has five judges to a court of appeal that has three. I hope I’m not ending my career by saying that quantum matters, but you have five judges looking at a matter on the appeal panel. That would be another peculiarity of this proposed amendment, five to three, and then if the judge, as Senator Batters said, decides to seek leave to the Supreme Court of Canada.

The Chair: Senator Dalphond, do you have any other interventions to make to wrap things up?

Senator Dalphond: I can wait and then do a wrap-up.

The Chair: Do you want to speak last?

Senator Dalphond: Yes.

Senator Batters: Normally, the sponsor of the amendment would speak last.

The Chair: If we go by quantity, he hasn’t used up very much quantity.

Senator Dalphond: I don’t know how much time we have to spend on many of these issues. They’re very interesting, obviously.

The Supreme Court has opined from time to time on judges’ removal, discipline and misconduct. I can think of two cases, Justice Ruffo from the Quebec court and Justice Moreau-Bérubé of the Court of the Queen’s Bench of New Brunswick. The Supreme Court has granted leave in cases involving judges in the past.

It had denied leave to appeal to Justice Girouard, for which the Federal Court of Appeal dismissed the last appeal saying it was an abuse of process. It would be surprising if the Supreme Court had granted leave on such a decision, considering that Justice Girouard was paid for seven years not sitting for one single day, incurred $5.5 million in legal fees, and got a pension for the rest of his life by just keeping the clock running.

That’s what prompted the Chief Justice of Canada, the Right Honourable Justice Wagner, to go public and ask Parliament and the Minister of Justice to step in and say we have to change that process; that process is leading to abuses. We have to streamline the process and provide some internal mechanisms that ensure transparency, fairness for the judge, public participation at the review committee and the public hearing committee, and to ensure that the thing is fair, proper and transparent. That’s what we have before us. The scope of this is really not only to streamline it, it’s really to prevent abuses.

I haven’t heard any witnesses who have said the proposed system will be unfair to the judge. It would be surprising if the judge has no trust in colleagues sitting in a public hearing and then sitting in appeal of the public hearings. You have two levels where judges will be reviewing what’s happening with this judge.

Senator Quinn wasn’t here, and he asked really good questions. The process intended by the bill is that if there is an allegation of misconduct of a judge, it goes to the Canadian Judicial Council. It’s reviewed first by a screening officer. From there, it goes to a review committee where there’s a layperson and judges who will review it and decide if it is such severe misconduct that it could potentially lead to the removal of office for that judge. If they come to that conclusion, it’s finished. They send a copy of the report to the complainant and the judge, and it’s going to be public. Then a public hearing will be held with a panel made up of judges — a majority of judges, further to the amendment Senator Batters introduced last week — and it would also include a layperson. This panel, made up of five people, will sit in public and hear from witnesses. The judge will have an opportunity to present his case. His lawyer will be paid by the government. Decisions will have to be rendered and made public, and the law says that reasons have to be provided.

If the judge is unhappy with the decision made by the majority of judges, he can appeal to the appeal level, which is the next level. It was intended to be made up of five judges, and now it’s going to be made up of three judges, one lawyer and one layperson. Again, a majority of judges will sit in appeal from this other majority of judges to decide if that judge was treated properly, if his rights were respected and if everything was done properly. Then that decision has to be made public, and the reasons will be made public. Throughout the whole process, the lawyer will assist the judge and be paid by the government.

From there, if the judge is still unhappy, he could seek leave to appeal to the Supreme Court. How many will be granted leave to appeal? Nobody here has a crystal ball, but we know the Supreme Court is always interested in questions that raise interesting constitutional issues. When a judge is removed, you are dealing with sections 95, 96 and 99 of the Constitution. They are exceptional cases of consensus.

As I said, in the case of Justice Girouard, the Supreme Court refused to grant leave to appeal because the Federal Court said, “You’ve been before us three times; that’s enough. This has been going on for seven years, and you are abusing the process.” The Supreme Court said, “That’s enough.” The day of the decision that leave to appeal was denied, he resigned, because the next step was a request to the ministers to present a motion before the Senate and the House of Commons to have him removed. He thought that was enough. By then, he was fully vested in terms of pensions benefits, which he was not the year before. On top of that, his lawyers, as I said, had fees of $5.5 million that were paid. It was a free run, to a certain extent.

The new system will prevent that but will ensure the judge has gone through a process where there’s a majority of judges at three levels: the review committee, the public hearing committee and the appeal committee. If I can say something serious that everybody will understand: nobody else in Canada enjoys similar protections. Nobody. Not ministers, not deputy ministers, not GIC appointees. It’s a process designed to preserve judicial independence and to make sure that only in the most unusual situations it may lead to removal.

This is what has been proposed. This is what the judges have accepted, including the associations of judges that said so before the House of Commons in their letter. In their recent letter, they’ve changed their view. But so far, that was the view of the council and the judges through their associations.

I still believe this is a process that is very fair to judges. Adding another level is showing distrust for all the other judges and saying that judge cannot trust his colleagues who have judged him three times so far. So I say, “Bad luck. If you lost three times, I think they’re probably right.”

Go to the Supreme Court, and if it’s a new case, most likely the first one will end up giving leave to appeal because it’s a new process. As was pointed out by Mr. Xavier and the officials, it’s a new process where judicial review is being conferred exceptionally to the Supreme Court. That’s a case where leave will be easier to obtain because it’s not usual practice. Usual leave, you have two chances. Now it’s, “Bad luck.” Quite frankly, I think this is designed to protect the judge as much as possible.

On top of that, if the Supreme Court refuses leave to appeal, the judge is still not out of business. The minister has to take the decision of the appeal panel, the recommendation that the judge be removed, and then decides whether or not he should remove the judge. The minister could say, “No, I think the whole thing wasn’t fair enough. I’m not going to do it.” If the minister says yes, then the Parliament, both houses, could say no. The House of Commons could say no or the Senate could say no.

Quite frankly, I don’t know how much protection you can give to somebody, but I would say that, through that system, a judge will get the top protection that you can get in Canada.

The Chair: Senator Batters, a brief response to wrap things up? I wonder whether, in this response, you could answer a question that, in a sense, Senator Dalphond alluded to. In the discussion of amendments, you have embraced — I think with enthusiasm — some suggestions that were advanced by Professor Devlin in the process. One of the things Professor Devlin articulated was that the level of protection for judges in this process is highly significant and substantial, as Senator Dalphond just pointed out, compared to others, and I would say in a certain way critiqued the substantial nature of this. You’ve been a bit of an endorser of Professor Devlin’s views, but you actually seem to go the opposite way on this. Could you speak to that in your summary, to help me out?

Senator Batters: Sure. Dealing first of all with that, I feel that, on this particular part — partly because of the layperson’s amendment that I proposed last week and that was accepted — we do now have laypeople on all of those different panels. Some expressed concern that that could detract if there are questions of law or things like that. This, then, having a Federal Court of Appeal, being able in actual court, if a judge so chooses to hear their case, it allows that court to determine those issues and matters of law.

Yes, I acknowledge that a judge does have quite significant protections. That probably also goes to show why there has never been a case where a federally appointed judge has actually been removed in Canada. It’s gone to the brink, but then that judge has resigned.

What is really important and what I focused on in my remarks dealing with both the very significant testimony we received from the Canadian Bar Association president, again representing a very significant organization — I don’t recall the president ever coming here and advocating for such a substantive amendment — and The Advocates’ Society is talking about the necessary part of having public confidence in the integrity of the judicial discipline system. That is probably one of the most important parts: that the public, who is judged by judges, sees this justice to be done in a process that is not just a panel but an actual court. That would be my response to that.

I have a few other comments in response to different senators who made interventions.

First of all, regarding the comment that the House of Commons committee chair found this — I don’t even know necessarily if that amendment was exactly the same as mine because I certainly —

The Chair: Can I interrupt you there? I don’t think Senator Dalphond went so far as to raise a point of order, so I don’t know that you have to address that.

Senator Batters: No, but I wanted to in case anyone has any question about it.

Briefly, I wanted to say that, when asked about it, the Department of Justice officials could not provide an answer about a legal requirement or basis for that particular stage to declare it beyond the scope of the bill. In my view, that tends to lend itself to the idea that there is not a legal reason for it, but perhaps that was done for a political reason. I don’t know. I’m not sure if that’s the exact same amendment that I proposed.

I would like to note a few other things. As I said in my opening remarks, with regard to preserving efficiency, I think many things in this bill are very good. The need for greater efficiency in this process is a good thing. However, what Bill C-9 has done and what my amendment preserves is that the one significant level of court, the Federal Court, would still be eliminated in the process that currently exists. We would not have the potential three levels of court. The Federal Court would be eliminated and only the Federal Court of Appeal would remain.

Senator Simons made a comment about court delays. I want to make it clear that this part of the judicial disciplinary process would go to the Federal Court of Appeal, not to the Court of King’s Bench or to any provincial courts. By far, for the greatest number of criminal court delays that exist in the system right now — which is a major problem — that is where those delays happen. I wanted to make sure, and I thought you probably understood that, but in case anyone watching this or anyone around the table wasn’t sure about that, this certainly wouldn’t add to court delays.

With respect to the officials, the very capable official Mr. Xavier provided testimony about the Supreme Court of Canada and the likelihood that the Supreme Court of Canada may hear some of these appeals. He’s a very precise man. He noted three times in his answer that we don’t know what the Supreme Court of Canada will do on such a thing. When Senator Boisvenu questioned him, he repeated that.

The Government of Canada deliberately decided not to give a Supreme Court of Canada appeal as of right in this bill. Senator Clement asked about the ability for this court to render a decision. I submit that that has significant precedential value as well — not just a panel, even a fairly formal panel, but an actual court — especially in determining matters of law that may come out of these types of things.

At the end of this, I see the public confidence in the judicial disciplinary process as the most important part of this type of amendment, so I ask for your support.

The Chair: Thank you.

It is moved by Senator Batters that Bill C-9 be amended in clause 12, at page 14, at line 5 — may I dispense? We’re okay without reading the amendment again? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chair: Recorded vote.

Mark Palmer, Clerk of the Committee: The Honourable Senator Cotter?

Senator Cotter: No.

Mr. Palmer: The Honourable Senator Batters?

Senator Batters: Yes.

Mr. Palmer: The Honourable Senator Boisvenu?

Senator Boisvenu: Yes.

Mr. Palmer: The Honourable Senator Clement?

Senator Clement: No.

Mr. Palmer: The Honourable Senator Dalphond?

Senator Dalphond: No.

Mr. Palmer: The Honourable Senator Jaffer?

Senator Jaffer: Yes.

Mr. Palmer: The Honourable Senator Klyne?

Senator Klyne: No.

Mr. Palmer: The Honourable Senator Pate?

Senator Pate: Yes.

Mr. Palmer: The Honourable Senator Quinn?

Senator Quinn: Yes.

Mr. Palmer: The Honourable Senator Tannas?

Senator Tannas: Yes.

Mr. Palmer: The Honourable Senator Simons?

Senator Simons: No.

Mr. Palmer: Yes, 6; no, 5.

The Chair: The motion in amendment is carried. The amendment is adopted. Shall clause 12, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clause 13 carry?

Senator Batters: On division.

The Chair: Shall clause 14 carry?

Senator Batters: On division.

The Chair: Shall clause 15 carry?

Senator Batters: On division.

The Chair: Shall clause 16 carry?

Senator Batters: I have a second amendment.

The Chair: This is an amendment proposed by Senator Batters C9-16-25-28. If you want to move it, Senator Batters, and we’ll have, if needed, a brief discussion.

Senator Batters: I propose:

That Bill C-9 be amended in clause 16, on page 25,

(a) by replacing line 23 with the following:

“16 (1) If a report made under section 65 of the”;

(b) by replacing lines 28 to 30 with the following:

“after that day, appeal the report to the Federal Court of Appeal.

(2) If leave to appeal a decision of the Federal Court of Appeal made on an appeal under subsection (1) is granted by the Supreme Court of Canada, section 138 of”.

This is a companion amendment. It’s two separate amendments because in clause-by-clause at committee, the previous one was under section 12, and we need a different amendment as this is under section 16 that really goes along with it. If it were being done in the chamber, I would be able to bring it all together as one amendment. Because we’re doing this clause by clause, it needs to be done in two separate ways.

All of the reasons I gave before and all of the discussion apply to this as well. I ask for your support because it could be a strange thing if the first one is passed and then this small amount that’s left at a later stage of the bill was not passed.

Senator Dalphond: This amendment should be adopted on division. I oppose, and I think the vote will be the same, so we can save time.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment, on division? Shall clause 16 carry, as amended?

Hon. Senators: Agreed.

The Chair: Shall clause 16 carry, as amended?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill, as amended, carry?

Hon. Senators: Agreed.

The Chair: Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of these amendments adopted by the committee, including updating any cross-references and renumbering of provisions?

Hon. Senators: Agreed.

The Chair: Does the committee wish to consider appending observations to the report?

Is it agreed that I report the bill, as amended but without observations, to the Senate?

Hon. Senators: Agreed.

The Chair: We’re in a position, colleagues, to move past Bill C-9 and to continue our hearing with witnesses. Let me thank Mr. Xavier, Mr. Hoffmann and Ms. Azimi for joining us and assisting us in our deliberations today.

We’re now moving to consideration of the subject matter of those elements contained in Divisions 30, 31, 34 and 39 of Part 4, let me just say “et cetera,” of Bill C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023. Specifically, today, we are continuing consideration on the topic of elements in Part 4 of Division 30.

We are joined today, all by videoconference, by four witnesses. Two are from the Canadian Association of Chiefs of Police: Rachel Huggins, Co-chair of the CACP Drug Advisory Committee, and Michael Rowe, member of the CACP Law Amendments Committee. We are also joined by Jonathan Noonan, Lawyer, Noonan Piercey; and Jean-Pierre Larose, Chief, Nunavik Police Service. Thank you to all of you for joining us today, and apologies for a bit of a delay in getting under way.

I’m going to invite representatives of each of you to speak for five minutes, to be followed by questions and discussion with my colleague senators on the committee. Ms. Huggins, please proceed.

Rachel Huggins, Co-chair of the CACP Drug Advisory Committee, Canadian Association of Chiefs of Police: Good afternoon and thank you for the opportunity to address the committee on behalf of the Canadian Association of Chiefs of Police.

Our association supports the government’s action to amend the Canada Post Corporation Act to guard against dangerous drugs like fentanyl and other opioids, weapons, counterfeit goods like fake medicine and many other types of contraband from travelling through the postal system as letter size and parcel items.

This issue is long-standing for law enforcement. Following research and consultations in 2015, CACP resolution number 8 called for the government to provide police with the ability to obtain judicial authorization to seize illicit drugs, weapons and counterfeit items from the mail. Too many criminals are exploiting the current loophole in the legislative framework, making large profits using Canada Post to commit criminal acts and putting Canadian lives at risk.

Currently, police are unable to lawfully obtain a judicial authorization to search and seize items that are in the course of post. For example, if police have reasonable grounds to believe that a package of fentanyl or a prohibited weapon is being sent through the mail, the police cannot lawfully detain or search the letter or package until it has been delivered to the addressee. Only a postal inspector working independently of the police investigation can intercept the item. The Canadian Association of Chiefs of Police believe that Canadian laws must be modernized and include the necessary judicial oversight to protect privacy and safeguard citizens from harmful materials being trafficked through the postal system.

While the CACP supports changes to the Canada Post Corporation Act through Bill C-47, the proposed amendments do not go far enough. The current Bill S-256, Canada Post Safety Act, proposes to amend section 40(3) and section 41(1) of the Canada Post Corporation Act to address the public safety and public health consequences of dangerous goods in the post.

To expand on elements of Bill S-256, I now invite my colleague, Inspector Michael Rowe, to address the committee.

Michael Rowe, Member of the CACP Law Amendments Committee, Canadian Association of Chiefs of Police: Thank you.

Bill S-256 addresses the restrictions that prevent postal inspectors from opening letter mail weighing 500 grams or less. It is important to know that 30 grams of fentanyl, which can fit easily in a letter-sized envelope, could contribute to 15,000 potentially fatal overdoses. The government addressed the issue of small packages containing dangerous substances under Bill C-37 by providing customs officers with the powers to inspect international mail weighing 30 grams or less.

Bill S-256 proposes to provide police with the ability to conduct judicially authorized searches and seizes of parcels or letter-sized items in the mail believed to contain dangerous substances like fentanyl or illegal firearms. Any detention or search would be subject to the same judicial oversight already required by law in situations outside of the course of post, using existing search warrants. Further, this is an authority already available to law enforcement in cases involving packages sent by private courier services like FedEx, DHL and even Purolator, which is owned by Canada Post.

Bill S-256 also proposes to amend the interpretation section of the Canada Post Corporation Act to include a definition of enforcement statute, which would encompass three tenets: A., an act of parliament, B., the law of province, or C., a law or bylaw made by a council, government, or other entity that is authorized to act on behalf of an Indigenous group, community or people that hold rights recognized and affirmed by section 35 of the Constitution Act of 1982. This definition is very important as it empowers all communities which rely on Canada Post.

The aim of these proposed amendments is to allow law enforcement to conduct judicially authorized searches and seizes. Canadians’ expectation of privacy in the mail will be enhanced and not reduced by these proposed amendments, and a statutory loophole that unjustifiably prevents police from fully assisting Canada Post inspectors and customs officers in enforcing the law will be closed.

The proposed amendments under Bill S-256, coupled with providing Canada Post inspectors with the power to open any mail if they form reasonable grounds to suspect as proposed under Bill C-47, section 509, together will provide tools for law enforcement and postal inspectors to keep communities safe.

Thank you for your time and the opportunity to speak about this important issue.

The Chair: Thank you both. I now invite Mr. Noonan to address us.

Jonathan Noonan, Lawyer, Noonan Piercey: I was counsel for Christopher Gorman, a gentleman in St. John’s, Newfoundland, who had a package that was searched by a Canada Post inspector, and it was found to contain two kilograms of cocaine. We challenged the constitutionality of section 41 of the Canada Post Act, and the judge agreed that it didn’t comply with section 8 of the Charter because it didn’t have an objective threshold in it. It allowed a postal inspector to search a package without requiring the inspector to have either a reasonable suspicion or reasonable grounds.

In our criminal justice system, we always need to have an objective threshold to prevent arbitrary searches by police that are based on grounds that are not objectively verifiable. That is standard throughout the case law and throughout the Criminal Code. It is either reasonable suspicion or reasonable grounds. Basically, the more intrusive the search power, the higher the onus needs to be on police in terms of having reasonable grounds as opposed to reasonable suspicion.

A good example would be a Breathalyzer. In an impaired driving investigation, police only need a reasonable suspicion for an approved screening device demand, to ask someone to do a roadside test, because it’s a minimal intrusion on their freedom. However, they need reasonable grounds to ask someone to accompany them to the police station to provide a sample of their breath through a Breathalyzer machine. Similarly at an airport, a sniffer dog, on reasonable suspicion, can approach a bag, but you need reasonable grounds to open that bag.

There always has to be some sort of objective threshold, which does three things. It prevents arbitrary decisions by police or people in authority, prevents them from arbitrarily picking out packages and opening them with no justifiable basis, which could lead to bias, discrimination and different abuses of power. It provides a uniform standard which the public can base their reasonable expectation of privacy on. The third thing it does is it provides courts with a threshold to evaluate whether or not there is an objectively reasonable basis to provide a search.

This particular bill proposes reasonable suspicion. The prior statute had no requirement at all, no threshold at all. From the criminal defence point of view, our business is trying to keep the state as far away from our clients as possible, so we would always prefer reasonable grounds, which is a higher standard. However, those decisions are not made by us, and certainly reasonable suspicion is one of the options that is available to Parliament to address this issue.

Thank you.

The Chair: Thank you, Mr. Noonan. I now invite Chief Larose to address us.

Jean-Pierre Larose, Chief, Nunavik Police Service: Good evening. Thank you for this opportunity.

I am the police chief of Nunavik Police Service. The Nunavik region is made up of 14 Inuit communities located north of the fifty-fifth parallel in the province of Quebec. In total, just under 14,000 Inuit live there. Covering an area of 500,000 square kilometres, the territory of Nunavik is immense and is mainly composed of Arctic tundra. The Nunavik Police Service operates police stations in the 14 communities, each isolated from others except by sea and air. NPS headquarters are based in Kuujjuaq. In total, the NPS is made up of approximately 80 police officers and 8 civilian members.

The context in which police officers in Nunavik operate is particular and complex: social problems, different language and culture, omnipresence of firearms, isolation, et cetera. In addition, in the majority of police interventions, the citizens involved are under the influence of alcohol and drugs. In 2022, over 90% of crimes committed in Nunavik involved the consumption of alcohol and drugs.

Being a real problem in Nunavik, some Inuit communities have adopted municipal laws to manage the flow of alcohol in their communities. In total, 13 communities have adopted these municipal bylaws in order to minimize the impact and harmful effects of alcohol on their population. All alcohol orders need to be authorized by a police officer or a bylaw officer of the community.

In order to outsmart the police and have unlimited access to alcohol, each community will have their own bootleggers. Those bootleggers have links and ties with people in Montreal’s organized crime area that will ship them legal alcohol, and they will resell it illegally in Nunavik at high prices.

There are four methods for bringing contraband products to Nunavik. The first is by sea during the summer period. However, this method is little used by traffickers since it takes place over a period of only four months. The delays are long and the costs staggering.

The second is by air, with mules. Often, Nunavik Inuit travel to Montreal for medical reasons. The supplier will meet the Inuit in a place in Montreal and give him drugs and alcohol so he can take it back in his suitcase. With the plane tickets being paid by the health centre, the cost is minimal for the trafficker and the risk is entirely taken by the Inuit who puts himself at risk, in particular because of the security and search points at Montréal‑Trudeau Airport.

The third is airline cargo freight. Contraband parcels are often sent to Nunavik by air cargo. However, the shipping costs are expensive. The supplier must go to the airport to ship the packages. Also, the airline requires an identity document to confirm the shipment. There is a lot of risk for the supplier.

The last method of shipping contraband parcels to Nunavik, and the most used is, obviously, by mail. The vast majority of traffickers use the postal service to ship contraband parcels to Nunavik territory. It is the lowest cost for shipping, low risk, no ID required, and shipping address is not validated. The senders take minimal risk. There are also several drop-off points for shipping packages. This is the easiest and safest method for traffickers, and the police have no power to seize a parcel shipped by Canada Post even if we have enough intelligence gathered to obtain a warrant.

Every day in the 14 communities of Nunavik, several parcels of alcohol and drugs are sent for resale. The majority of liquor packages shipped to Nunavik are made of Smirnoff vodka of different sizes. Sometimes other types of hard liquor are shipped, but over 95% of the parcels are filled with Smirnoff vodka. Those illegal bottles will be resold in Nunavik within a few minutes. An illegal parcel of 24 bottles of 374 millilitres, a 10‑ounce mickey of Smirnoff, can be easily sold in the same evening even if the price is very high. The price of an illegal bottle of alcohol on the black market in Nunavik is $100 for a mickey, $250 for a bottle of 750 millimetres, $400 for a bottle of 1.14 litres, and $600 for a bottle of 1.75 litres, all of Smirnoff vodka.

These prices may vary depending on several factors. For example, during the holiday season when demand is higher, resellers in Nunavik will increase their price in order to increase their profit and those of suppliers in the south. We can also note a variation in prices according to the communities. A liquor dealer in Salluit, the northernmost community in Nunavik, can resell a mickey, a 375-millimetre bottle, of Smirnoff Vodka for between $120 and $180. This inflation is explained in particular by the high cost of postal shipping from suppliers from the South or the price of plane tickets for mules. On the other hand, in the community of Kuujjuaq, the same bottle sells for $100 on the black market. This is explained by the presence of bars, as well as the absence of municipal laws regulating the purchase of alcohol in Kuujjuaq, which considerably reduces demand. During the pandemic, these prices also exploded. The imposition of curfews, limits on alcohol orders and fewer airline flights are all factors causing prices of bootleggers’ liquor bottles to rise. Although in general, the prices of contraband bottles are stable, it’s supply-and-demand that governs everything.

Moreover, since five years ago, we have noticed a rise of hard drugs in our territory. Cocaine and methamphetamine pills are now common in Nunavik. Like alcohol, the price of those hard drugs is massive. A gram of cocaine in Nunavik retails for $300 to $350. One pill of methamphetamine is sold for $40. The profit margin is beneficial for the organized criminals shipping those types of drugs. Like alcohol, the majority of drugs entering Nunavik are transported by postal parcels, dissimulated in toys, food or any object that can fool the police.

In June 2022, in the community of Puvirnituq, a young woman of 35 years old died from an overdose of alcohol and drugs, being cocaine and fentanyl. The presence of those drugs in our territory is a real concern for all Nunavummiut. Inuit are vulnerable to addiction, and drugs are no exception. Alcohol was our main issue, but now we are also fighting other big concerns with drugs. Unfortunately, very young teenagers and kids use their drugs, especially methamphetamine, which increases the risk of addictions.

Recent police searches and intelligence confirm now the presence of crack in Nunavik, which is more powerful than cocaine and more addictive. Shipped from Montreal area, a few times the crack will arrive already cooked, in the parcels. Most of the time, the shipper will send the cocaine only and will ask his dealers in Nunavik to cook it.

The Chair: Chief Larose, I invite you to sum up. I know a number of senators will have questions for you as we continue our discussion.

Mr. Larose: Sorry.

In conclusion, in order to support and collaborate with our police force, from November 15 to January 20, 2023, Canada Post and their investigative team conducted a pilot project. The team intercepted all alcohol parcels coming to Nunavik. During those two months, Canada Post investigators seized over 677 mickeys and hard liquor, a total of 6,500 grams of illegal cannabis and hashish. A total of $350,000 in contraband was seized.

This operation decreased criminality in Nunavik by 80% — 30% fewer suicides, no murders, no attempted murders. We received fewer calls, and the Nunavummiut were happier and happier. The impacts of bootleggers are harmful for the 14 communities, and repercussions are considerable: domestic and conjugal violence, suicide, neglect, rape, murder. Unfortunately, the figures speak for themselves. There are more police interventions in Nunavik each year than there are citizens. More than 70% of these interventions are directly related to alcohol consumption. For the suppliers of the South, the profit margin of trafficked alcohol and drugs is considerable.

If the Canada Post law can be modified to allow police officers to seize parcels coming into our territories, we could have a better impact in our communities. One illegal parcel seized by our police officer will prevent rape, child neglect, conjugal violence, suicide and murder. Our criminality depends on the number of contraband parcels entering our communities.

We are supporting Bill S-256 from Senator Dalphond and believe that this amendment would be beneficial for our police officers but mostly for the well-being of all Nunavummiut. Inuit are tired and saddened to see their communities destroyed by the damage caused by drugs and alcohol.

Thank you.

The Chair: Thank you very much, Chief.

[Translation]

Senator Boisvenu: I’ll try to go quickly to allow my colleagues to ask questions.

My question is for Mr. Larose.

In your territory, have you ever seized fentanyl allegedly brought in by Canada Post?

Mr. Larose: We haven’t seized any so far. As I mentioned in my testimony, there was a death. We found the presence of fentanyl, mixed with cocaine. Unfortunately, the person died. That’s when we discovered that there was probably fentanyl on the territory. So far, we haven’t made any seizures of pure fentanyl, but we have recently seized a lot of hashish, cocaine and pills.

Senator Boisvenu: The amendment to the Canada Post Corporation Act will no longer allow the seizure of envelopes weighing less than 500 grams, among other things. Is this of great concern to you?

Mr. Larose: Absolutely. We’re seeing more and more drugs arriving in packages concealed in other packages. It’s another subterfuge by organized crime to facilitate the transport of drugs.

Senator Boisvenu: Like those who appeared before you, you support Senator Dalphond’s bill, which would amend the Canada Post Corporation Act and offer the possibility of seizing envelopes weighing less than 500 grams. Is that right?

Mr. Larose: Yes.

Senator Boisvenu: Thank you, Mr. Larose.

[English]

Senator Dalphond: I will not take my few minutes to ask questions of the two police officers. Thank you for your support for my bill, and I won’t ask for more.

My question is rather directed to Mr. Noonan. You saw the amendment proposed in Bill C-47 to say that section 41(1) of the Canada Post Act will read, “The corporation may open any mail, other than a letter, if it has reasonable grounds to suspect that …” You say with the addition of these words, “has reasonable grounds to suspect,” that will meet the applicable constitutional criteria. I agree with you, and I have proposed similar amendments to the Canada Border Services Agency Act. Would you agree that this will also be the case if we are going to remove “other than a letter” so the corporation may open any mail, including a letter, if it has “reasonable grounds to suspect that …”?

Mr. Noonan: Sorry, I understand that it’s reasonable grounds to suspect that it contains non-mailable matter. As long as they have reasonable grounds to suspect, it applies to any package, really, that they would open. I would think that would comply with section 8, so it would be constitutionally viable. I’m sorry if I didn’t answer your question.

Senator Dalphond: Well, you are very close to answering my question. The way it’s drafted now, you say it is constitutional, but the way it’s drafted now does exclude letters. It will apply to what are called “parcels.” But if we were to remove the word “letter,” do you think it will still meet the constitutional requirement? The same constitutional requirement will apply to both parcels and letters, I suppose.

Mr. Noonan: I apologize. In what I have gotten, I haven’t seen that. I also haven’t seen the under-40 grams, which I’ve heard been talked about already. I’m assuming there are lesser grounds required to open a letter.

I would, frankly, have concerns that that would not be constitutionally viable because it opens the door to the arbitrary opening of letters. It could be bank documents or wills. There are innumerable types of things that could be contained in a small letter that someone would have a strong privacy interest in.

I apologize if I’ve not answered it, because I don’t believe I have that in the materials I’ve been given.

Senator Dalphond: I’m sorry that you don’t have a copy of the bill.

My next question is for the other witnesses. If we’re going to remove the word “letter,” that will empower the inspector at Canada Post to open parcels and letters — a letter being a parcel that is less than 500 grams — where fentanyl is being delivered. Will that help you, or is that not enough? My bill addressed the power of the police to be authorized by judicial authorization to intercept the mail. If we were, for the time being, adding power to inspectors to inspect letters, if they have reasonable grounds to suspect that they carry fentanyl, for example, and they use sophisticated scanning machines to do that, would that be helpful to you?

Mr. Rowe: If I may answer, currently at this time, just to clarify, postal inspectors and the police do not have any powers to search letters. Letters are very separate than packages. It’s based on grams in a description of Canada Post Corporation Act regulations. Currently, there are no powers to search letters, which is based on very antiquated case law when there wasn’t a large concern about utilizing envelopes or letters in order to traffic contraband. However, as we’ve established here, with fentanyl, due to its chemical structure, a tiny amount can have a dramatic impact on communities. Sir, I definitely agree with you that including the ability in all amendments moving forward for police or postal inspectors to be able to search both packages and letters would have a significant impact on community safety across Canada and the ability of law enforcement, both postal inspectors and police, to be able to investigate crimes where Canada Post is being used to traffic contraband.

The Chair: Could I invite either Chief Larose or Ms. Huggins to provide one additional brief comment?

Mr. Larose: I totally agree with Michael. With the form right now of fentanyl coming in, it could easily be put in an envelope, as well as pills. There’s shatter, a new type of drug also. It’s really easy to put those kinds of drugs in a small letter size, so we need that to be included.

The Chair: Thank you, Chief Larose. Ms. Huggins, any further comment?

Ms. Huggins: I would just say that this is already the case under Bill C-37. My colleague Michael Rowe mentioned that. This proposal to remove the letter aspect would actually align with provisions that are already in place under Bill C-37 for officers at the border where they can open small packages under 30 grams.

The Chair: Thank you.

Senator Batters: My questions are to the Canadian Association of Chiefs of Police, however you want to respond to this.

First, I want to thank you for your presentation. For you to draw to our attention that 30 grams of fentanyl, which can fit in a letter-sized envelope, could contribute to as many as 15,000 potential fatal overdoses is alarming, and that context is important.

This is something that certainly has been in the news for quite some time. I’m wondering if your organization was consulted in the development of these provisions of Bill C-47 by the government.

Ms. Huggins: Thank you for the question.

We were not consulted under the provisions for Bill C-47. However, we did work with Senator Dalphond on Bill S-256.

Senator Batters: Right, on his senators’ public bill. I’m wondering what has been the rationale or justification by the government for excluding letters from this section.

Mr. Rowe: I could address this. The exclusion of letters seems to be, as I mentioned before, based on very historical case law regarding privacy related to letters versus privacy related to packages. Letters were believed to have a higher level of privacy. However, as my colleague Rachel mentioned, this has already been addressed regarding international mail at the border, where previous amendments have allowed for Canada Border Services Agency officers to intercept both packages and letters. I believe what we’re discussing here today gives us the opportunity to modernize the ability of postal inspectors and police to be able to inspect letters domestically as well.

Senator Batters: Thank you. Given that the Association of Chiefs of Police resolution was published in 2015 and the law was deemed to be, as you say, antiquated in 2019, it’s unfortunate it has taken the government so long to act on that, and now this still does not contain domestic letters in it.

As you have noted, Bill S-256 provides more necessary tools for post inspectors, but as you may know on this, Senate public bills are not dealt with as expeditiously as government bills, and that’s actually amplified here because this bill we’re studying today is a budget implementation act, which no doubt the government will be trying very hard to put through both houses of Parliament — the Senate and the House of Commons — in the next few weeks. The Senate public bill, Bill S-256, has a much longer time frame. Of course, it started in the Senate. If it passes the Senate, it would then have to go to the House of Commons and pass there as well. There’s always a risk that before that bill can come into effect, perhaps there’s an election or prorogation or something like that, and then the bill would potentially die on the Order Paper.

I’m wondering why not try to expedite that process and have good parts of that bill put into this and make this a more effective amendment. Would you like to see the provisions proposed in Bill S-256 incorporated into this bill as an amendment? From a public safety perspective, how important do you think it is that police are given these powers as quickly as possible?

Mr. Rowe: Yes, I would certainly agree with you that as expeditiously as possible we could deal with this would be very beneficial to all police across Canada.

Just to clarify, currently police officers in Canada do not have the ability to search or seize packages that are in the course of post. It’s only postal inspectors that are able to intercept those. I can attest, having been a police officer involved in investigations of organized crime and drug trafficking for a lot of my career, that Canada Post is often used to traffic drugs and even firearms parts used to produce privately made firearms.

It’s very challenging for police to try to investigate packages that are in the course of post because we have no legal recourse to be able to search and seize those and confirm in fact that the items we have grounds to believe are controlled substances or dangerous contraband and to confirm that it actually is. We’re not even able to obtain a warrant to be able to search those packages and introduce some judicial oversight into that process. The importance of Bill S-256 is key in that it would introduce that judicial oversight. It would allow us to go out and seek warrants to be able to search packages that are in the course of post. It would allow postal inspectors to continue to do their important work as well after they’ve developed the reasonable grounds to suspect there’s non-mailable material in both packages and envelopes.

From the point of view of police across Canada, both of these amendments are very important. Both of these proposals are very important. For lack of better words, we’re currently hamstrung in our ability to investigate packages and letters that are in the course of post.

Senator Batters: Thank you.

Senator Simons: I want to follow up with Mr. Rowe. How well do policing services and postal inspectors coordinate? I’m just curious. Do you think there are enough postal inspectors? Do they need to be better resourced? Do we need to improve the way that police and postal inspectors can coordinate their investigations?

Mr. Rowe: Thank you for the question.

As I’ve said, I have quite a bit of experience in this field. I can honestly say regarding all the postal inspectors I’ve worked with that I’ve always been impressed with their professionalism and their investigative credentials. They have always been excellent to deal with.

However, it is very challenging to introduce another investigation agency into your investigation. For example, if the Vancouver police and I are investigating a file that involves Canada Post, I would have to involve a postal inspector who might not be posted in our city and who might not be here. They would, then, have to conduct their own separate parallel investigation, which creates a number of challenges for our prosecutions down the road, the least of which involve disclosure or the potential for challenges when it comes to merging those two investigations together.

For us in the police, Canada Post also has a number of regulatory duties that I know keep them very busy as well. For the police, it would be very beneficial for us to be able to seek judicial authorization, search warrants and be able to execute those on items in the course of post. Naturally, if we were executing search warrants on items in the course of post, we would still continue to work closely with our partners at Canada Post during those investigations.

Senator Simons: The test to get a search warrant is significantly higher than reasonable suspicion; is that correct? Isn’t it reasonable grounds?

Mr. Rowe: Yes, it would be reasonable grounds, but for police to achieve that additional grounds required for a judicial authorization is often beneficial for police because it helps to insulate our investigations against Charter challenges in the future and helps to increase the viability of prosecution.

Senator Simons: Mr. Noonan, when we were dealing with Bill S-7 a few months ago, the government attempted to introduce a new test of “reasonable general concern.” The Senate pushed back quite hard against the idea of establishing a “reasonable general concern” test. For you, if this were to encompass the opening of regular mail where, as you’ve said, traditionally, there are many more protections because of privacy concerns, what test do you think would be appropriate?

Mr. Noonan: I would suggest that reasonable suspicion would certainly be the lowest available test.

To answer the question — not to speak for Mr. Rowe — but I think if police had warrants, they would have a higher standard, but they would have more information to support the warrant based on confidential informants, surveillance and things like that than a Canada Post inspector. This bill authorizes an inspector who has reasonable suspicion to open a package. If they do and see contraband, that will help the police formulate their reasonable grounds to get the warrant. So I wouldn’t see that as being so much as an impediment.

I’m not familiar with the reasonable general concern, but to me, that would be extremely vague. I would have great concerns about the constitutional integrity of that type of language. Traditionally, in the case law from the 1980s and onward, we’ve seen “reasonable suspicion” and “reasonable grounds.” “Reasonable general concern” would suggest less objectivity. That would be my concern from a defence perspective.

Senator Klyne: I have a few questions, and the first one is for Chief Larose. If I understand correctly, you have not seized any contraband, particularly as it relates to the postal service. I assume that’s because of your “legal handcuffs,” if you will. I assume you’ve seen a heightened change in health and safety in your community with regard to the list of contraband you cited. It seems to be quite a heightened concern that you would probably like to deal with. Can I assume that Canada Post does not have any inspectors in your region? If they do, are they collecting or seizing any of the contraband?

[Translation]

Mr. Larose: In our region, there is no inspector. We have to work with the Montreal inspectors. We occasionally help them with operations. However, on the Nunavik territory, there are no inspectors.

[English]

Senator Klyne: This bill would be an aid in your quest to want to control some of that contraband coming into your community. Can it do it on its own — the budget bill, Bill C-47 — or do you think Senator Dalphond’s bill is required to make it a whole?

[Translation]

Mr. Larose: It is absolutely necessary. As for inspectors, it’s clear to us that there aren’t enough, especially in Montreal.

As you know, all the contraband we inspect is examined from Montreal, and we’re able to identify packages going to Nunavik and Nunavut as well. Currently, there are only two inspectors in Montreal to do the job.

[English]

Senator Klyne: Ms. Huggins, in 2019, Maclean’s published an article entitled “For fentanyl importers, Canada Post is the shipping method of choice.” The article quoted an Ontario man who ordered fentanyl on the dark web as saying that Canada Post is almost a 100% surefire way to beat the cops. Does a comment like that put a higher sense of urgency on the passing of both bills, Bill C-47 and Senator Dalphond’s Bill S-256?

Ms. Huggins: Thank you for the question.

Yes, most definitely. I think the Maclean’s article and a number of other kinds of announcements and things we hear in the media about the impacts of drugs in Canada Post and going through the mail means that we have to take action right now. The bill really does provide a complete perspective for law enforcement. It protects the public and their privacy, and at the same time, it provides all law enforcement with the tools they need. And of course, Bill C-47 provides the ability for the inspectors to do that front-level job. We know there are only a certain number of them, but on the inspection side, because they’re looking for non-mailable materials, and giving new tools to police, we will begin to address the issue of drugs in the mail. It’s also other contraband materials. We’ve got issues with guns and drugs. Remember, in Canada Post, I believe 500 grams is a letter size, so small even pieces of gun materials can be shipped in letter format. Combining these two pieces of legislation would be the most efficient and effective way to addressing the issues you’re hearing today.

Senator Klyne: Thank you.

Senator Pate: Thank you to our witnesses.

I have two questions, one of which is for Mr. Noonan. I’m curious whether you have any particular views about the placement of this in the budget act, which makes it, from the start, more challenging to potentially amend in some of the ways that have been suggested.

My second question is for Chief Larose. I think it was you who mentioned that other forms of couriers and that sort of thing can be subject to search. When I was last up North, there was a lot of talk about how Amazon Prime is used by many folks to get all kinds of things up North, both legitimately and perhaps not. What’s the situation? Is that treated the same as a courier company?

Mr. Noonan: I’m content if Ms. Huggins wants to answer. Unfortunately, I’m not familiar with the constraints that may be at play with the budget act. Maybe Ms. Huggins can answer that.

Ms. Huggins: I would have to say that given my time in the federal government, you’re right that there are sometimes difficulties combining a Senate bill and a bill like this one — a budget bill. Given the importance of the issue and the fact that the Senate bill has made advancements and there has been quite a bit of consultation, I think that it would be efficient to combine them and move it forward.

Mr. Rowe: I mentioned in my earlier discussion about the private courier services. With the private courier services, we are able to execute judicially authorized search warrants on packages that are within those services. There are a number of investigative benefits to being able to intercept a package between the point of origin and the point of delivery, which are benefits that we are able to utilize with courier services.

As far as Amazon Prime, my awareness of that is that if Amazon doesn’t have delivery services in a specific area, they will often default to Canada Post in order to deliver those packages. In a lot of remote areas in British Columbia — I can’t speak for up North — the Amazon Prime packages, past a certain point, default into the Canada Post system and therefore become inaccessible to law enforcement once they enter into that course of post.

The Chair: Chief Larose, can you speak to the question about Amazon Prime in Nunavik?

[Translation]

Mr. Larose: Indeed, as Mr. Rowe mentioned, it’s very expensive to have parcels delivered to Nunavik by private courier services. As I was saying, there’s cargo shipping. This service is also very expensive. So the majority fall back on Canada Post, because it’s easier.

It’s illegal to have alcohol delivered to Nunavik only through the Société des alcools du Québec. Once again, shipping costs are very high. The only way to legally ship alcohol to Nunavik is through Canada Post. Alcohol is purchased from the Société des alcools du Québec.

There is also a special liquor licence available at the Turenne Market, which allows Nunavimmiut to order alcohol at a slightly more affordable price. However, this takes time. People want it instantly. They’re still dealing with bootleggers, who get alcohol and drugs through Canada Post via organized crime out of Montreal.

[English]

Senator Batters: Referring back to that Maclean’s article, they had a quote in there:

Sending through Canada Post can never be a 100 per cent surefire way to beat the cops, but it works 99.9999999 per cent of the time.

They were speaking to someone who took advantage of that loophole and noted it for drug dealers.

To the Association of Chiefs of Police, does that same limitation exist for private couriers like FedEx and UPS?

Mr. Rowe: No. FedEx and UPS, with private courier companies such as that, and even Purolator, which is ironically owned by Canada Post, is a private courier company, we are able to execute search warrants and are able to search, seize and examine items that are within those courier systems, both envelopes and packages.

Senator Batters: Would letters still apply?

Mr. Rowe: No. Letter-sized envelopes within courier systems are able to be searched as well.

Senator Batters: Thank you. I appreciate it.

The Chair: This concludes the conversation we’ve been able to have with you. I want to extend my thanks to each of you, first for staying a little longer than we had initially requested — much appreciated — and also for the insights you have provided. I speak for all my colleagues that this has been insightful and helpful to those of us who are not deeply knowledgeable about the areas in which you work and are challenged.

Thank you, colleagues, and thanks to the staff for their patience and willingness to stay a little longer as we explore this topic.

(The committee adjourned.)