THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 31, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:19 p.m. [ET] to consider 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 ask my colleagues to introduce themselves, starting on my right.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Jaffer: Mobina Jaffer, British Columbia.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Dupuis: Renée Dupuis from Quebec.
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Senator Pierre Dalphond from Quebec.
[English]
Senator D. Patterson: Dennis Patterson, senator for Nunavut, where the Inuit have ceded Aboriginal title.
Senator Batters: Denise Batters, Saskatchewan, home of the Roughriders.
The Chair: I’m Senator Brent Cotter, Saskatchewan, Saskatoon specifically, Treaty 6 territory and homeland of the Métis.
I would like to welcome senators to this meeting. It’s a consideration and conclusion of the pre-study and report in relation to Bill C-47.
I want to confirm, colleagues, that you have all of the material — a copy of the draft committee report and two observations supplementary to that provided by Senator Pate, one in relation to what is referred to as Legal Observation from a Code and the other, Criminal Interest Rate Changes. We’re all on the same page here.
Senator Boisvenu: Chair, I have one observation from Senator Pate, Legal Observation. I don’t have the other one.
The Chair: It is a supplementary sentence or two in relation to paragraph 15, I think. When we come to paragraph 15, if you’d like a little bit of time to reflect on it — since some of you are looking at it for the first time — we can suspend briefly, if that’s your will.
My proposal is that we work our way through paragraph by paragraph and sign them off in relation to the report, but I’d like to just bring to your attention one point that needs to be amended, and I’d invite you to look at paragraph 12.
Mr. Palmer has brought to our attention that it’s now a bit too late to make this recommendation in the language that appears. It seems that the House Standing Committee on Finance has concluded its deliberations, so it is pointless for us to recommend that specific to that committee. I will invite us to consider the language to read there when we come to it. But, just to let you know, the committee recommends that subclause 41(1) in Division 30 of Bill C-47 be amended, so it’s a bit more passive and it doesn’t refer to a specific entity anymore. You may wish to propose some different language, but I wanted to bring to your attention that the passage of time has overtaken the specific language of that provision.
Senator Batters: I have a general comment about this. As I read it just briefly before we came to this committee today, I was surprised to see such a lengthy report and such a descriptive expanse of many of the witnesses’ testimony, as well as different recommendations that this committee was making. I think we need to remember that this was only five hours of committee study, and if one of our major recommendations on this is that the government should quit doing this on massive budget implementation acts — this one has 430 pages — and having these types of major criminal law changes, yet then we’re going through chapter and verse of each committee witness, saying what we agree with and recommend as far as major amendments, I don’t feel we’re in a position to be able to make this expansive report as we are doing here after that limited study.
I don’t think we generally do this, and I’m a bit uncomfortable given the minimal time we had to study some of these issues, particularly the last one dealing with digital assets. Other than the minister and the officials briefly answering questions about it, we didn’t have any witnesses about that part.
The Chair: Are there other comments of a general nature along the lines of or different from Senator Batters’ viewpoints?
Senator D. Patterson: Maybe this is not of a general nature, Mr. Chair, but I think our most penetrating finding was that the section relating to search and seizure by Canada Post is inadequate to deal with the major issue of fentanyl that we’re all very concerned about.
I’m happy with the recommendation that the bill should be amended. But I know that Senator Dalphond has done a great deal of work on this issue, even to the point of proposing legislation. I think he and this committee know exactly what the amendment should be. I will be recommending, when we get to that section, that we not only recommend an amendment, but also spell out what it should say because I think Senator Dalphond knows exactly what the amendment should say. He’s drafted a bill.
I know we can’t amend the budget implementation act, but let’s go as far as we can and recommend what the amendment should be that we have already agreed to recommend. I don’t know if that’s a general comment, Mr. Chair, but it’s something that concerns me. Thank you.
The Chair: Could I just ask Senator Dalphond that when we come to paragraph 12, assuming we work our way through these paragraphs, whether there is language that doesn’t declare the brilliance of your bill but invites a more specific phrasing that captures Senator Patterson’s point? I think there was a degree of consensus around this point of concern in the committee’s deliberations, and you have been leading on this, Senator Dalphond. I don’t think we’re in a position to call for the adoption of your bill just yet — we should study it — but Senator Patterson does raise a useful point. If we want to enrich that observation, and you are willing, might you be a contributor on that?
Senator Dalphond: Thank you Mr. Chair, I feel I’m in the hot seat already. I’m sure Canada Post is watching.
The Chair: Your mail may never be delivered again.
Senator Dalphond: I still have a mailperson. I’m reluctant to say what you’d like me to say, out of respect for the process. I think my bill addressed a different section of the Canada Post Corporation Act — not the power of the inspectors, but the power of police to obtain a search warrant from a judge in order to have reasonable grounds to suspect, explain it to a judge to authorize and then you can seize the mail in transit if you want. So it’s a different concept from what we have here, which is about the power of the inspectors. Should we recommend we extend the power of inspectors to include letters? To me, that’s something that looks within the scope of this legislation.
But if you want to extend it to say the police will have the power to get the judicial warrant in order to do that, I’m afraid I feel it’s beyond the scope of the bill, and I’m speaking against myself. I don’t want to take your seat, Mr. Chair, but I feel that could be unfair to the process. I know Senator Carignan will speak to the bill — tomorrow, I think — and he will also suggest that the committee remove some parts of what I suggest on the bill.
Maybe the bill has not yet reached the point of maturity. It was a proposal, but I think I will benefit — like everybody else — from a full debate and consideration in due course by the committee.
Senator Pate: Just in response — and thank you, Senator Batters, for the issue you raised — I don’t in principle disagree with that. However, we also make the point that we think that these sorts of amendments should not be in a budget bill.
It strikes me, given how profound they are, how important it is to actually have the observations there to send a message to the government. I would support having a more fulsome consideration.
[Translation]
Senator Dupuis: I also believe that, since we’re talking about amendments that should be the subject of separate bills in the general comments, in paragraph 4, we should have the pedagogical concern to clearly show what work we’ve done and give examples of amendments that should be the subject of separate bills.
I’m not interested in the order of paragraphs, but I think it’s important for the people watching us to understand what can be found in an omnibus bill affecting different aspects of life, and that certain issues should be the subject of separate bills.
[English]
The Chair: I will go to one more senator, and then we should move on to see if we want to significantly reconsider the report or whether we should work our way through.
Senator Batters: First of all, regarding Senator Dalphond’s private bill, when the minister was here the last time we sat, I think many of us questioned the minister and his officials pretty significantly about that and indicated many different areas about that. But at the end of the day, this is a bill that we haven’t studied at this committee yet, so I certainly don’t think we should make that leap to accept those types of things. Perhaps there are many good things to be gleaned from it, but we also need to go through the proper procedure about that.
My main concern on this is just having a number of different provisions in here that say, “The committee accepts the testimony of such and such,” over and over saying that we are making these types of major recommendations when I really feel like we haven’t had the depth of study that we would need to be able to make those kinds of statements, especially on the Elections Canada part when we’re talking about “urges the government to establish this national uniform regime in relation to federal political parties’ use of data.”
We didn’t even have any parties in front of us, all we had was Elections Canada’s Chief Electoral Officer. We didn’t have a minister tell us their particular portion on that because, of course, the Justice Minister is not responsible for that part; that’s a different minister. Then dealing with the Chief Electoral Officer’s recommendations issued following the 43rd and 44th federal general elections, as I pointed out when we were questioning that individual, Elections Canada’s Chief Electoral Officer has never even presented his reports on the 2019 and 2021 elections to our committee, as has typically been done.
I just feel like, on many areas in this report, it goes way too far from what we were able to actually find out in the limited five hours of study on a budget implementation act that has these major sections.
[Translation]
Senator Dupuis: I’d like to come back to what Senator Batters said. Couldn’t we go back to the model we have often adopted in our committee reports, where we wouldn’t name the witnesses whose testimony we retained? We wouldn’t necessarily endorse a witness. We would refer to testimony that went one way or the other. Even after doing in-depth studies of certain bills, we wouldn’t go so far as to say, “We agree with such and such testimony.” I think it would be more relevant for the committee to summarize what it heard, without necessarily taking sides, as we’ve done very regularly in this committee’s reports since November 2016.
[English]
The Chair: Could I offer a brief intervention? I think there are two or three places where we could moderate the degree of acceptance of the testimony to particularly notable, although I kind of accepted it myself. In the Canada Post discussions, we could adjust that language to be more factual than judgmental, if I could put it that way. There are a couple places where we might make some other moderations along the lines that Senator Dupuis suggested. But I interrupted you, Senator Dalphond.
Senator Dalphond: It is exactly the same thing. I am more in agreement with the way it is presented. I disagree with Senator Batters about the perception of what this report is, and this disagreement started years ago and it will certainly continue until we have a different type of Senate.
That being said, I think there are some opinions that are expressed here. The committee recognized that it raises important issues, that may be correct. But to say the committee agrees with the testimony of an expert, I think I disagree with this. But I think that’s also what Senator Dupuis is aiming at — sometimes, we are endorsing opinions. I’m not comfortable with this. I think it should be more factual, but I like to have a report for people in the public who want to read our reports. I know there are not millions of people, but there are a few people who might be interested to read our reports. I want them to find and understand a readable report where they can understand what we’re trying to say.
The Chair: Could I make a suggestion, then, that we proceed through this, paragraph by paragraph, recognizing that this is not the preferred way Senator Batters would like to go? When we come to the language that was just referenced, we say something like “The committee received testimony from,” rather than trying to identify in a normative way what we thought of the testimony? It neutralizes it a little bit. It’s not as rich as I might perhaps have embraced, but I think that’s a fairer way of proceeding to produce this report. Just as a reminder, we are working on a bit of a deadline with this project.
[Translation]
Senator Dupuis: I agree with your proposal. However, the second paragraph lists all the witnesses the committee has heard from. I think this is sufficient and that we shouldn’t bring up each witness again, for example, in the Election Act or in the Criminal Code. We’ve already done that; it’s all in paragraph 2. That’s enough, in my opinion.
[English]
The Chair: Shall we proceed? Any thoughts or changes with respect to paragraph 1? I take it that we’re comfortable with paragraph 1 then.
Paragraph 2 provides the list of all the witnesses. Agreed. Thank you, Senator Patterson. You and I are in agreement, at least.
Paragraph 3 — as a first general observation. I’m going to invite Senator Pate to speak to the suggestion she makes here. This is intended to be supplementary, Senator Pate?
Senator Pate: Yes, that’s correct.
Senator Batters: On paragraph 3, I had a note that I think we should note that Bill C-47 is 430 pages long.
Senator D. Patterson: What was that? 400 and —
Senator Batters: Thirty.
The Chair: I’m perfectly comfortable with that. I’m in sympathy with Senator Patterson’s point of the previous discussion. Is there a specific spot where you would place that? Okay.
Senator Pate: What about in paragraph 4 rather than buried within —
Senator Batters: Sure, that’s a good idea. To start out with that. Bill C-47 is 430 pages long period. The committee recommends that these types of amendments should be introduced in separate bills. Sure.
The Chair: We’ll put either a sentence or phrasing to capture that point.
Senator D. Patterson: I would say a staggering portion.
The Chair: We will say Senator Patterson would have said, “staggering.”
So we’re good with the slightly adjusted paragraph 4. How are we with paragraph 3? Eventually we are going to get to Senator Pate. Are we okay with 3 as written? Okay. I’m going to accept that Senator Patterson said “agreed” there. Thank you, Senator Patterson.
Senator Pate: I would be fine with this going after paragraph 4 or after paragraph 3, whichever the committee prefers. This is an observation about the piecemeal legislative changes to the Criminal Code. Do you want me to read it out? Okay. So the observation in English is:
The committee has reported in the past about the decades of piecemeal amendments to the Criminal Code that result in cumbersome, sometimes repetitive, or inconsistent provisions, and in the need for comprehensive review and reform (see for instance, the committee’s 2017 report Delaying Justice is Denying Justice at pp. 41 to 43.) The committee reiterates past recommendations that an independent body should undertake a comprehensive review of the Criminal Code. The newly revived Law Commission of Canada could undertake such a review, including a study of all provisions in the Code that pertain to violence against women, particularly intimate partner violence and family violence.
That comes from the discussions we had that I raised with Minister Lametti and some of his responses.
The Chair: Comments in relation to this? Agreed? My suggestion would be that maybe you can leave it to us to think what is the best sequence to put it in with respect to the general observations. If it’s all right with you, we will contemplate that as a new number, but we will continue with the numbering that appears here so that we don’t confuse ourselves, which would take us to the section on the Canada Post Corporation Act. The first paragraph is paragraph 5. Are we comfortable with paragraph 5?
Senator Batters: This is one of the places that says in the last sentence of that paragraph:
The committee agrees with the testimony of Mr. Jonathan Noonan . . . that the amendment will bring this section into constitutional compliance.
That’s quite a wide sweeping statement to say given our brief study.
The Chair: Either “received” or we just take out that we said we heard from him.
Senator Dalphond, are you on the same point?
Senator Dalphond: It was exactly on the same sentence. My suggestion was that the committee noticed that the defence counsel for the accused in Gorman is of the view that this would bring it into — so that’s his opinion, but not ours.
The Chair: So far are we comfortable with that subject?
[Translation]
Senator Dupuis: The question I wanted to ask is this: Do we really need to refer to his testimony and his position on the issue?
I certainly don’t see what referring to that adds of use to the report we have to make. The committee agrees, but I’d be more in favour of deleting this sentence altogether.
[English]
The Chair: Let me pose this question: Would you be comfortable with the removal of that sentence? It tracks a small contribution to Senator Batters’ shortening of the report.
Senator Dalphond: Let’s go for that then.
[Translation]
Senator Dupuis: Can I explain why I am making this proposal?
Reference is made to a decision of the Supreme Court of Newfoundland and Labrador. We’re referring to the lawyer for one of the parties, and we’re not in the habit of doing that in a proceeding, whether he won or lost it, for that matter. In this case, I don’t see why this particular decision would be privileged and why it would merit special mention of the lawyer in question.
[English]
Senator Batters: I think as the justice minister and officials told us, the reason this part is in the bill is because of that decision. I recognize that the opening sentence in this part refers to that particular court decision, but if we’re going to refer to everyone else, it might seem sort of strange to leave out that person. All the other witnesses that we heard from potentially are referred to in some fashion in this report, so I think it’s fine to just refer to the fact that it was his view because people may be curious to know that the person who brought this issue forward and then as a result — even though it’s only a lower court decision — the federal government is putting this in their budget implementation act to deal with this. I think that’s interesting to know that particular counsel finds this is adequate to deal with that topic.
Senator D. Patterson: The committee notes the testimony.
The Chair: Right.
[Translation]
Senator Dupuis: Earlier, I was under the impression that we had agreed to eliminate the names of the witnesses, as we didn’t want to personalize the report we were going to present. This is the first name that comes to us in the report.
The same question will arise for the other paragraphs. Can we agree to delete them or not? At that point, there’s no question, if we remove this name, of keeping the others.
I thought we said we were going to depersonalize the report on our analysis of Bill C-47.
[English]
The Chair: I think the advantage of setting out the names of all the witnesses is that we can refer to, for example, the Assembly of Manitoba Chiefs and we don’t have to say who exactly said what, but they’re captured in the opening phrases. It strikes me that there is a small expression of appreciation by the committee to people like Mr. Noonan, who set aside time to tell us his point of view, and at least this gets acknowledged. We might not embrace the viewpoint but acknowledge that he communicated to us.
I like that as a respectful way of relating to the witnesses who come. Mr. Noonan probably had clients waiting for him and took the time out of his schedule to share his perspective with us.
Senator Jaffer: We mention Mr. Noonan right at the beginning, so we haven’t left him out. We have already mentioned him.
The Chair: I want to make sure we have given everybody a chance to weigh in on these points.
Senator D. Patterson: I hear what Senator Dupuis is saying, but I think the concern expressed by Senator Batters was the idea of agreeing with the testimony. It’s as if we accept everything he said. I think neutralizing it would simply be done by saying, “We note the testimony.” This was not unimportant since the government relied on it in bringing the provision forward. I think it’s okay to say we noted the testimony rather than striking any reference to the witness.
In my experience, other committees often do that. They refer to witness testimony so people reading the report can go and look it up in the transcript.
Senator Batters: I was wanting to say in response to Senator Dupuis about that, and I perhaps misunderstood through the translation, but I didn’t think that we were anonymizing it after the initial paragraph.
I thought that we weren’t going to refer to the people’s titles anymore. Jonathan Noonan has a different title at the beginning. It just says “Lawyer with Noonan Piercey,” and then in the paragraph we’re talking about, it explains his role in this by saying he was “defence counsel for the accused in R. v. Gorman.” I see those two things as quite different.
I don’t think we have to anonymize it later. I can see the advantage of not having the exact same titles as we referred to in section 2 throughout the report. I think that’s helpful. But in this case, I think that is helpful to note what his role is in this issue. My main comment on that was to not indicate that the committee agrees with it, but to simply say something like Senator Patterson is talking about where we note the testimony or that sort of thing. Thank you.
The Chair: Senator Dupuis, anything further on this point?
[Translation]
Senator Dupuis: The reason why I’m proposing the reports use de-identifying language is very simple: That’s how the reports of the Standing Senate Committee on Legal and Constitutional Affairs are usually presented. In this instance, there has been little time to study the bill. However, even when we have the time, witnesses aren’t identified, namely because we don’t want to appear to give preference to the remarks of some witnesses over others whom the committee wouldn’t have had time to hear, among other things. You are as familiar as I am with the list of friends of Senate committees. We’re trying to do things differently and expand the range of input we receive. To that end, I think that it’s a best practice to remove identifying information. Above all, we mustn’t express support for their comments, but we’re in agreement on that point.
[English]
The Chair: Let me make a suggestion to test your will on this. The choices are to either simply drop the sentence or to modify it in the language that Senator Patterson suggested. I’m going to invite a show of hands on whether you would be comfortable with Senator Patterson’s language, which would then read in the last sentence of paragraph 5: “The committee notes the testimony of Mr. Jonathan Noonan, who was the defence counsel for the accused in R. v. Gorman.”
I would include, if you would accept this, Senator Patterson: “to the effect that the amendment would bring this section into constitutional compliance.”
How many of you would be comfortable having the sentence remain in that language? How many of you would be opposed to that and would prefer the sentence removed? Six to two. I’m going to suggest that we include the sentence, but in the way in which it was modified by Senator Patterson and noodled slightly by me.
Paragraph 6. Are we comfortable with paragraph 6?
Senator Dalphond: The first sentence is coming too fast or is necessary. The point is that, “The committee notes that the restrictions on the ability to open mail . . . .” And then, “Furthermore, these rules prevent police from searching . . .” — that’s the point.
And it says, “The committee recognizes that this amendment raises important issues pertaining to Canadians’ rights to privacy . . .” when we just said before that we think that it seems to be okay.
I was wondering if there was a contradiction there?
The Chair: Are you inclined to suggest that we just remove that sentence?
Senator Dalphond: We could live without it, but if you want to move it somewhere else, I don’t know.
Senator Klyne: Are we saying it’s okay? Maybe it needs a couple of words. I don’t think it’s okay to include different privacy protections for letters compared to non-letter mail. That almost needs a recommendation or an observation there.
I know what Senator Dalphond is saying in the end, that we state that. But previously, we state it’s okay. Well, it’s not okay. You can infer if you follow as much as we have here.
The Chair: I wonder if it’s possible, Senator Dalphond, to take that sentence, attach it at the end of paragraph 6 but begin by saying, “At the same time, the committee recognizes this amendment raises important issues regarding privacy,” et cetera. Is that helpful?
Senator Dalphond: Which amendment?
The Chair: Sorry, the Canada Post Corporation Act amendment.
Senator Dalphond: Yes, but this amendment raises important issues. I don’t think we have concerns about inspecting the parcels. What we have, maybe, concerns inspecting the letters. The amendment only addresses parcels, not letters. So the amendment doesn’t raise concerns.
Further amendment could raise concerns, but not the one we have before us. That’s what my point is. I just want to understand what the message is.
The Chair: The argument is what would make the most sense is to take it out. Are we comfortable with that? All in favour of just removing that one sentence? Agreed. Thank you. Thank you, Senator Dalphond.
Paragraph 7 is a reference to the Canadian Association of Chiefs of Police. We quote this one on the second page of the document. Are you comfortable to have that included in the report?
I think you might have lost out on this one, Senator Dupuis. I think there is a sentiment that it should remain.
Paragraph 8, this is one where we express a normative view of what we think of the testimony. Shall we use a phrase such as “The committee noted the testimony” again? Are you comfortable with that language?
Senator Jaffer: May I ask that where we say things such as that, we just accept it as noted and the analyst will make the changes?
The Chair: There are only two or three more spots. Are we comfortable with paragraph 8 otherwise? Thank you.
Paragraph 9, this is another example that was pointed out by Senator Jaffer. We will make adjustments there.
Are you comfortable with paragraph 9 of the report?
[Translation]
Senator Dupuis: What exactly does paragraph 9 say?
Senator Dalphond: The proposal is to replace all the instances with “notes.”
Senator Dupuis: Okay. I’ll check. Thank you.
[English]
The Chair: I think that’s correct. We’re trying to neutralize that. That would begin, “The committee also noted the testimony.”
We adjusted that already in paragraph 10. Are we okay with paragraph 9, though?
Hon. Senators: Agreed.
The Chair: Thank you very much. Paragraph 10, this is, again, a factual statement, the requests from the Assembly of Manitoba Chiefs. Are we okay with paragraph 10? The officials were ahead of us on this one.
Now we say in paragraph 11, “The committee therefore recommends that Parliament and the Government of Canada give urgent attention to addressing these concerns.”
Senator Dalphond: My question is about this paragraph and the following one. Are we offering an option or are we asking to do something else? I wasn’t sure. Paragraph 11 seems to say that we recommend the government give attention to these concerns, those we describe above. Then the next paragraph is that we recommend to amend section 41(1). Is that the answer to the concerns or is that an answer to something else? I’m just trying to find out.
The Chair: I have a thought on that, but I’m going to invite Senator Batters, who is next on the list.
Senator Batters: I would be okay with leaving paragraph 11 in, but I don’t think that given the limited study that we’ve had on this issue that we should include anything like paragraph 12 that’s currently there. We just have not heard enough evidence to make such a recommendation. We may be in favour of that. It’s very possible that may be basically what Senator Dalphond’s bill is, so we’re then signing off that our committee recommends that sort of a bill be implemented before we ever even study it.
The Chair: Other thoughts? I see Senator Tannas nodding. That is a compelling intervention. Thank you, Senator Tannas.
The nice thing about paragraph 11 is that the earlier paragraphs do note the problem with respect to letters. In a certain way, in a more all-encompassing recommendation, we capture that point in a more general way rather than being so specific that it might create problems.
Let’s see if we’re comfortable with paragraph 11 and dropping paragraph 12.
Hon. Senators: Agreed.
The Chair: Thank you.
Paragraph 13 is a complicated one. We’ve heard a lot of — Oh, sorry, Senator Batters.
Senator Batters: I have a question about that. No, we didn’t hear anything about that, actually.
The Chair: I didn’t even get my sentence out.
Senator Batters: Sorry. Isn’t this the part that actually takes out “defender of the faith”? That’s something that has received some media attention on this particular changing of the royal style and title for King Charles III. If that is the case, we should at least note it.
We did not have any testimony or evidence about that — yet again. That’s another reason that it’s not the best way to do it — to have such a thing in a budget implementation act where we have very little time.
The Chair: Comments or thoughts on this point? We should, in a sense, say more?
Senator Tannas: It effectively deletes “defender of the faith,” right? Does it change anything else? Because if not, we could say it deletes “defender of the faith.” That’s the truth.
Senator Dalphond: Does it do anything about the Crown?
Senator Tannas: Is there more that got changed?
[Translation]
Senator Dupuis: Here is my question. Were we not advised that King Charles III no longer wishes to use the phrase “defender of the faith?” Isn’t that why this change is being made here? It needs to be said. We can’t just include this phrase that means absolutely nothing, because the bill accepts the new title adopted by the King.
I’d like you to verify that information, because we heard that it was in response to a desire expressed by King Charles III to bear that title.
[English]
Senator Clement: I want to say I agree with Senator Dupuis on that; that was my understanding as well.
I did try to engage with the minister on that point, but he was unable to answer the question because it wasn’t within his purview. I think we should be careful what we say here. If it is at the request of King Charles, that should be stated.
Senator Dalphond: I’m not a big follower of the monarchy, but I think it was asked to His Majesty if you will agree that we remove that because in the U.K., it’s still “defender of the faith,” I think.
[Translation]
I think the King agreed that those words would not be used in Canada.
[English]
The Chair: I think we’ve gone a little outside the committee’s source of learning to try to articulate this. I don’t disagree with Senator Batters’ point, but it seems to create a little bit of a problem as to whether this is some unilateral initiative or was it motivated by some other source? Are we pinning it on somebody — the government? Are we pinning it on the King? It’s my suggestion, unless you want to make a different course, that we not make a reference to the “defender of the faith” point in this report.
That’s my point of view on it.
Senator Batters: Can we find out what this actually does? I think that’s important. If we’re going to note it in our report, I’d like to know what it does. Maybe it’s right in the act that it eliminates “defender of the faith.”
Senator Boisvenu: From royal history —
[Translation]
— Charles III will no longer be the defender of the faith in Canada.
[English]
The Chair: I think both Senator Boisvenu and the analysts are right that has been removed from the title in the legislation. The difficulty is that, in leaving it hanging like that, if it’s true that the King was comfortable with or even asked for this to be removed, it seems a little awkward for us to not articulate that so that it’s not some strange and unfortunate curiosity that we leave in the report.
Senator Tannas: Say what it does, and then say that we did not undertake to receive any witnesses or — whatever we want to say — that we just didn’t get to this and didn’t do anything with it.
The Chair: That might be fair. What we would then do is conclude this by saying, “which removes the reference in the title to ’defender of the faith.’ The committee did not pursue or receive evidence in relation to this amendment.”
Are you comfortable with that or something close to it?
Hon. Senators: Agreed.
The Chair: Thank you, Senator Tannas. That was very helpful.
Now we’re moving on to paragraph 14, and this is the criminal interest rate components. Are we comfortable with paragraph 14?
Senator Batters: On this — since we’ve been so detailed about all these other witnesses, areas of questioning and things like that — when we had witnesses in front of us, I asked about this. First of all, I referenced Senator Ringuette’s bill, which I think is fair to probably include somewhere in this paragraph given that she brought that bill forward many times over many years. There’s no reference to it in here. That would be important to do.
Also, I asked in questioning about bridge financing and the fact that even though this was being passed — and bridge financing or bridge mortgages could absolutely be included as criminal interest rate percentage. Then when I initially asked about this — and that actually got some media attention — that cabinet could pass an exemption after we’re being asked to pass this in the budget implementation act. We wouldn’t necessarily know before we pass this whether that was to be included in this. That’s something many Canadians could be affected by.
So I think we should put a reference to this bridge financing issue somewhere in here and also about Senator Ringuette’s bill.
[Translation]
Senator Dupuis: I think that the committee’s report should stick to the questions — The committee report can’t refer to each point raised during the committee meetings on all of those issues.
I think that what’s in paragraph 14 is sufficient. It explains the matter very well. I don’t see why we would add a point raised by a committee member. Otherwise, we’ll all be trying to have the report mention some point that we made. That is not the purpose of the report, in my opinion.
[English]
The Chair: How many would be in favour of adding a paragraph or reference along the lines that Senator Batters proposed? How many would be opposed to that?
It looks like a majority would like to see a sentence crafted that makes reference to concerns about payday loans, particularly bridge financing.
Senator Batters: [Technical difficulties] says, “. . . Governor in Council, by regulation, to fix a limit on the total cost of borrowing under a payday loan agreement or to exempt bridge financing.”
That could be a way to work it in at the end of paragraph 14
The Chair: You said, “exempt bridge financing.”
Senator Batters: “Or to exempt bridge financing.”
The Chair: Are we comfortable with that? Senator Patterson, I need you to say, “Yes.” Thank you. Agreed? Thanks.
Paragraph 15 is a paragraph that runs to two or three sentences. This is a location where Senator Pate has an observation that would supplement this paragraph with another sentence or two highlighted in yellow in what was distributed to me, and I think others have it.
Could I invite, first, a consideration of the first part of the paragraph, and then invite Senator Pate to speak about the supplementary language she proposes? Are you comfortable with the earlier references in the first three or so sentences of this paragraph? Let’s consider that as a “yes.”
Senator Pate, would you like to speak to the supplementary language you would like to see added?
Senator Pate: Predominantly, my recollection is, and from the information we have, it was in response to questions to Mr. Radley from Senator Simons and Senator Patterson and I added one at the end, but talking about the fact that this doesn’t fully address the issue. The bill only reduces the criminal interest rate from 47% to 35%. The point is to add in the number of people who will still be subject to these high interest rates.
I can read out the additional two sentences, if you’d like. Could I suggest we add:
Even with the amendments made to the criminal rate of interest — reducing it from 47% to 35% — too many of the most economically marginalized individuals will remain isolated from these institutions or other reliable sources of credit and are likely to remain trapped in cycles of debt. The committee recommends that further study be undertaken into other ways in which the government may further assist the most economically marginalized to escape poverty.
The Chair: Are we agreed?
Senator Batters: Thank you, Senator Pate. I’m in general agreement with this, but I wonder about the second last line, which says: “The committee recommends that further study be undertaken . . . .” It seems a little unclear as to whether our committee would be undertaking that study or the government, and I think you mean to have the government. Perhaps it should say, “The committee recommends that the government undertake further study” if that’s right?
The Chair: Very good suggestion. Are we comfortable with this set of sentences being amended as Senator Batters proposed?
Hon. Senators: Agreed.
The Chair: Thank you. We’re now at Division 39, the Canada Elections Act, and paragraph 16.
Senator Tannas: I don’t think I misunderstood this section in particular, but I think if we’re telling the truth on paragraph 16, we should end it where it says, “eligible political parties.” There’s an amendment here to provide for this national, uniform, exclusive and complete regime, and we’re doing it by simply declaring that it exists. Right? At some point, we have to say what has gone on here is absurd. We can say that by declaring — because that’s all the thing does; the only thing it does is declare that what is already there exists. It would be nice to highlight the silliness of this. It’s insulting.
Senator D. Patterson: After the big hole that’s left for fentanyl in the Canada Post provisions, this is also a big fraud. I was really disappointed in the evidence. I like what Senator Tannas has said. Let’s tell it like it is; let’s not euphemize this. Let’s not let the government pretend something that is fiction. I’d like to see stronger language in here.
The Chair: Do you have some specific language on where you would like it to go?
Senator Tannas: I had a comma after “eligible political parties”: It reads:
This section amends the Canada Elections Act to provide for a national, uniform, exclusive and complete regime for the collection, use, disclosure, retention, and disposal of personal information by federal registered or eligible political parties —
— comma by declaring that such a regime already exists.
When it doesn’t. But that’s what they do. They actually say at the bottom, and it exists.
Senator D. Patterson: There you have it.
Senator Tannas: Such a regime already exists.
Senator D. Patterson: When it doesn’t.
Senator Tannas: When it doesn’t. I don’t think we want to say that, but we sort of do, in paragraph 18, because we return to it, and say, “Why don’t you actually develop something?”
The Chair: Are we comfortable with the addition of the six words that Senator Tannas proposed?
Senator Batters: I’m okay with that for paragraph 16. But I’m not okay in the least with paragraph 18.
The Chair: One at a time. For paragraph 16, are we good with this addition?
[Translation]
Senator Dupuis: I am not an expert on the Canada Elections Act. What exactly does paragraph 16 mean? It states that the section amends something, but it’s something that — I just want some clarification as to what is meant by that sentence. I’m not objecting to it in any way, but it would be good if we could say precisely what we mean.
[English]
Senator Tannas: It’s very hard to explain what is so absurd. It really is.
[Translation]
Senator Dupuis: You all understood my question. It seems so absurd to anyone who is not familiar with the issue. It’s an extremely important issue concerning democracy and political parties. No matter what we intend to say to the government about that, it needs to be stated as clearly as possible.
[English]
The Chair: At this point, we’re just making a statement, at least. Are we comfortable making this statement in paragraph 16? Agreed?
Senator Dalphond: I think “to provide for a national, uniform, exclusive and complete regime” for the correction, I think that is taken from the bill, so we could have the quotes.
The Chair: Are we in agreement, then, with respect to the slightly amended paragraph 16?
Senator Clement: I just want to go back to Senator Dupuis’ point. For us, we’re here and we’ve listened to this, so we can understand it. But for somebody reading it, are they going to be able to understand that we’re making a statement?
The Chair: You want to make a bigger statement now.
Senator Tannas: There is a point at which, I think —
Senator Clement: I use sarcasm all the time. I don’t always get it.
Senator Tannas: If we go any further, all we’re doing is helping the B.C. court. This is all designed to somehow strong-arm the B.C. court away. If we say it doesn’t exist or that we found no evidence that it exists, I don’t know. Do we want to do that? Did we really follow that? Did we dive that deep into it or did we all just kind of roll our eyes? I don’t know. I’m happy for more because it really goes to doing the work that needs to be done. This needs to be a bill, and there’s a bill coming that it could actually go into.
Somewhere in here we have to talk about the Privacy Commissioner and the Chief Electoral Officer saying this is inappropriate.
The Chair: Could I ask Senator Tannas whether what we’re really saying here is by declaring without justification that such a regime exists? I only thought of it in trying to answer your point, which tries to make this at least a bit more meaningful.
Senator Pate: I’m fine with what you suggest. I was going to suggest that at the time of this study, you know, something like that, so that it doesn’t hamstring the government from actually doing it. But at the time of this study, no such regime exists.
The Chair: Senator Tannas, do you like the phrase that I offered? Are you comfortable?
Senator Tannas: I like yours. Then, if they do — I’d like them to see this and maybe try and do something about it. So I like that it doesn’t exist. Don’t give them any way to say they’re going to fix it later.
Senator Dalphond: I think Senator Clement raised a good point: It has to be readable. Why don’t we invert 16 and 17, and start with 17, which establishes a principle? Then 16 will be: This claims to do something, but it does not exist. Then 18 says that we urge the government to do something. So then there’s a logic in it.
The Chair: So move 17 to 16. We haven’t got to 18 just yet, and we’re going to adjust 16 with Senator Tannas’s language at the tail end by declaring, “without justification, that this regime already exists.”
I think that offers a logic to it and a bit more understanding. Thank you. And thank you, Senator Clement, for that intervention.
So we’re now at paragraph 18. Before I even ask the question, I’ll invite Senator Batters to offer her perspective.
Senator Batters: Paragraph 18 — I think we should just delete it entirely. As I indicated before, the part urging the government to establish this regime, we haven’t received even close to enough information on that particular issue. We didn’t hear from any political parties or a minister about that.
The other part of that paragraph talking about the Chief Electoral Officer’s recommendation to say that “we urge that minister to give serious consideration to that” — as I indicated before, Elections Canada’s Chief Electoral Officer has never even presented his reports on those two elections to our committee, as he had always done after every single election. One of those elections was now four years ago.
So I don’t think we should have any part of that paragraph in there. Instead, I think we should end this section with paragraph 19, which emphasizes that the amendments to the Canada Elections Act should be introduced in a separate bill to allow for thorough study, so we can actually make smart comments about this.
The Chair: Comments on that?
Senator Dalphond: I’m also a bit — the reality is that the political parties have decided they don’t want to be regulated. They are fighting in court, and they’re united to oppose this B.C. access to information commissioner or privacy commissioner.
So maybe we could say something like, “The committee urges the establishment of a national, uniform regime in relation to” — leave it to the parties, the government or Parliament to do something. Then, in the second sentence, I would remove “the minister.” It should give serious consideration to the Chief Electoral Officer.
It would be an indication to the political parties to do something.
[Translation]
Senator Dupuis: Shouldn’t we refer in this section to the evidence we heard that political parties should be subject to personal information and privacy protection requirements, like other organizations in Canada? We heard that; it was clear. Two public officials told us that there was essentially no reason to give a free pass to political parties so they wouldn’t be bound by those requirements, when every other organization in Canada is.
At the very least, I think we need to indicate that we heard very clear evidence and that many people said the same in writing. Without telling them what to do, we should at least make sure that they consider the comments made by public officials.
[English]
Senator Tannas: I wonder if we could combine 18 and 19, and leave the first sentence in. Take out the rest of the paragraph of 18, and then have 19 again say that the amendments should be in a separate bill. Then say that this is our concern, and that this concern was echoed by testimony by the Privacy Commissioner, the Chief Electoral Officer and through submissions from other civil society stakeholders. That would pull it all together.
The Chair: This concern being the concerns —
Senator Tannas: A separate bill with thorough study.
The Chair: Right.
Senator Batters: It’s very important to remember here that there is an existing court case that we have to be very cognizant of. So I don’t think we should make judgments about the evidence we did hear because we did not hear balanced evidence on that. We didn’t hear from any political parties. All we know is what the other side has told us about what the political parties are saying. We didn’t hear from them, so I don’t think we should insert that part of it. I think we should be very careful with our language here because there is this existing court case, for which I think the government is trying to use this particular section to assist, but we shouldn’t also be part of that.
Senator Clement: I just want to add — and I’m not sure where we’re going; I’m just listening — that I took note of the testimony of the Privacy Commissioner saying that he had not been consulted at all in this. So that’s of concern. Maybe I’d like to see something to that effect because this is not what we want them to do the next time.
Senator Batters: The Chief Electoral Officer also said he had not been consulted, so perhaps this is the place to reference that.
Senator Tannas: All this to say, this should be in a separate bill so that we can study it properly. I think it would be worthwhile to say we did not have time to talk to the political parties, who are obviously the beneficiaries of this. I’m sorry.
The Chair: No, that’s helpful. We’ll see if we can cobble together a position.
Senator Dalphond: To follow up on the comment of Senator Batters, no doubt about it, this new paragraph 17, which is about how this is a sham, is going to be quoted extensively before judges. If our reports are read widely — they’re probably not — but with this one, that paragraph will be read and used in court.
The Chair: What I suggest, then, is that we follow what would be as close to Senator Tannas’s suggestion as possible, which is that paragraph 18 include the first sentence, and that in paragraph 19 — maybe it’s a separate paragraph as well — we delete the remainder of paragraph 18, move to paragraph 19 and say something like “which would include opportunities for a range of perspectives to be brought to bear on the question” or something like that. That is sort of the point about hearing from political parties, the Chief Electoral Officer, the Privacy Commissioner and the like.
Is that moving in a direction that you might be comfortable with?
Senator Batters: I would like to be agreeable, but I just feel like even that first sentence of paragraph 18 that says “The committee urges the government to establish a national, uniform regime” without having heard evidence from the political parties themselves about what they actually have. If we had heard that, then I’d be more comfortable, but we haven’t. So I don’t think that is something we should go so far as to say, that “the committee urges the government to establish.”
I think we’ve gone a considerable way in that one paragraph about declaring the regime exists. That’s probably as far as we need to go on that.
Senator Tannas: What about “more comprehensively establish.” It will still hold up the fact that it now exists.
Senator Batters: I think we just need more evidence.
The Chair: Let’s do this: Let’s vote on whether we like that first sentence as paragraph 18, and then we’ll decide one way or the other what we think about paragraph 19.
Senator Dalphond: The government — I think about the political election act, it’s more the parties acting together after some consultations than the government imposing its view to the other parties. I’m not sure if the word “government” should be replaced by another word. “The committee urges the establishment of a national, uniform” or —
The Chair: A kind of passive reference? Senator Tannas, are you okay with that?
Senator Tannas: Yes.
The Chair: So we go with “The committee urges the establishment of”?
Hon. Senators: Agreed.
The Chair: That would be paragraph 18. Then paragraph 19 would, again, be this emphasis that amendments to the act should be introduced in a separate bill to allow for thorough study. Is that sufficient or do you want to start naming people who should be spoken to? Would you be okay with the language as it sits, then?
Senator Batters: Are you putting in a part about the lack of consultation of the Privacy Commissioner and the Chief Electoral Officer?
The Chair: Well, I drew a line there which would include consultation with all the relevant actors or something like that, and it could name some.
Senator Tannas: Would you, in the concern that we have?
The Chair: In 19.
Senator Tannas: Paragraph 19, “The committee again emphasizes . . . .”
The Chair: The people. “Which should include consultation with,” and then we will name political parties, the Chief Electoral Officer and the Privacy Commissioner.
Senator Batters: Except, I think, Senator Clement made a very good point before that we did hear testimony at this committee very strongly that neither the Privacy Commissioner nor the Chief Electoral Officer were consulted. I think it’s absolutely correct to put that in here. So it is not just a forward‑thinking thing, which we can include too, but we did hear on this that they weren’t consulted on it.
The Chair: How do you want to approach that? Do you want to leave it to us to squeeze in a reference to the lack of consultation with those people or do you want to just have 19 to be prospective?
Senator Batters: Squeeze it in.
The Chair: We’re hearing to squeeze it in. Are you comfortable with us crafting some language that we can then put that together with? This is 19 as written with reference to consultation with a range of people and the observation that they were not consulted in this exercise.
Senator Jaffer: I don’t think it’s appropriate here, but I’m finding that in these later bills there has been less and less consultation. We’re going to have to be formal on that because we’re finding less and less.
Senator Tannas: Consultation and the fact that this should be a separate bill were both subjects. That’s why this paragraph should all tie together. Consultation and a separate bill would achieve the result.
The Chair: We might even try and break it into two sentences so that we make the point. The first sentence might actually make reference that amendments to the Canada Elections Act should only be undertaken in consultation with X, Y and Z, and then, in any event, they should be the subject of a separate bill to allow for further study engaging these key constituencies, something like that.
Are you comfortable with that? And if you can just leave us to noodle the language. Thank you.
That takes us, then, to paragraph 20, which is digital assets in the Criminal Code.
Senator Batters: As I’ve voiced on this one before, I know that this is fairly neutral, but at the same time, we heard zero evidence about this whole topic, which can be quite an important topic — digital assets. All we heard were a few sentences from the minister in his opening remarks and then a few of us asked him a question or two about it. We might have heard a few answers to questions from officials that day, but we didn’t have any evidence. I’m really uncomfortable saying much of anything about this topic.
The Chair: Paragraph 20 is pretty factual, don’t you think?
Senator Batters: I think so, but we didn’t hear any evidence, so I don’t know if we should be calling on the Minister of Justice for different things.
The Chair: With respect, that would come later. This one really describes what the Attorney General told us the provisions do. It’s hard to say we didn’t hear evidence on the fact of what it was intended to do. It becomes more normative, I grant you, in paragraph 21 and maybe 22.
Where are we, firstly, with paragraph 20? Are we okay with paragraph 20 describing this?
Now the question — and this is closer to the heart of Senator Batters’ point — it begins to declare a perspective on this, recognition of the challenges for criminal investigations about digital assets and currencies. I thought we did hear evidence about that, to be honest. I haven’t gone back and read the testimony, to be fair.
Thoughts on this? Are we comfortable saying this or should we take it out?
Senator Dalphond: I think there were some questions about the resources that the RCMP would have to devote to the enforcement because these are sophisticated types of crimes with sophisticated equipment.
Senator Pate: What about just saying that the committee heard evidence about the challenges? It’s certainly in the public right now.
The Chair: Excellent. “Heard evidence regarding,” is that okay? It won’t entirely satisfy Senator Batters, but it moderates the kind of assertiveness of the committee’s viewpoint on this.
Are we in favour, then, of the language of paragraph 21 with that adjustment? Thank you, Senator Pate.
Paragraph 22, we are calling on the Minister of Justice.
Senator Tannas: I wonder if we should just take it out. As we’ve said, we didn’t really get enough stuff that we should be giving our opinion.
Senator Jaffer: Thank you, Senator Tannas.
Senator D. Patterson: It seems to me that the discussion that we’re hearing from Senator Batters is we didn’t have enough time, and we don’t have the evidence to make a recommendation. It really goes to this issue about cramming a whole bunch of stuff into an omnibus bill. Everyone is agreeing around the table. I wonder if we’re getting around to another nuance in the general observation where we could say that there were a number of instances where the committee was frustrated or felt that there wasn’t enough time or enough evidence to form definitive conclusions about these important areas.
I just went back to the general observations, and it does say these important questions require in-depth study, but the truth is that we are finding with these important areas that we just didn’t have enough time or evidence to really come to conclusions. I wonder if that could be added to the general observation in some instances.
The Chair: Could I make a suggestion at the end? This is now expressing my own view on this. Especially with respect to the criminal law, this is not the mechanism by which the criminal law should be amended. It is troubling enough that we do this in piecemeal ways, bill by bill. Sometimes we are the authors of our own misfortune by crafting a bill that does that.
But I think this is unfair to the process, especially in an area that is important for this committee. I’m making the criminal law side of it the most significant here. This is really not the best way for us to do our business.
I’m wondering if we should write a paragraph at the end saying that given the responsibilities of this committee, particularly in areas of criminal law, the committee finds this a problematic approach to amendments when amendments to a range of laws, including the criminal law of Canada, are done in an omnibus bill. Would you be comfortable if we made a statement at the end of this?
Senator Jaffer: I don’t know if anyone really has an appetite to go further because we’re not really in a position to, in my opinion, reject anything because it’s the budget. They throw everything in there knowing that we can’t really do much about it. We can’t suggest amendments. We’re really tied. We’re really not doing the work we’re supposed to do.
I’m uncomfortable saying that we don’t have the time because there’s nothing that would stop us saying, “No. Wait, we need more time.” We don’t do it because we comply with it, but there will come a time — I’m not saying this time because we’re done now — when we will have to say, “No. We’re not meeting this deadline.” But that is for another day.
Senator Pate: In your last recommendation, it really is a bit of a repetition of the beginning, what was originally recommendation 4. Do we want to say it twice or do we strengthen the first one before we then go into the rest?
The Chair: I think that’s good advice. This would be more evident if it’s stated in number 4.
Senator Pate: I don’t know if people are comfortable with this, but I started scribbling on here. For paragraph 22 as it currently is written, I thought perhaps something like “The committee is unable to assess the appropriateness of tools and procedures developed.” I’m suggesting that because there is so much in the media right now about artificial intelligence, or AI. People are saying we’re in a dire circumstance. Lord knows I have no idea how to assess that, but I think expressing that we don’t feel we’re able to assess the appropriateness of this is fine to be up front and put on notice that the government needs to figure out how to get that kind of expertise.
The Chair: I like that, “The committee was unable to assess.” That’s pretty accurate. We might conclude that sentence in a more factual way about the tools and procedures needed to respond to evolving challenges inherent in these searches and seizures, something like that. Agreed?
Are we agreed?
Hon. Senators: Agreed.
The Chair: Thank you, Senator Pate. That’s very helpful.
We would retain the point we make in paragraph 23, which, again, is a frustration about the need for a separate bill. We’ll write something along the lines that I just described and we’ll put it in the general observations up front. If you’re comfortable, we’ll make specific reference to the criminal law.
Hon. Senators: Agreed.
The Chair: Now we come to the conclusion. I’m inviting the consideration of the following motion:
That the draft of the report, as amended, be adopted and that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report, taking into consideration this meeting’s discussions and with any necessary editorial, grammatical and translation changes required.
Senator D. Patterson: Before we do that, the motion sounds okay, but can I go back to paragraph 13? Did I understand that we agreed to take out the sentence — and this is Canada Post — that “The committee therefore recommends that Parliament and the Government of Canada give urgent attention to addressing these concerns.” Is that still in there?
Senator Batters: That’s it.
Senator D. Patterson: Okay. I just wanted to make sure that’s still in there. It’s the next paragraph. Sorry, Mr. Chair.
The Chair: We’re still there with that one. All right.
Returning to the motion regarding adopting the draft report with those qualifiers, is it agreed that we proceed in that direction?
Hon. Senators: Agreed.
The Chair: Thank you. Is it agreed that the chair be authorized to table the report in the Senate or with the Clerk of the Senate at the earliest opportunity?
Hon. Senators: Agreed.
The Chair: Thank you. I don’t think there is any other business for today’s meeting. In light of that, I declare the meeting adjourned. Thank you all for your diligence and the team that has put this together.
(The committee adjourned.)