THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 21, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:32 a.m. [ET] to study Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews).
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning, honourable senators.
[English]
My name is Brent Cotter. I am a senator from Saskatchewan and chair of the committee. I am now going to invite my colleagues to introduce themselves, beginning with the deputy chair.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Carignan: Good morning. I am Claude Carignan from Quebec.
Senator Dalphond: Good morning. My name is Pierre J. Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
Senator Audette: Kuei. [Innu-Aimun spoken]. I am Michèle Audette from Quebec.
[English]
Senator Senior: Paulette Senior, Ontario.
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg.
[Translation]
Senator Gold: I am Marc Gold from Quebec.
Senator Aucoin: I am Réjean Aucoin from Cape Breton, Nova Scotia.
[English]
Senator McNair: John McNair, New Brunswick.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Arnot: Senator David Arnot, Saskatchewan.
The Chair: Thank you.
Senators, we are meeting to begin clause-by-clause consideration of Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews). It is sometimes referred to as the “David and Joyce Milgaard’s Law.”
To help us in our examination, we’re joined by officials from the Department of Justice. They’re here to answer technical questions that any members might have. In that respect, I’d like to welcome Nathalie Cyr, Deputy Chief Legislative Counsel (regulations) and Director, Public Law and Legislative Services Sector; and Julie Besner, Senior Counsel, Public Law and Legislative Services Sector. We had shoved them off into the corner a little bit anticipating high demand for seats around the table, but depending upon where we stand, we could bring them to the table if there are questions. Welcome and thank you for joining us.
I have a few reminders with respect to clause-by-clause consideration. I think you are familiar with these, but let me cover them in any event.
First, if at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that, at all times, we have a common understanding of where we are in the process.
Second, in terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be addressed and will be proposed in the order in which they appear as lines in that clause.
If a senator is opposed to an entire clause, as we come to it, the proper process is not to move a motion to delete the clause but, rather, to vote against the clause as standing as part of the bill.
Fourth, some amendments that are moved may have consequential effects on other parts of the bill or, in some cases, other amendments. It is therefore useful to this process if the senator moving an amendment identified to the committee at that time other clauses in the bill where this amendment could have an effect. Otherwise, it will be difficult for members of the committee to remain consistent in their decision making and have a full understanding of what is on the table.
Fifth, because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which ones may be contradictory. The clerk will do his best to assist us in that regard, but that may take a little bit of time for reflection.
If committee members ever have any questions about the process or the propriety of anything occurring, they can raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion and make a ruling. The committee is the ultimate master of its business within the bounds of established by the Senate, and any ruling on a point of order can be appealed to the full committee by asking whether the ruling shall be sustained, in which case we would take a vote.
I wish to remind honourable senators that if there is ever any uncertainty as a result of a voice vote or a show of hands, the most effective route will be a roll-call vote and for you to request one, which obviously will provide unambiguous results.
Finally, senators should be aware that any tied vote negates the motion in question.
We have a collection of people here today. Not all of you are entitled to vote, although we do have some welcome visitors who are entitled to vote. I’ll make that clear in terms of voting entitlements if we come to questions of roll-call votes.
Are there any questions at this point?
Senator Batters: It might be helpful right now to just say who is entitled to vote and who is not.
The Chair: Sure. Let me describe this script, and then I’m going to invite the clerk to identify the voting members of the committee.
Honourable senators, in the context of there being a request for a vote, I will then ask the clerk to name all of the senators present who are entitled — but I’ll do that now at this time — but I will repeat it as necessary, subject to your wishes.
Just a reminder that if any member present does not wish to vote — that is, a person who is eligible to vote does not wish to vote — you may withdraw from the table. The clerk will then call the members’ names, beginning with the chair, followed by remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote, and I will then declare whether the motion has carried or has been defeated.
I’m now going to invite the clerk to identify the people who are eligible to vote, assuming they are present.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Cotter, the Honourable Senator Batters, the Honourable Senator Arnot, the Honourable Senator Aucoin, the Honourable Senator Audette, the Honourable Senator Carignan, the Honourable Senator Clement, the Honourable Senator Dalphond, the Honourable Senator Gold, the Honourable Senator McNair, the Honourable Senator Pate, the Honourable Senator Prosper and the Honourable Senator Simons.
The Chair: Colleagues, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-40, An Act to amend the Criminal Code, to make consequential amendments to other Acts and to repeal a regulation (miscarriage of justice reviews)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Here, I think Senator Carignan has an amendment. Senator Carignan, the floor is yours. I’m going to invite you to move your amendment and read it into the record.
[Translation]
Senator Carignan: I have an amendment. In studying the bill and listening to some of the comments we heard from witnesses, including those from victims’ rights groups, I thought it was appropriate to propose an amendment to allow the victim or the victim’s representative, if the victim is dead, to participate in the judicial review process. The amendment reads as follows:
That Bill C-40 be amended in clause 2, on page 1, by replacing line 7 with the following:
“1.1 The portion of subsection 2.2(1) of the Criminal Code before paragraph (a) is replaced by the following:
2.2 (1) For the purposes of sections 606 and 672.5, Part XXI.1 and sections 715.37, 722, 737.1 and 745.63, any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf:
2 Subsection 679(7) of the Act is re-”.
It merely builds on the definition of a victim already provided for in the Criminal Code by adding the new part dealing with the miscarriage of justice review process.
I will have subsequent amendments to ensure that the victim is consulted throughout the process.
[English]
Senator Batters: We had the victims’ ombudsperson and considerable evidence from different victims’ groups and people representing those groups talking about the necessity in this bill of not only protecting the rights of those who had been potentially wrongfully convicted but also those who had thought their cases they had been victims of had been long dealt with under the judicial system. If, all of a sudden, it comes out that, no, actually, that person may have been wrongfully convicted, there are some pretty serious situations where victims need to have their voices properly heard.
It comes first in the bill, so that’s why Senator Carignan is dealing with it right off the bat here, but it’s more of a consequential amendment to some of the other amendments that are in his package dealing with the importance of having victims notified as well as, of course, people who have potentially been wrongfully convicted.
I support this, because I think that is a very important thing.
Senator Arnot: I don’t agree with an amendment in this case. I don’t think it’s necessary. I think that equity and fairness will prevail. It’s an administrative tribunal. Following those rules, if it did happen, it would compound a wrong. Therefore, it is something that is foundational and a matter of policy for the commissioners to deal with, which all lays a foundation for something we’ve all heard. We need to have very competent, experienced commissioners to deal with these issues, because it’s so important.
Senator Carignan has made a number of points, and I’ll speak to some of them right now, if I may, just to say that I agree in principle with the ideas, but with respect, Senator Carignan, I think the amendments incorporating victims in the proposed legislation already, in fact, require the commission to inform and respond to victims, and victims of the primary crime and their families, according to a briefing from the Department of Justice, may receive as much or as little correspondence as the commission may desire and as they may desire. I think we need to remember that there are some victims who won’t want to be notified, who won’t want to participate, and that’s a nuance that your amendment doesn’t address.
I’ll speak to the others as they come up, but I do want to say that the committee has heard from the Federal Ombudsperson for Victims of Crime, Benjamin Roebuck. He’s fully prepared to work with the new commission to develop a policy surrounding victims and develop the practices that would support those victims, which I think is encouraging. The bill obviously requires the commission to adopt policies related to the notification of victims. There’s a need for nuance and sensitivity here, and I think we all understand that some victims won’t want the amount of mandatory notification that these amendments would require. They don’t want to be revictimized, in effect.
The Chair: If there are others who are expressing opposition to the amendment, I’d like to give Senator Carignan the opportunity to address them, even as a group, if you’re all right with that, Senator Carignan?
[Translation]
Senator Carignan: It can wait until the end.
[English]
Senator Gold: Thank you, Senator Carignan, for bringing this forward.
I just want to put on the record that the government does not support this amendment for the reasons that Senator Arnot underlined, and to underline, as well, that my understanding is that, although the victims’ ombudsman did ask for more clarity about victim notification, and, indeed, the Canadian Resource Centre for Victims of Crime, Sarah Crawford, wanted the bill to include provisions for victim notification, which it does, neither demanded nor asked for the committee to introduce mandatory notification at all stages.
Senator Dalphond: I would like to point out a proposed section on page 10 of the bill:
696.83(2) The Commission must adopt policies respecting . . .
(d) the provision of notices and other information to applicants, to their representatives, to attorneys general and to other interested persons, including victims; . . .
The law recognizes the victim as an interested person in the process, and the law makes it compulsory for the commission to adopt policies regarding provision of notices to these victims. Quite frankly, I think it’s covered. I understand the purpose of the amendment, but this purpose has been addressed in the draft of the legislation and, therefore, I will not support the amendment.
[Translation]
Senator Carignan: Thank you for the clarification, senator.
Obviously, I saw that directive or policy, but I think it is important to specifically lay out in the bill the circumstances in which it would be mandatory to notify the victim, or their representative if the victim is dead. The bill should explicitly state that it is essential to notify the victim because the directive is drafted in such a way that the victim could be notified only at the end of the process or measures could be taken to protect the victim’s physical or psychological well-being, or otherwise. Under the Canadian Victims Bill of Rights, victims have a fundamental right to participate in every step of the judicial process. If it is to be respected, that quasi-constitutional right must be laid out in the bill.
The other point I would make is that the government is showing very little understanding and sensitivity to what victims go through. The process to release an offender because of a miscarriage of justice may be very difficult for a victim to understand and could be retraumatizing.
When the murderer, rapist or killer is found guilty, it gives victims some peace of mind. Reopening that wound is painful. It’s important for victims to participate in the process, if only to help them come to terms with the decision that a miscarriage of justice occurred. If the victims are notified, if they can participate fully and make submissions, they will understand what happened and have an easier time coming to terms with the fact that the person they believed to be the killer or rapist was wrongfully convicted and that someone else is guilty. It is therefore fundamental that the victim or their representative be fully involved in the process and that their participation not be dependent upon a policy adopted at the discretion of the current chief commissioner. A stronger provision is necessary in order to respect the Canadian Victims Bill of Rights.
[English]
Senator Dalphond: I’ll be brief and just say that we’re dealing here with people who are the victims of a process. They claim that they were innocent and are going to ask for a review of the process.
I’m sure the victims are not looking for a wrongfully convicted person to stay in jail because it brings them some peace. I saw some cases. I referred to one in my speech about this lady who said, “I testified, but I was wrong. It was not this person. I want him to get justice.” It took 12 years for the person to get justice and to be found not criminally responsible for the murder that he had not committed.
We understand the victims, but we also understand that the process here is designed first to deal with the applicants. There are two phases. First, there is the screening phase, and then later there may be the investigation phase. Notices are not necessarily required when you are at the screening phase, but they would be required if you go to the formal review of the file and you come close to a conclusion that it should be sent back to a court, either the Court of Appeal or the trial court. In both cases, whether it is the Court of Appeal or the provincial or superior court, the victims will be, according to the Criminal Code provisions, entitled to notice and limited participation. I think it’s important to realize that.
The second thing I would like to disagree about with my learned colleague is that he says it’s up to the discretion of the commission. The law is clear. The commission must adopt policies respecting notices to interested persons, including victims. There is no discretion. They have to adopt a policy. They have to give notice. I’m sure that they will be intelligent enough not to give notices of everything they do, every file they open and everything else, but when the time comes for an investigation stage, they will inform the victims.
Senator Batters: With respect to a few of these comments that Senator Dalphond has made, first of all, the victims want justice as well. We could have a process, as we’ve heard throughout the study of this bill, and it could be a lengthy process. All that’s referred to in this bill is “as expeditiously as possible.” It could be a lengthy process before we ever get to a potential new trial or appeal. These victims, throughout that lengthy process, need to have the necessary provisions of being informed about what’s going on because, yes, they definitely want the right person to be responsible for the crimes that they’ve been subject to, but they want to make sure that they receive justice as well.
Then, with respect to the provision that Senator Dalphond was pointing out on page 10, subclause (2), “The Commission must adopt policies,” I would say “policies” is a far cry from having something enshrined in the actual law.
Especially, let’s also remember that it’s possible that as few as one third of the commissioners could potentially be lawyers. We need to keep that in mind as well. I’m hopeful that people will be extremely well trained, but we also need to make sure that as much as possible is actually enshrined in the law because we could potentially have many people as part of the commission who are not legally trained.
Senator Gold: It’s my understanding that the commission will have the benefit of a victim services coordinator who will be supporting victims and will be assisting with the development of policies, especially policies relating to victim notification and compliance with the Victims Bill of Rights. I wanted to clarify that for the record.
[Translation]
Senator Carignan: Senator Gold, where in the bill do you see the victim services coordinator?
[English]
Senator Gold: I said it was my understanding. I can’t point to the specifics, but that’s the advice I had in terms of the overall process, Senator Carignan.
[Translation]
Senator Carignan: There is no provision in the bill for a victim services coordinator, Senator Gold.
In response to Senator Dalphond’s point, I want to say that it is certainly not my intention to revictimize a person who was wrongfully convicted. This is a cause I care about. I introduced a bill to streamline the DNA identification system so that people are not wrongfully convicted and so that things are done the right way. Some voted against it. That said, even if the commission has a duty to adopt policies, the bill doesn’t say what the policy must contain with respect to consulting victims. That is where the commissioner’s discretion comes in.
I stand by the fact that we need these provisions in the bill to respect the Canadian Victims Bill of Rights. I would like us to vote on the amendment.
[English]
Senator Gold: My understanding was based upon the announcement that there would be funding for this victim services coordinator. You’re correct, Senator Carignan, that it doesn’t appear in the bill, but the government has made its intentions clear and provided funding to that effect.
Senator Batters: On the victim services coordinator, we’ve heard here that there’s nothing stated that it would be a full-time person, a part-time position or a contract position. We don’t know what it could be. There is nothing specified as far as that. It could be, I hope, very robust. We don’t know that.
The Chair: I think that concludes debate on this, and I’m going to now move to the question, unless there is objection.
It has been moved by the Honourable Senator Carignan that Bill C-40 be amended in clause 2, page 1 at line 7 by — may I dispense?
Hon. Senators: Agreed.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “no”s have it. Do you want a roll call?
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays, 11; abstentions, 0.
The Chair: Colleagues, I declare the motion in amendment defeated.
Shall clause 2 carry?
An Hon. Senator: On division.
The Chair: Thank you.
This invites us to move to clause 3. Shall clause 3 carry? Senator Carignan, you have amendments with respect to clause 3?
[Translation]
Senator Carignan: Clause 3, yes. It seeks to amend the definition of a court of appeal.
[English]
The Chair: Can I just do what Senator Batters did and interrupt for a second to make sure people are precise about which amendment?
[Translation]
Senator Carignan: It’s number CC-C40-3-2-13.
The Chair: Thank you.
Senator Carignan: Honourable senators, I move the following:
That Bill C-40 be amended in clause 3, on page 2, by replacing line 13 with the following:
“plication was heard or the Court Martial Appeal Court of Canada. (cour d’appel)”.
This would amend the definition of a court of appeal to include the Court Martial Appeal Court of Canada. I have another amendment that pertains to the military justice system, specifically cases tried under the courts martial system because they involve criminal offences committed by members of the military. The purpose is to close a gap in the bill, since it does not cover members of the military found guilty of criminal offences under the courts martial system. Obviously, that is unfair because members of the military who were wrongfully found guilty would not have access to the same Miscarriage of Justice Review Commission as civilians. This amendment to the definition of a court of appeal makes clear that the same process is available to members of the military who were wrongfully convicted.
[English]
Senator Arnot: This amendment and the next amendment that Senator Carignan is purporting to have us adopt adds the possibility for the new commission to review applicants asserting they were wrongfully convicted under the National Defence Act. In that regard, we really didn’t hear any evidence in the committee in front of us that there had been wrongful convictions that had occurred in the military justice system. That is not to say that they have not occurred, but it’s not what we heard.
I have also been informed by officials of the Department of National Defence who say that they are aware of the absence of specific measures in the current existing ministerial review process and in this bill, Bill C-40. The idea of incorporating the military justice system into the general miscarriage of justice review process, including the new commission, could and, perhaps, should be examined in the future. This would require a detailed assessment of policy and statutory considerations, not only of the Criminal Code but also the National Defence Act, and this work would have to be done in consultation with the Department of National Defence, the Judge Advocate General and, of course, members of the Canadian Armed Forces.
I feel that Senator Carignan’s motion here to make an amendment, while I understand what he’s trying to do and I agree with the spirit of what he’s trying to do, would not be prudent, in my opinion, to proceed with without having heard further evidence, more witnesses and others from other departments.
Senator Dalphond: Just to add to what Senator Arnot said, I also would not be supportive of that for the following reasons.
I refer first to the testimony of Mr. Curtis on behalf of the U.K. Criminal Cases Review Commission. Senator Carignan himself asked a question to Mr. Curtis about this. The answer was that over 27 years, the British commission has reviewed 32,000 cases, and he added that maybe 10 or 20 have been from the military court. It seems that the military court system is generating fewer miscarriages of justice, but I don’t know why. But the fact is that it’s less than 1% of the cases in the U.K., and even 1% would be 300 cases. We’re talking of an infinitesimal proportion.
The second thing that was said by another witness in answer to Senator Carignan was by Professor Roach of the University of Toronto, and he said that they didn’t examine that specifically in their consultation, that aspect. He added that in England, that was added to the English commission later on after the original legislation was adopted.
Then we had another witness, Mr. Lockyer, who is from Innocence Canada. That is the group that started with the Guy Morin case and became very famous for taking over this case of miscarriage of justice and doing that on a voluntary basis and with assistance of lawyers and a special fund. I asked him specifically the question: Did you have any case of somebody knocking on your door and saying that he has been the victim of a miscarriage of justice from the martial court? His answer was, “We’ve never had an application on a court martial conviction . . .” The next question was how many applicants did you have over the years? And he said it was over 250.
Maybe it shows the same thing that the English commission has been experiencing. This is not something which is very regular. That being said, however, it does not mean that there shouldn’t be a review for miscarriage of justice through military courts, if there were any, but I think that would be better left in the review of Bill C-66, which is reviewing the military justice system and which is before the other place for consideration. If they want, they could include that, and that could be done in a reasoned way.
Here, I have to refer to the fact that if we add this, it would refer to all federal laws that are covered here. That would mean that those that go to the martial court, including for petty offences that are provided in the Defence Act, would have a right to go to the commission. I think this is an issue of concern. Professor Roach, commenting on that option, said:
My only concern will be — and it’s a concern actually with the bill — that we want to make sure, because there are limited resources, that these are criminal convictions. If there was a significant stigma and impact on a soldier wrongfully court-martialled, I think that they should have access to the commission. But I don’t think for every minor infraction. For example, it seems to read any federal act now. Maybe you could fit that in the National Defence Act, but if that’s true, I would worry that it might be far too broad.
He was considering the limited resources of the commission.
I think this issue is properly left to the consideration of Bill C-66, where the very valid arguments that Senator Carignan is raising could be considered and be maybe limited to what is amounting to criminal convictions under the Defence Act and not any kind of infraction under the Defence Act. We also did not hear witnesses from the military to explain to us what kind of offences they can commit and where it goes and what goes to the Court Martial Appeal Court of Canada.
Thank you, Mr. Chair.
Senator Batters: I have just a few points on this.
First of all, as Senator Dalphond just noted, Bill C-66, which is only at second reading in the House of Commons, does not include such wrongful conviction review provisions for that system. Senator Carignan has drawn that out in testimony here, so that’s why it’s important that I think we deal with it. Even though, perhaps, there hasn’t been such a situation yet in Canada, we certainly don’t want to preclude the fact that it could happen, especially because this wrongful conviction review process contained in Bill C-40 is very wide-ranging, actually, and it has not been limited. In fact, it’s deliberately wider in scope, so that’s why it seems like it’s appropriate to have this in it as well.
Dealing with the U.K. system, perhaps they only added it later because they hadn’t initially thought of it when the bill was initially introduced. We don’t know why they added it later, but here we have the opportunity before the bill is passed to begin with to, perhaps, ensure that this bill is as good as it can be right off the bat, and I think when we have those sorts of situations, that’s a good time to do it.
As well, dealing with Innocence Canada, they generally have been preoccupied with murder cases, and, again, this wrongful conviction process here has a much wider scope, so perhaps that’s why they haven’t seen these types of cases as well. Thank you.
[Translation]
Senator Carignan: It’s funny to hear Senator Dalphond say, on one hand, that this does not happen very often, so we shouldn’t deal with it —
Senator Dalphond: That’s not what I said.
Senator Carignan: — and, on the other hand, that there are too many cases and we shouldn’t include them right off the bat.
Senator Dalphond: That’s not what I said.
Senator Carignan: First of all, Justice LaForme said that a remedy should always be available, regardless of the miscarriage of justice. There is no reason to distinguish between members of the military and civilians.
Second of all, right after this, I will be proposing another amendment to limit the military justice provisions that would be covered. I had to propose amendment number 2 before amendment number 3 because of the sequencing of the amendments. The purpose of amendment number 3 is to limit the application to offences punishable under section 130 of the National Defence Act. This provision specifically covers the provisions in the Criminal Code. The idea is to ensure that members of the military have the same rights as civilians, nothing more, nothing less. I see absolutely no reason not to extend the same right being granted to civilians to members of the military who are wrongfully found guilty. Members of the military are no less important than civilians.
Senator Audette: My understanding, Senator Carignan, is that the senator referred to the quantity of cases, but he also finished his sentence by saying that the matter warrants consideration, no matter how many cases there are.
I’m glad to hear that Bill C-66 is at second reading. You are part of a caucus, and you have that communication with your colleagues in the other place. It may be advisable to start this process now and to propose what you just proposed here in connection with a more appropriate bill. Personally, I will instead encourage changes that could be made in the other place. Since we don’t have a caucus, however, who are we to tell you what to do?
I will not be supporting this amendment, but I’m confident that you will pass it on to your colleagues in the other chamber. Thank you.
Senator Carignan: I’m not sure whether that is an argument I need to respond to.
Senator Audette: You don’t have to. You are lucky that way.
Senator Dalphond: It’s a suggestion.
Senator Carignan: I didn’t think I had any more power than an independent senator did.
Senator Audette: I was referring to the caucus.
Senator Dalphond: Your future is brighter than ours.
[English]
The Chair: Colleagues, I think we have concluded debate on this. I just want to bring to your attention the point Senator Carignan made at the end of his last intervention, which is that the next amendment contemplated that makes reference to offences punishable under the National Defence Act or Youth Criminal Justice Act would also be out of order and invalid if you defeat this amendment. They are partners, if I can put it that way. I wanted to alert you to the implications of your vote on this.
I’m going to now invite the question. It is moved by the Honourable Senator Carignan that Bill C-40 be amended in clause 3 on page 2, line 1 by — may I dispense?
An Hon. Senator: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I think the “no”s have it. Roll call vote?
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays, 11; abstentions, nil.
The Chair: Thank you. I declare the motion in amendment defeated.
This invites us to skip over the next motion. I think that’s acceptable, Senator Carignan?
[Translation]
Senator Carignan: My next amendments are no longer relevant.
[English]
Senator Batters: If I could make a comment: Given that this was just defeated and we have the government leader sitting here, perhaps he could relay to his colleagues in the government that they may want to consider, while Bill C-66 is still at an early stage in the House of Commons, that they include such a wrongful conviction review process for that system as well.
Senator Gold: I certainly would be happy to pass that on. Thank you, Senator Batters.
The Chair: We’re continuing with clause 3 and amendments to clause 3. I will invite Senator Carignan to propose his amendment. I will read out the numbers. This is CC-C40-3-3-5.
[Translation]
Senator Carignan: I don’t think there is a point.
Senator Dalphond: This one pertains to provision 1, the first one.
Senator Carignan: There is no point, because it basically relates to the first one.
[English]
The Chair: 3-3-5 relates to notification of victims. This amendment could stand independently, if you wish.
[Translation]
Senator Carignan: I will go ahead and move it. My arguments are the same.
[English]
The Chair: We have heard discussion about the place of victims, and there’s been decent coverage of this, but I guess not sufficient coverage for Senator Arnot, who wants to intervene.
Senator Arnot: I oppose it for the reasons that I’ve stated.
The Chair: I think what we got so far is that Senator Carignan advances it for the reasons he stated and Senator Arnot opposes it for the reasons he stated.
Senator Arnot: Trying to be concise.
Senator Batters: I feel like we have a bit of time. We have been studying this bill for several weeks, and I think that it’s necessary to state on behalf of victims that they are also victims of a potential wrongful conviction process. A person that has perhaps been convicted and gone to prison is the person they thought committed the crime either against them or their loved ones, and now they’re in the situation where they don’t know what the heck has happened and who might be still out free in society that has committed this crime against them. It’s very critical, and we heard a number of different times from victims groups that these types of notifications are required, both — sure, in policy, but also it’s essential that it be part of the actual bill.
The Chair: Thank you. Are there further interventions?
Senator Dalphond: I repeat what I said.
The Chair: Thank you, Senator Dalphond.
I think at this point, if there are no further interventions, I’ll call the question on this. Colleagues, it is moved by the Honourable Senator Carignan that Bill C-40 be amended on clause 3, page 3 at line 5 by — may I dispense? I guess we never actually read it. Do you want me to read it, or do you want to read it?
[Translation]
Senator Carignan: Honourable senators, I move as follows:
That Bill C-40 be amended in clause 3, on page 3, by adding the following after line 5:
“(1.1) The Commission must notify the victim of the application without delay and provide the victim with an update concerning the status of the application on a regular basis.”.
[English]
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I think the “no”s have it. Roll call vote.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honorable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays, 11; abstentions, 0.
The Chair: Colleagues, I declare the motion in amendment defeated.
Carrying on with clause 3, there is a further amendment from Senator Carignan entitled CC-C40-3-4-11.
[Translation]
Senator Carignan: For the same reasons, I move:
That Bill C-40 be amended in clause 3, on page 4, by replacing line 11 with the following:
“(5) The Commission must notify the applicant, the victim and the”.
Here again, it’s about including the victim in a specific way.
[English]
The Chair: I think I need to interrupt you, Senator Carignan. I apologize. I’m on the one before that, which is 11. It sounded to me like you were reading 19. I think I’m the one who is mistaken. I had the English, and the English was wrong. Please proceed. Maybe you could begin again, because I interrupted your presentation of the amendment.
[Translation]
Senator Carignan: The reasons are the same. I already read it, but the idea is to bolster the victim’s right and to guarantee that the victim will be notified and will be able to participate at every stage of the process, including the one set out in clause 3, on page 4.
[English]
The Chair: Thank you. Are there further comments?
Senator Arnot: I just want to point out that this new commission will be subject to the Canadian Victims Bill of Rights, which has primacy in Canada. Victims of crime have rights to information, protection and participation that must be upheld. A commission on the miscarriages of justices should also address the ways the justice system failed those victims. There are two categories of victims — those who were wrongfully accused and then wrongfully convicted, but also the collateral victims, which we’ve spoken about. I just want to make that point. Thank you.
The Chair: Seeing no further interventions, colleagues, I’m going to invite us to turn to a vote on this proposed amendment.
It is moved by Senator Carignan that Bill C-40 be amended at clause 3, page 4, at line 11 by — may I dispense?
Hon. Senators: Dispense.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “no”s have it. Roll-call vote.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honorable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays 11; abstentions, 0.
The Chair: Colleagues, I declare the motion in amendment defeated.
That brings us to the next of Senator Carignan’s proposed amendments, CC-C40-3-4-19.
[Translation]
Senator Carignan: Fellow senators, I move as follows:
That Bill C-40 be amended in clause 3, on page 4,
(a) by replacing lines 19 and 20 with the following:
“(2) The Commission must send a notice to the applicant, the victim and the relevant Attorney General indicating whether”;
(b) by replacing line 24 with the following:
“cant, the victim and the Attorney General may provide further infor-”.
These amendments, too, are about notifying the victim, and I want to point out that this needs to happen as soon as the commission decides to conduct an investigation. That is an extremely important part of the process. Once again, my view is that the victim should be involved in the process.
[English]
The Chair: Seeing no further interventions on this, I’m going to call the question.
It has been moved by the Honourable Senator Carignan that Bill C-40 be amended in clause 3, on page 4, at line 19, by — may I dispense?
Hon. Senators: Dispense.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “no”s have it. Roll call.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honorable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays, 11; abstentions, 0.
The Chair: I declare the motion in amendment defeated.
That brings us to the next of Senator Carignan’s proposed amendments, CC-C40-3-5-3.
[Translation]
Senator Carignan: I move as follows:
That Bill C-40 be amended in clause 3, on page 5, by replacing line 3 with the following:
“plicant, the victim and the relevant Attorney General.”.
I want to point out that this pertains to the copy of the commission’s investigation report that must be provided. I propose that a copy be provided to the victim as well, which strikes me as a very basic requirement.
[English]
The Chair: Further comments or interventions? Seeing and hearing none, colleagues, I will call the question.
It was moved by the Honourable Senator Carignan that Bill C-40 be amended in clause 3, page 5, line 3, by — may I dispense?
Hon. Senators: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “no”s have it. Roll call.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honorable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays, 11; abstentions, 0.
The Chair: Colleagues, I declare the motion in amendment defeated.
That brings us to the next of Senator Carignan’s amendments, numbered CC-C40-3-6-20.
[Translation]
Senator Carignan: Again, this has to do with who the commission must notify of its decision. This, too, strikes me as a basic right. The amendment reads as follows:
That Bill C-40 be amended in clause 3, on page 6, by replacing line 20 with the following:
“(7) The Commission must notify the applicant, the victim and the”.
[English]
An Hon. Senator: Same points.
[Translation]
Senator Carignan: Absolutely. The further along the process is, the more fundamental it is, since this is about the commission’s decision to grant a remedy. Not notifying the victim really strays from the principles of a rights-based society.
[English]
The Chair: Seeing no other interventions, I’ll call the question.
It is moved by the Honourable Senator Carignan that Bill C-40 be amended in clause 3, at page 6, line 20, by — may I dispense?
Hon. Senators: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “no”s have it. Roll-call vote.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: No.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: No.
Mr. Labrosse: Yeas, 2; nays, 11; and abstentions, 0.
The Chair: I declare the motion in amendment defeated.
Those include all the proposed amendments to clause 3. Shall clause 3 carry?
An Hon. Senator: On division.
The Chair: On division. Thank you.
Shall clause 4 carry? We have amendments.
Senator Batters: My amendment is DB-C40-4-9-9.
I move:
That Bill C-40 be amended in clause 4, on page 9, by deleting line 9.
I decided to only bring one amendment despite the fact that I’ve heard much evidence about many amendments that could have been prepared and introduced on this bill. I decided to bring what I saw as maybe the most important one, and that deals with the independence of the commission.
What we heard testimony from the actual justice who wrote the report on this, Justice LaForme, along with Professor Roach, when they were in front of our committee to testify. They had gone through Bill C-40, determined which amendments they thought were the most important ones — not just picking apart all of the different things that differed from their report. This was one of the ones they thought was the most important.
This amendment deletes that one line, which would have the effect of not allowing commissioners to be reappointed by the government. That is fundamental because, as Professor Roach said when he testified in front of the committee on October 30:
. . . the renewable terms for commissioners are, in our view, a bad idea that undermines independence from government. We would not accept renewable terms for judges. As outlined in our brief, the government’s refusal to renew at least one commissioner because of objections to his or her stance has caused problems and helped to undermine public confidence in the English commission.
Then Justice LaForme echoed that comment when he said in his testimony:
First, the thing that bothers me the most is the independence. I don’t think that this personal structure is going to result in independence.
Then, looking at the briefs they provided to our committee in dealing with that, they had this portion stating that commissioners’ terms should not be renewable. That’s the subheading, and it says:
Bill C-40 allows renewable terms for the commissioners. This raises concerns about whether the prospect of being reappointed or not for another term could comprise or be seen to compromise the independence of commissioners. Canadians would never rightly accept such arrangements for judges. We should not accept it for a commission. We recommended nonrenewable terms for commissioners. This was to ensure independence from the government. We would also direct the committee to troubles that the English CCRC had when the government refused to appoint a commissioner who had opposed government attempts to make the CCRC more efficient, given what many have concluded is its inadequate budget.
Then the brief goes on to say:
The renewable nature of the appointments and the English dispute over government interference in a reappointment have the potential to undermine the independence of the new commission that is essential if applicants are to have confidence in the commission. No one would accept renewable seven-year terms for judges, and they should not be acceptable for a commission with the power, effectively, to overturn judicial decisions and require new trials and appeals to be held before the courts.
One of the recommendations, then, in that brief — they only made four recommendations, with proposed amendments to make the commission more independent. Number four of that is this:
We recommend that section 696.77(2), allowing the reappointment of commissioners, be removed.
So that is the exact amendment that I have brought.
The next day, we heard from Mark Knox, who was representing the Canadian Council of Criminal Defence Lawyers. He stated in his opening remarks:
We are very appreciative with respect to the concern that the miscarriage of justice review commission be independent. It must be independent from government. How? We support the observation that the commissioners’ term should not be renewable . . .
Then I asked him about that later in the meeting:
Very quickly to Mr. Knox, in your opening remarks, you were saying commissioner terms should not be renewable to support better independence of the commission. Would you support an amendment to Bill C-40 to remove the renewal provision that’s provided?
And Mr. Knox said:
Thank you very much, senator. I drew my position from the report that you referred to by Justice LaForme, Justice Westmoreland-Traoré and Mr. Roach. Yes, I think, as they put it, these commissioners should be independent of government. They should be in a quasi-judicial position, and, therefore, they should not be subject to government review.
So, on this, I think this amendment is critical for proper independence of the commission. The necessity of independence is basically the whole reason for this bill, so we shouldn’t allow certain provisions of Bill C-40 to undermine that independence. Allowing the federal cabinet to renew the appointments of these commissioners, perhaps depending upon whether the federal cabinet is happy with the decisions of a particular commissioner, is very problematic.
I know that some senators will talk about the timing of this bill and how can we possibly have amendments — we need to get it passed as soon as possible. We’ve been hearing these kinds of things for the last several weeks while we finally study this bill.
First, this is not a bill where the commission would commence immediately upon passage of Bill C-40. Even the Justice Minister has stated that he hopes the commission would be set up in about a year from when the bill passes, so we do have time to ensure this bill is better, especially on this crucial situation.
The House of Commons had this bill for almost 18 months. The Senate only received this bill on the very last day we sat in June. Then we had the summer break. As such, we’ve basically only had this bill for about two months. We’ve been dealing with it expeditiously. We’ve been studying it diligently at this committee, and if we’re going to have witnesses who come here, provide recommendations and learned advice, I think we should take that advice very seriously.
Also, I decided to propose this amendment after much consideration very early this morning, and after I decided that, I looked at the observations that are going to be potentially dealt with later in this meeting. I saw that Senator Simons had provided a draft observation that talks about this very issue. Her draft observation says:
The Committee observes, based on the testimony of expert witnesses before it, and in particular from the Criminal Cases Review Commission of the United Kingdom and the Scottish Criminal Cases Review Commission, that the independence of the Commission – both in public perception and in fact – would be enhanced by removing the possibility of the reappointment of commissioners. Consideration should be given to future legislative amendments that would foreclose the reappointment of commissioners.
So I say this needs to be amended, not just observed. The future is now. We don’t need to wait for a future time.
Frankly, if we don’t want the federal government to treat us in the Senate like a rubber stamp, we shouldn’t act like a rubber stamp. The House of Commons committee made major amendments to improve Bill C-40 when they studied it. Why can’t we? We are an equal, complementary chamber of Parliament. We must act like it; otherwise, why are we here?
I ask for your support in making this major change. The government is absolutely in a position — this is a government bill — that, once the Senate deals with it and passes it, if it’s amended, then it would go back to the House of Commons as a priority item with the message from the Senate indicating that this amendment was something that is necessary to be dealt with. The government has total control over how quickly that is dealt with in the House of Commons, and I think this is a critical matter.
Senator Simons: As Senator Batters correctly notes, I have considerable sympathy with this line of argument. As senators ourselves, we probably know better than anyone the freedom that comes with knowing that your government appointment is not up for review.
I had a question for Senator Batters and a question for Senator Gold, if that’s all right.
Senator Batters, this amendment deletes the single provision that states that a commissioner may be reappointed, but it doesn’t outright say that they can’t be reappointed, so does this amendment do what you would hope that it does?
The Chair: Do you want to pose your question for Senator Gold? I will then invite responses, if they’re willing.
Senator Simons: For Senator Gold, we understand the realpolitik of this moment and that things that are happening in the other place are completely beyond our power to predict or control, but if we had world enough and time, as Andrew Marvell would say, would the government be sympathetic to this amendment, or is there an actual argument beyond the practicalities of this moment to oppose it?
Senator Batters: Thank you for that question, Senator Simons.
Yes, I believe this amendment does what I want it to. It was the recommendation of Professor Knox and Professor Roach and Justice LaForme that the clause simply be removed. There was another option, actually, that was presented to me where, instead of having the clause removed, the Law Clerk’s Office said we could have a provision to say that commissioners are not eligible for reappointment.
What I said is that what always happens in these types of cases when they’re being considered later is — this is why it’s important to have these kinds of meetings in an open, public forum, because then they can see what the intention of parliamentarians was when they proposed the amendments and discussed them. Certainly, in addition to this, if I was so fortunate to have this amendment passed, I would also deal with it in my critic speech that I give in the chamber so that it’s on the record as far as the reasoning, and there would be no question about that.
So, yes, I believe that it is effective. We’ve had a couple of professors and a justice who did the overall report say that that is how they would do it. They’re certainly much more learned than me on these types of issues, and I decided to do it this way rather than the other way. If the committee was very much thinking that, “Oh, we want to make sure it’s definitely done the correct way,” and they believe the other way was better, certainly I would be amenable to that, but I think this accomplishes exactly what we need it to do.
Senator Gold: Thank you for the question. I’m pleased to answer.
The government opposes this amendment on policy grounds. I’m going to address some other issues as well, but, essentially, the possibility of reappointment was designed to allow the commission to develop both institutional knowledge and carry that forward, and that’s why it opens that possibility.
It’s also not uncommon for a commission, an independent commission — this is not a court, but it is a commission — to reappoint commissioners who are doing a good job and whose institutional memory is important. The example comes to mind, because I happened to serve on this commission before I was appointed to the Senate, of the Parole Board. Indeed, in my own experience there, limited in time though it was, there were members of the commission with whom I served who had been appointed by one government and were reappointed by another government — there had been a change of government — precisely because of the importance of their institutional knowledge and competence that they brought to it.
I think your observation is a good one, and I would support it, but we should recall, colleagues, as well that there is a built-in parliamentary review of this legislation five years or so from the coming into force.
Senator Simons: One hopes. Sometimes that does not happen.
Senator Gold: But the law — and we’re talking about the legislation before us — does provide for that, and it would also allow for these considerations to be considered in a timely way by not only government but by Parliament.
I will not say more about the political reality and the time of the calendar in which we face, but it is simply not true, in a minority Parliament generally, that the government has complete control over the agenda, and it’s certainly not true in the current situation where, for several reasons, there has been absolute paralysis in the other place for at least two months, with uncertainty about the time remaining.
The government considers this an important bill and opposes this amendment on policy grounds and urges that this amendment be defeated.
Senator Arnot: I disagree with Senator Batters. I understand the issues that she’s raising. I would say that allowing for an appointment of a commissioner for a seven-year term is a fairly long term, but I also want to reflect on the type of work. This is going to be very heavy work, it’s going to be very difficult work, and one would hope that all the people that are appointed to the commission would bring with them a neutrality and a professionalism and an integrity to the work. It would be, in my opinion, very important to reflect on the corporate knowledge that one would gain when they’re sitting on such a commission.
If it was evident that some person as a commissioner had lost the ability to be fair and was demonstrating that in a clear way, it would be a fundamental non-professional expectation in the neutrality that’s expected. The neutrality is a hallmark of the credibility of the commission itself, so it goes right to the heart of the work of the commission. I believe commissioners are quite likely to enhance the concept of the administration of justice being held in repute as opposed to disrepute.
Also, I would just like to make a point that the national Parole Board is an independent body, and people can be reappointed there, and I don’t think that the ill that Senator Batters is concerned about is demonstrated in those types of appointments either.
I would oppose the amendment.
Senator Dalphond: I won’t repeat some of the arguments that were made by my three previous colleagues, but I will just add a few points.
First, if we delete that portion, the section will read, “(1) A commissioner is to be appointed to hold office for a term not exceeding seven years . . .” It could be two years. It could be three years. Then the next paragraph would not be there, and then the next paragraph will be, “A commissioner may be removed for cause by the Governor in Council.” So it would not prevent reappointment. It will not say anything about it unless the Interpretation Act prevents reappointment. So then we’re going to be in a kind of limbo. I don’t like limbo.
The second thing is that we have to understand what we’re trying to do here. We’re setting up a new commission. Proposed section 696.74 says, “The Chief Commissioner is a full-time commissioner. The other commissioners may be appointed as full-time or part-time commissioners.” There is discretion there given to the government to see how many commissioners are required, and the first few years it will be based on the case load. If there are more cases than expected, we’ll have a need for more full-time people than part-time people, or it might be the contrary, so why not provide flexibility to reappoint those people that have done two or three years part-time and become full-time or whatever.
The next point I want to make is that these commissioners must have a very special expertise, which is provided at proposed section 696.75, and also they must be representative of the diversity and include people that are knowledgable about those that are overrepresented in the criminal system, including Indigenous people and Black persons. So we have all these requirements that may call at some time to reappoint somebody because you need somebody to pick up the job, and they have many requirements, and the law also provides that it has to be staggered replacement.
The whole thing is designed to provide some flexibility to adjust to a new commission whose case load we don’t know, so I would be reluctant to remove something that provides flexibility.
[Translation]
Senator Aucoin: I was on the Parole Board for a time. If I’m not mistaken, the term was five years, and three years for part-time members. I understand what Senator Batters is saying. I hope that, after five years, the commission could reconsider the idea of fixed terms. That is for two reasons. The first is the knowledge and expertise the commissioners gain during their terms of two to seven years. The second is that I think it rules out certain individuals, mainly lawyers, but perhaps others as well. If the term limit is seven years and commissioners are appointed on a full-time basis at the age of 45, what will they do once the term is over? In my case, I was offered a position as a full-time member, which I did not take because I had to return to private practice since there was no guarantee I would have a position afterwards.
For those reasons, I am sympathetic to the concerns or, rather, amendments put forward by Senator Batters, but because of the political climate, I am still going to vote against the amendment.
Senator Carignan: Forgive me, but I didn’t quite get that. You said, “because of the political climate.” Did I hear that correctly?
Senator Aucoin: Because of the current political climate.
Senator Carignan: You are going to vote against the amendment.
Senator Aucoin: That is correct.
Senator Carignan: That is the reason. Well, that’s interesting.
[English]
Senator Batters: First of all, we’ve heard many times that this commission should be at the highest level of independence, basically akin to judicial independence, and if we don’t pass this amendment, we are not providing this commission with that necessary level of independence. I find it interesting that we had two former judges here who both spoke against this amendment.
And just referring to this as if it’s Parole Board level, we’re above that here. These are people dealing with wrongful convictions, some of most serious matters that we’re dealing with. In fact, we’ve occasionally had people tell this committee in the course of this study that we should perhaps get a retired judge to head this commission.
We have a couple of former judges here who wouldn’t have accepted that lack of independence being provided — of course, as they shouldn’t — when they were judges, so it shouldn’t also be accepted here.
Also, dealing with this length of tenure issue and the possibility of having commissioners appointed for maybe only two or three years or something like that, I believe that’s why it’s important to have this reappointment provision removed right off the bat in passing this bill rather than just looking at it later in the review process or perhaps having the government think about it later and put it in later. At that point, they may have already appointed some people to shorter lengths of tenure that maybe they wanted to appoint for a lengthier period of time. This way, they can make that assessment right off the bat. Seven years is quite a lengthy time to be able to have that length of tenure.
Dealing with the House of Commons’ current paralysis, well, that’s entirely in the control of the government. They release those documents, and the paralysis ends. It seems like the announcement that they just made right before this committee meeting today to appease the NDP is probably an attempt to get that House of Commons paralysis to end, to have the NDP vote with them to invoke closure. We’ll see, but it seems that’s what it’s intended to do.
Dealing with the possibility of simply having an observation, yet another observation, I can’t count the numbers of times we’ve had observations that we’ve provided dealt with at this committee. Seriously, tell me the last time this federal government actually followed an observation that this Legal Committee has made in the last eight or nine years. If they had a big track record of actually following them, I might look upon that differently. But I think that this is too important. It’s not just a matter of, “Oh, it would be nice.” This is a must. This is really a must.
Senator Dalphond: I will be very brief. I tend to agree with Senator Aucoin, but what we’re dealing with here is not paragraph 1, but paragraph 2. Senator Batters is not saying I would not have accepted to not be a judge for a defined term. No, I would not have accepted, but it’s not that section. It’s the other section she should have amended, so I think the argument is shifting now to something else.
This amendment, as proposed, is to delete the sentence, “A commissioner may be reappointed,” and I don’t see why we should delete that.
[Translation]
Senator Carignan: I’m still a bit taken aback by the senator’s rationale that he is going to vote against the amendment because of the political climate in the other place. In theory, an election will be held in October 2025. Under the Constitution, it could even be held in 2026. The Prime Minister seems to find new ways of convincing the NDP to keep supporting the government.
I don’t understand citing concerns about what is happening in the other place as a reason for us, in the Senate, not to do our jobs, because we don’t know what is going to happen. I think we need to do our jobs, put forward amendments, conduct studies and send bills back to the other place. If the House is committed to the bill, it will pass the bill and send it back to us if MPs are not in favour of the amendment.
I’m quite surprised by the argument.
[English]
Senator Gold: I am going to resist completely any responses to the very partisan statements and, frankly, misleading statements about what’s happening in the other place.
I think it’s a responsible thing for senators to take into account the consequences of their actions, whether that is in opposing bills, supporting bills, or supporting or opposing amendments.
This is a historic piece of legislation. It has been decades and decades overdue. My late father was involved in providing justice and support for someone whose name is attached to this bill, and he has been gone for a long time.
I think it’s responsible to oppose this amendment on policy grounds, which I attempted to articulate, and to recognize as well, as experienced parliamentarians, that perfection lies in another dimension. This is a good bill. It’s overdue for its passage, and we should not put it at risk by indulging in a search for perfection. We have opportunities to review this in a parliamentary review. The government takes seriously and will take seriously the observations; they are well founded.
For reasons I have already expressed, the government strongly opposes this amendment and will continue to oppose it, regardless of what happens in the vote.
Senator Batters: First of all, as far as which provision and how this amendment was formed, it was based on the very intelligent evidence that we heard from the two very people that prepared the government’s report on this, Justice LaForme and Professor Roach. Both of them said that this is how to achieve this and that having the reappointment provision removed is the correct way to do it. Professor Knox echoed that. That’s why the amendment is drafted the way it is.
I agree with the fact that this bill is decades overdue, but the Senate has had this bill for two months. The House of Commons had it for 18 months. The House of Commons committee made substantial amendments to this bill. Why can’t we? We heard significant evidence about this very provision and that it needs to be taken out because it really jeopardizes the independence of this commission.
I can’t tell you how many times I’ve been saying recently that I can’t stand to hear the phrase about the “search for perfection”: We shouldn’t search for perfection; we shouldn’t let the perfect be the enemy of the good. We are the Senate of Canada. Again, our job is to make bills more perfect, and this is a pretty important step to making this bill a lot better than it is right now.
The Chair: Thank you.
Seeing and hearing no further interventions, I’ll call the question on this amendment.
Colleagues, it was moved by the Honourable Senator Batters that Bill C-40 be amended in clause 4, on page 9, at line 9, by — may I dispense?
Senator Batters: No.
The Chair: I’ll read it out:
That Bill C-40 be amended in clause 4, on page 9, by deleting line 9.
Just so that we’re clear, that would remove the provision related to reappointments.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “no”s have it. We will do a recorded vote.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: No.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: No.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: No.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Abstain.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Labrosse: Yeas, 2; nays, 9; abstentions, 2.
The Chair: Colleagues, I declare the motion in amendment defeated.
Shall clause 4 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 5 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 6 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 7 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 8 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 9 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 10 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 11 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 12 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 13 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 14 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 15 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 16 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 17 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 18 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 19 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 20 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
We now move to the question of observations. Does the committee wish to consider appending observations to the report?
An Hon. Senator: No.
The Chair: So far, no. There are some proposals for observations. I think they have all been circulated to members of the committee. There’s one set from Senator Simons, one from Senators Prosper and Aucoin, and two from Senator Pate, I think. Senator Pate’s is more elaborate, procedurally, and with your indulgence, I’m going to invite Senator Pate to speak to hers first, if that’s acceptable, colleagues.
Senator Pate: Do you want me to speak to the first one or both?
The Chair: I think it would be helpful if you spoke to the first one, because it contains some advice we need from the clerk. I think your proposal contemplates attachments in a certain way, and the clerk will be able to inform us how that most appropriately could be done, if it is accepted by the committee.
Senator Pate: Thank you very much.
With observation 1, I have two options, actually. The long version we sent out is the version that would include the particular points from the minister’s letter that, I think, are especially germane to our discussions. If there’s a procedural way to do it, I have the potential for a motion to move that the letter from the minister and the Miscarriages of Justice Report be linked to and referenced in the report. That’s one option. In that case, then, the first observation would just be the first paragraph. So I think we need some direction from the clerk, if at all possible, as to whether it’s possible. I had initially used the word “append,” but I understand it may be possible to have a motion. If so, I will move the motion that we —
The Chair: Might the clerk describe what is possible appropriately, and then you can take that into account in the motion?
Mr. Labrosse: In the most recent report, there was a reference and a link that were made to a public report. Since the report entitled Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women was submitted and included as a brief in evidence under this order of reference, a link or reference can easily be made.
The Chair: Is that equally true of the minister’s letter?
Mr. Labrosse: Correct.
The Chair: Might I describe, Senator Pate, the boundaries that would be possible for you here?
Senator Pate: I take your direction, Mr. Chair, whether I proceed first with the motion to link those in reference or I move to the observation. That would mean I would only be doing the first paragraph for the first observation if I do the motion first.
The Chair: My suggestion for a motion is that it be your first paragraph with a link referencing those two reports as evidence before the committee.
Senator Pate: Then, my apologies to the committee, but now the first observation would read the first paragraph and would include a reference to and link — I’m presuming that means an electronic link as well — to the letter from the minister and the report entitled Injustices and Miscarriages of Justice Experienced by 12 Indigenous Women.
The Chair: Comments or other interventions?
Senator Batters: First of all, this is quite a lengthy observation.
To attach the Minister of Justice’s letter, if the minister thought these issues were that important to be dealt with, he should have talked about them when he was here in front of our committee. I think that I’m imagining that the minister’s letter is probably available on our committee’s website, just like any other brief that is received from this committee. I think that’s the appropriate place to put it, not to have — frankly, in some ways, it didn’t even say that much, really, considering what should have been said on this topic.
The other thing is attaching a report dealing with people who could potentially come in front of a new commission once it’s set up, I don’t think it’s appropriate for this committee to attach such a report to its report. It could perhaps, again, be accepted as a brief just like any other brief or something like that which is received by this committee, but I don’t think it should be attached to the report on the bill.
The Chair: I’ll see if there are other interventions and invite your response, Senator Pate. Other comments on this?
Senator Dalphond: I think Senator Pate made it clear she didn’t want the whole observation, only the first paragraph.
The letter from the minister — that would be in blue or whatever, so you will click and get to it. It is the same thing for the last line.
I wonder if the beginning of the observation could not be rephrased. It’s only a suggestion, because I can live with this observation, but maybe I’m suggesting you consider:
The committee wants to stress the fact that its study of Bill C-40 was informed by briefs and witnesses, including the letter from the Justice Minister and the report . . .
So just the first line, because I find, “The committee appends” —
The Chair: We would have to adapt it. I think you’re right, Senator Dalphond.
I wonder if we could hear a bit further discussion and then invite a vote on the sentiment of the motion, and if you’re comfortable at the end, we would seek a motion to give steering the authority to tidy it up so that it is as precise as we can make it along the lines that Senator Dalphond suggested. Are there further interventions on the substance?
Senator Clement: I just want to say that I agree with the observation as proposed and the comments from Senator Dalphond. I understand what Senator Batters is saying about amendments having more strength and observations having more limited impact, but I do always hope that, five or ten years down the road, somebody is going to look at the record, and that the record is clear and has the right links to the documents that we talked about, because these reports were referenced in our conversations with witnesses, so I think it’s appropriate. I support it.
Senator Pate: Just to follow up, thank you very much for that, all of you, in terms of your comments. Just so that it is clearly on the record, the 12 women report was directly referred to by Emma Cunliffe, Kent Roach, Harry Laforme, Tamara Levy, Jessica Zita, Pam Palmater, Debra Parkes, Tanya Talaga and James Lockyer, as well as in the Native Women’s Association of Canada’s brief to the Justice Committee and B.C. First Nations Justice Council brief to the Justice Committee in the other place. It was indirectly referred to by Mr. Paisana from the Canadian Bar Association, the minister himself, Mark Knox, Rheana Worme and Amy Sock, so I think there’s strong evidentiary basis for including it.
Senator Batters: With that in mind, then, with that level of evidence that we’ve heard in front of this committee in the course of that study, then that should be sufficient. We can always look at all of those transcripts and all the videos referencing that, but to attach that report to the study of the bill is basically a signal potentially to that commission that they should view this committee as having endorsed whatever is in that report. I don’t think that’s appropriate because that commission could very well be looking at those cases and determining whether this is potentially a wrongful conviction situation. So it’s almost like our committee would be endorsing that rather than having the evidence that was provided and stating that.
The Chair: Other interventions?
Am I correct, Senator Pate, that if we were to pass this motion in the spirit that we’ve just described with some retooling of the introductory language, it would eliminate your other proposed observation, which seems to overlap with it?
Senator Pate: Yes, that’s correct.
The Chair: I wanted to ensure we understood and didn’t skewer your other one or improve it by whatever we decided.
[Translation]
Senator Aucoin: I have a question, Mr. Chair. Will the report still be appended, or will there just be an electronic link to the report and the letter? I’m not clear on that.
[English]
The Chair: An electronic link.
[Translation]
Senator Aucoin: Thank you.
[English]
The Chair: It won’t be a thick document attached but a link like we did at least once before.
I’ll invite a vote on the question. Are those in favour of the motion?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: I think the “yea”s have it. Roll call.
Mr. Labrosse: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Labrosse: The Honourable Senator Batters?
Senator Batters: No.
Mr. Labrosse: The Honourable Senator Arnot?
Senator Arnot: Yes.
Mr. Labrosse: The Honourable Senator Aucoin?
Senator Aucoin: Yes.
Mr. Labrosse: The Honourable Senator Audette?
Senator Audette: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Dalphond?
Senator Dalphond: Yes.
Mr. Labrosse: The Honourable Senator McNair?
Senator McNair: Yes.
Mr. Labrosse: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Labrosse: The Honourable Senator Prosper?
Senator Prosper: Yes.
Mr. Labrosse: Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Labrosse: Yeas, 9; nays, 1; abstentions, 1.
The Chair: I declare the motion carried.
I think if I’m right then, we would dispense with the Number 4 observation of Senator Pate. It seems to have been incorporated in part of the first paragraph of the first motion.
This leaves us with a proposed observation from Senator Simons.
Senator Simons: There are three, actually, Mr. Chair.
The Chair: Sorry, okay. They are on the same page?
Senator Simons: I have three separate observations. They are one, two, three, on the same page, yes. Would you like me to do them one at a time, or all three at once?
The Chair: I think you should provide your perspective on all three, and then we’ll have the discussion as needed.
Senator Simons: The first observation reads:
The Standing Senate Committee on Legal and Constitutional Affairs recommends that the statutory mandate of the Miscarriages of Justice Review Commission should include an explicit authority to make recommendations on systemic issues. Consequently, steps should be taken during the bringing into force of this bill to ensure that the broader mandate for the Commission proposed in clause 4 prevails over that narrower mandate proposed in clause 6.
The idea of this, because there seems to have been what is arguably an error in drafting when the bill came to us from the other place, and because we don’t have the opportunity to go in and clean that up, is to say that we want it on the record that we think that the language in clause 4 should prevail, which allows the commission explicitly not just to review on individual cases but also to make observations and recommendations on systemic issues that they find.
Number 2:
The committee observes that both the Criminal Cases Review Commission of the United Kingdom and the Scottish Criminal Cases Review Commission are empowered to review sentencing and parole decisions. In addition, the Honourable Minister Arif Varani testified before the committee in favour of such an expansion of the Canadian Commission’s scope of review, provided that it first be given time to develop its operations. The committee therefore recommends a future expansion of the Commission’s scope of review to include sentencing and parole decisions.
I think that is fairly self-explanatory. We heard evidence from a number of witnesses that the issue isn’t just simply the question of guilt or innocence but the question of sentencing, and the minister himself indicated an openness to this, since, again, this was not the time or place to make an amendment, which would have been a significant amendment, perhaps even potentially scope-debatable. As an observation, I think it stands and signals the witnessing that we heard from people who said that sentencing needs to be taken into consideration as well.
And then the third, which Senator Batters has already read into the record:
The Committee observes, based on the testimony of expert witnesses before it, and in particular from the Criminal Cases Review Commission of the United Kingdom and the Scottish Criminal Cases Review Commission, that the independence of the Commission – both in public perception and in fact – would be enhanced by removing the possibility of the reappointment of commissioners. Consideration should be given to future legislative amendments that would foreclose the reappointment of commissioners.
We already heard Senator Batters’ very impassioned arguments outlining the fact that it is problematic to have people who may feel compelled to decide one way or another in the hopes of being reappointed, and we also heard from Senator Gold that he supported that observation, so I hope that if Senator Batters and Senator Gold are of a common mind, that the rest of us will be too.
The Chair: Comments on this? I’m going to propose that we vote on each of these as separate motions as an observation, but it’s possible discuss all three at once, unless you have a different perspective.
Senator Batters: With respect to the first observation here, Senator Simons, you did have the ability to “clean up errors in language” through amending the bill. You chose not to try to amend it, to fix those errors in language, so what you’re saying in here is that steps should be taken during the bringing into force of this bill to ensure something. How would you propose that such steps be taken during the bringing into force of this bill? I don’t see that that’s a reasonable thing to do, other than amending the actual bill. That’s my comment on that observation.
Second, I’ve been questioning witnesses for several weeks, proposing that this commission should have the ability to have potential ability on pardons or record suspension as well, rather than only having the ability to have a new trial or appeal ordered. I’m sympathetic with that. Again, I reiterate my hesitation about observations, particularly because for eight or nine years, I can’t recall a time when this government has ever followed an observation yet. Also Minister Virani’s last name is misspelled in that.
Three, I’m obviously very much in favour of that general scope, but I think to just say “future legislative amendments,” I’m a little bit shocked that we would be leaving that to the future when we realize the significant problem that currently exists.
The Chair: Are there other comments? I’ll invite a response from you, Senator Simons, if you wish to make it, but are there other comments or interventions on these? We’ve got Senator Dalphond signing up for all three. Could we hear from you, Senator Simons?
Senator Simons: It’s my understanding, and, as always, I am learning as I go, that the coming-into-force provisions of this bill authorize the Governor-in-Council to bring into force any provision and any order. So they could stick with the one and not the other, hypothetically. However, I take Senator Batters’ point that observing it does not make it so, and I regret the fact that we have been placed by the politics of another chamber into a position where we can’t do our highest, best work.
The Chair: Are there other interventions?
Hearing none, I’m going to invite a vote on each of these, one at a time. I’m going to invite a vote on the motion to adopt Observation No. 1 as proposed by Senator Simons. All those in favour?
Some Hon. Senators: Agreed.
Senator Batters: No.
The Chair: Roll call vote?
Senator Batters: On division.
The Chair: On division.
We have a tricky situation with respect to Observation No. 2 because I wish to abstain with respect to Observation No. 2. I don’t know if that requires a roll call vote.
All those in favour of Observation No. 2?
Some Hon. Senators: Yes.
The Chair: With some minor adjustments that steering might make, including the proper spelling of names.
Senator Batters: On division.
The Chair: And now Observation No 3. Those in favour of Observation No. 3?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division. All three have carried, all on division, Senator Batters.
Senator Batters: Yes.
The Chair: So we are agreed with respect to the observations.
Next is a standard motion along the following lines: Is it agreed that the —
Mr. Labrosse: There’s more, senator.
The Chair: I got enthusiastic there. I apologize.
Senator Prosper and Senator Aucoin.
Senator Prosper: Thank you, chair. The reference of this is OBS-02. It’s mine, co-developed with Senator Aucoin.
This is one observation. It has three paragraphs. Shall I read it into the record?
The Chair: I think that would be wise for anyone who is listening.
Senator Prosper: Okay.
During consideration of Bill C-40, your committee heard from several witnesses about the overrepresentation of black and Indigenous Canadians in the criminal justice system. While the bill provides for some diversity in s.696.73 by requiring the Minister to “seek to reflect the diversity of Canadian society”, it does not guarantee the inclusion of an Indigenous or black commissioner. As such, your committee strongly urges the current and future governments to ensure that there is always representation on the Commission from overrepresented groups such as black, Indigenous and persons of colour.
Your committee witnessed first-hand the lack of proficiency that some wrongfully accused have in either official language; this should not be a barrier to seeking justice. Given that section 6 of the Indigenous Languages Act recognizes that “the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages,” it is important that the Commission include in their policies and practices accommodation for Indigenous languages. The committee notes that this would require adequate resourcing of the Commission in order to ensure that documents related to the case, correspondence and any other communications with the Commission be available in the Indigenous language of the accused.
The committee also requests that the government respect the spirit and letter of the Official Languages Act as well as the principle of equal access to justice in both of Canada’s official languages by appointing some commissioners who can speak and understand both official languages fluently.
That’s the observation, chair.
The Chair: I’ll take that as you’re moving that this be included.
Senator Prosper: Yes.
Senator Batters: A very smart assistant, who is much more fluent in French than I am, noticed two errors in the French version of this observation from Senator Prosper and Senator Aucoin.
One is the start of the second paragraph, where in the English version it says “your committee” but in the French version, it says “votre commission.” It’s not the commission; it’s the committee. At the first instance there, it should say “votre comité.”
Also, later in that paragraph, I believe there’s a second part where later in the English version it says “The committee notes that this would require . . .” and in the French version, it again says “la Commission”, but it should say “le comité.”
The Chair: Thank you. You’re comfortable with that set of corrections, colleagues?
Any other interventions with respect to this?
Senator Clement: I just want to say that I fully support this. I have been uneasy at times as a senator around the duality, the binary, the two only systems, official languages, and then Indigenous languages being somewhere else, in a different space. I appreciate that my two colleagues got together to join forces and speak to both of those types of realities, the realities of two official languages, but the fact is that we live in a country where there are many Indigenous languages.
The Chair: Hearing no further interventions, we have the motion. Is it your will, colleagues, to adopt the observation with the slight amendments that we’ll make?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
Senator Clement, you have an observation entitled OBS-05.
Senator Clement: I do, and I will read it, as Senator Prosper did. I will say at the outset that there may be some duplication with Senator Aucoin’s and Senator Prosper’s observation, and I’ll leave it in the hands of the chair and steering committee if there’s any will to have conversation about blending those.
During the Legal and Constitutional Affairs Committee’s study of Bill C-40, significant focus and discussion centered on clause 696.73, titled “Diversity.” This section of the Bill stipulates that the Minister must seek to reflect the diversity of Canadian society. The verb “to seek” is generally defined as an “attempt to find” or an “attempt or desire to obtain or achieve.” This language is not strong enough.
We heard Senator Dalphond speak about the difference between “must” and something that isn’t that.
Witnesses emphasized the importance of representation and the need for the composition of Commissioners—and the staff supporting the Commission’s work—to reflect Canadian society.
In this next paragraph, I used the word “colonial” in response to some of the testimony and exchange that Senator Senior prompted yesterday with the panel.
In creating this new Commission and its processes, it is crucial to avoid amplifying or recreating a colonial system to prevent replicating past mistakes that have disproportionately affected Black, racialized, and Indigenous peoples. The Black Justice Strategy provides a lens through which the justice system can be reviewed to address these systemic issues and offer redress.
For instance, recommendation 8 ‘Education and training’ states that,
Despite ongoing efforts, there remains substantial need for comprehensive education and training on anti-Black racism and cultural competency for criminal justice actors and representatives of adjacent organizations and agencies…
This recommendation, among others, should instruct the process of ensuring diversity and reinforcing anti-Black racism at every level of staffing, each step of implementation, and for the ongoing processes of this Commission.
The Chair: Comments? Interventions?
Senator Batters: I would just make the same comment on this. Certainly this is something that we heard a considerable amount of testimony about. I continued to be surprised throughout the study of this bill that we didn’t hear people wanting to have an actual amendment to make that have some real force to it because that’s something that’s considerable.
I am personally not accepting of this, “Oh, we have to hurry it along because the House of Commons has a current situation.” The House of Commons always has a current situation, especially in a minority government. They have plenty of time to deal with amendments that are important and well founded.
For those types of reasons, I have very little faith in the observation process from this government, so that’s why I will be having an “on division” on this issue.
[Translation]
Senator Audette: Thank you for the amendment. I think our collective intelligence is such that we understand the political environment we are in. We are capable of being disruptive and making what is presented to us better, regardless of who forms the next government. I support the amendment. Thank you.
Senator Aucoin: Senator Audette, I believe you said “amendment,” but did you mean to say “observation?”
Senator Audette: Yes, I meant “observation.”
Senator Aucoin: I just wanted to make sure that was clear.
Senator Audette: Thank you for correcting me.
[English]
The Chair: Thank you, colleagues. I think we’re now in a position to invite a vote on the motion to adopt the observation proposed by Senator Clement. Those in favour?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Batters: On division.
The Chair: Adopted, on division.
I can now move to what I think is the pro forma conclusion.
Is it agreed, colleagues, that the Subcommittee on Agenda and Procedure — that is, the steering group — be empowered to approve the final version of the observations to be appended to the report in both official languages, taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes, as required?
Hon. Senators: Agreed.
The Chair: In that context and with the invitation of Senator Clement, we will be attentive to whether there is an overlap between the observation you proposed and the one of Senators Prosper and Aucoin, although they looked complementary in my quick read of them.
Is it agreed that I report this bill, with observations, to the Senate in both official languages?
Hon. Senators: Agreed.
The Chair: Colleagues, that concludes our consideration.
Senator Senior: As an active non-member of this committee, I just wanted to make a concluding comment with regard to what Senator Batters referred to as the minister’s intention of taking up to a year to implement the work that this commission would begin, or even the commission itself. That concerns me, because I think just as it’s important to get this approved now and get it to this stage today, it’s equally important to establish the commission and to do that immediately. I’m making the comment not knowing how that can be addressed, but I’m saying it so it’s on the record before we adjourn. I would like to just make sure that point is made or communicated, perhaps through Senator Gold to the government, that this should be done with some immediateness.
Senator Batters: Just on that point — thank you for bringing that up, senator — that was actually the minister’s hopeful situation of one year. I would expect, unfortunately, that it will probably be longer than that. I think it’s good to reinforce that we want to see this happen as soon as possible, but just to reinforce that he did express that was his hopeful scenario and not the likely scenario, I would say.
The Chair: Those points are well made..
Senator Dalphond: I agree with Senator Batters. The minister said that the sooner the bill is adopted, the sooner they will appoint people.
The Chair: Thank you, all. Colleagues, thank you very much for the professional consideration of the bill and proposed amendments and observations. I appreciate your good work on this. The steering folks will take a careful look at the observations and fine-tune them a little bit in the spirit that was communicated to us through the discussion. This concludes our consideration of the bill. Thank you, all.
(The committee adjourned.)