THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Monday, May 30, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:33 a.m. [ET] to study the subject matter of those elements contained in Divisions 1, 21 and 22 of Part 5 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Honourable senators, I am Mobina Jaffer, senator from British Columbia, and I have the pleasure of chairing this committee. Today we are conducting a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[Translation]
If you run into any technical difficulties, especially with the interpretation, please let me or the clerk know, and we will do our best to get the problem resolved.
I would like to introduce the members of the committee who are participating in the meeting today: Senator Boisvenu, deputy chair; Senator Batters; Senator Boniface; Senator Campbell; Senator Clement; Senator Cotter; Senator Dalphond; Senator Dupuis; Senator Harder; Senator Pate; Senator White.
[English]
We also have with us today Senator Quinn. Thank you for joining us, Senator Quinn.
Senators, please signal to the clerk by using the raised hand function if you have a question, and you will have four minutes each.
Senators, today we continue our study of Divisions 1, 21 and 22 of Part 5 of Bill C-19, Budget Implementation Act, 2022, No. 1. Senators, as a reminder, Division 1 of section 5 deals with the taxation of CP Rail. Division 21 deals with the addition of Holocaust denial in the Criminal Code and Division 22 deals with judges’ compensation.
Honourable senators, we are happy to welcome today from Canadian Pacific, James Clements, Senior Vice-President, Strategic Planning and Technology Transformation. From the Canadian Bar Association, Jody Berkes, Immediate Past Chair, Criminal Justice Section, at the Canadian Bar Association. Later, we may be joined by Commissioner Giroux, Commissioner, Office of the Commissioner for Federal Judicial Affairs.
Senators, Mr. Clements has to leave by 11:30, so may I ask that you make sure that you have asked your questions before 11:30. Mr. Clements, we are happy to welcome you again. Thank you very much for making yourself available again.
James Clements, Senior Vice-President, Strategic Planning and Technology Transformation, Canadian Pacific: Thank you, Madam Chair and members of the committee.
Canadian Pacific is grateful for the opportunity to address you and pleased that the Senate is hearing evidence on this important issue.
As you may recall, CP appeared before this committee in March when it was considering the proposed constitutional amendment to repeal section 24 of the Saskatchewan Act retroactive to August 1966.
CP, of course, respects the right of Parliament to change laws, but we submit that changes to laws should be based on sound principles and verifiable facts. Equally, proposed changes based upon false premises of either principle or fact should be rejected.
Our goal today is to highlight two considerations on the government’s proposed statutory repeal of CP’s historic tax exemption. First, CP would like to point out that the proposed federal repeal of clause 16 retroactive to 1966 is justified based on a falsehood. CP did not waive its historic tax exemption in 1966 — and the Federal Court itself agrees — a change in law that is not based on any factual foundation is arbitrary.
Second, in considering whether to change any part of a law, Parliament should consider whether a change should result in additional changes to preserve the integrity of the overall legislative scheme. CP’s historic tax exemption was part of a bargain that was struck to keep British Columbia in Canada. The tax exemption was granted in exchange for CP agreeing to operate the historic main line in perpetuity. If one half of that bargain is going to be repealed on the basis that it is outdated, then the other should be examined to determine whether it is outdated as well.
Today and in the future, CP will run its railroad within the current legislative and regulatory framework. That is the framework all of CP’s competitors operate in. CP should not be subjected to an outdated operational obligation which has no current justification. CP respectfully submits that the tax exemption should not be repealed based on a false premise. If it is to be repealed regardless, then the reciprocal obligation should be repealed as well to maintain fundamental fairness, and the record should be corrected to reflect that CP did not waive the exemption in 1966, as was confirmed by the Federal Court.
Let me turn to the false premise upon which the retroactive aspect of the proposed legislative change is based. Section 174(1) of Bill C-19 states that clause 16 “is deemed to be of no force or effect as of August 29, 1966.” That is the date when the government falsely alleges CP waived its right to the tax exemption. The very issue of what happened in 1966 was considered and decided in CP’s favour by the Federal Court. The citation for the decision is 2021 FC 1014.
At paragraph 696 of that decision, Justice Diner concluded:
Having considered the evidence documenting the 1960s negotiations, Canada has not persuaded me that Clause 16 was repealed, such that CPRC surrendered the Exemption in its entirety, including vis-à-vis federal taxation, in the lead-up to Canada’s enactment of the National Transportation Act. Rather, the evidence clearly shows the Plaintiff rescinded its exemption vis-à-vis municipal (or “local”) taxation; it does not show that the Parties agreed to repeal the Exemption with respect to federal taxation.
Then, at paragraph 702, Justice Diner stated:
In sum, I agree with CPRC that it agreed to forego the municipal tax exemption in exchange for legislative reform to the grain transportation rates, along with treatment of the payments as business expense deductions for income tax purposes. In other words, the quid pro quo for Canada took the form of the National Transportation Act, that followed on the heels of the agreement between CPRC and Canada to end Clause 16’s Exemption for municipal — but not federal — taxes.
The government did not appeal these clear court findings.
Parliament will undermine the fundamental premise of responsible legislation if it chooses to ignore these findings by now purporting to repeal clause 16, retroactive for some 56 years, based on the blatantly false premise that CP waived its rights to the tax exemption in 1966. The Federal Court found this simply did not happen.
To legislate on a known false basis undermines the rule of law, undermines the respect of the court and is a flagrant violation of the bedrock expectation of Canadians that its Parliament will only act on facts not falsehoods, which is especially important in a world of misinformation.
CP respectfully submits that the Senate’s function is to provide the sober second thought that will avoid such legislative missteps. Removing the historic exemption retroactively is not justified on any basis.
If the legislative intent on removing the historic tax exemption is to end the perpetual benefit CP received in providing Canada with a vital part of its infrastructure because it has become anachronistic, then Parliament should remove the perpetual obligation imposed on CP because it has similarly become anachronistic. The obligation to operate the railway in perpetuity was a response to the railroad scandals of the 1800s in which public funds were secured to build a railway that was abandoned shortly after all benefits were received.
The obligation states: “. . . the company shall thereafter and forever efficiently maintain, work and run the Canadian Pacific Railway.”
CP is not in any way looking to stop operating its railroad. We have proudly operated for more than 140 years and we will continue proudly operating the railroad as the backbone of Canada’s economy. That is why CP exists and nothing is going to change that. But the fact remains that this perpetual obligation amounts to an outdated legal constraint on how CP manages its network and assets.
Moreover, CP — like other federally regulated railroads — is regulated extensively by, among other statutes, the Canada Transportation Act, which includes provisions that govern the discontinuance of operations on railway infrastructure. All of CP’s competitors operate under the modern statutory and regulatory framework. CP should be placed in a similar situation. It should not have an additional perpetual constraint of being required to operate the railroad that was built in the 1880s, without the ability to modify it to address changing needs and operational efficiency.
Canada’s and CP’s interests are aligned in having the most efficient rail network possible. The goal is not promoted by tying that network to a route structure from the 1800s. Today, governments and shippers have an array of rights and remedies under the CTA, which ensure that the most appropriate level of service is provided by an efficient network of operators.
If Parliament views the historic tax exemption as outdated and warrants repeal, then similarly it should view the obligation to operate the historic rail route in perpetuity as similarly anachronistic and repeal it going forward. Otherwise, CP faces legal obligations that go beyond those required by the CTA for any other federally regulated railway. Simply put, if Parliament is of the view that a benefit is to be repealed because it is outdated, so should the correlating burden which we submit has been overtaken by a modern statutory and legal framework.
Madam Chair, I would be pleased to address any questions.
The Chair: Thank you, Mr. Clements.
Commissioner Giroux, I am so sorry that we cannot hear from you, because of you not having the right headset and because our interpreters would not be able to interpret. We really appreciate you making the effort to be here. I know you tried really hard. Thank you so much. You have already sent us something in writing, so thank you very much. I’m really sorry. Thank you, commissioner.
We now go to Jody Berkes, Immediate Past Chair, Criminal Justice Section. Mr. Berkes.
Jody Berkes, Immediate Past Chair, Criminal Justice Section, Canadian Bar Association: Good morning, Madam Chair and honourable senators. My name is Jody Berkes and I am the past chair of the Canadian Bar Association, Criminal Justice Section. I join you today from the traditional territory of the Huron-Wendat Nation, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the New Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon Treaty. Thank you for inviting the CBA to participate in the committee’s study of the proposed amendments to section 319 of the Criminal Code.
The criminal justice section of the Canadian Bar Association is unique in that it is the only organization comprised of both Crown and defence counsel. As such, we lend a different perspective on how proposed criminal legislation functions in the real world. In my capacity as representative of the Canadian Bar Association, I offer the following three points for the committee’s consideration.
I would like to discuss the gate-keeping function that an Attorney General plays in both section 319 of the Criminal Code and with this proposed amendment. I would like to discuss the use of the term “downplaying” in the proposed amendment. Third, I would like to discuss whether the proposed provision is already covered by other legislation.
First, both the current section 319 and the proposed amendments require an Attorney General’s consent before instituting a prosecution under the Criminal Code. This is a difference between the way charges are normally proceeded under the Criminal Code. In the normal course, either the police or the Crown’s office lay charges under the Criminal Code. The CBA section accepts that the consent of the Attorney General is appropriate in the area, but consent or denial of consent to prosecute must be exercised according to principle.
We recommend that either Attorneys General or, in jurisdictions where they exist, directors of public prosecution adopt criteria for denial of consent to prosecute so prosecutions cannot be denied arbitrarily without explanation. Prosecutorial discretion is not subject to a court review. Therefore, the prosecution must undertake to ensure that their discretion is exercised appropriately and is guided by proper principles.
The Attorneys General grant or denial of consent for prosecuting hate speech crimes should be subject to clear public criteria. Reasons should be given for granting or denying consent, explaining why the criteria were or were not met. A brief statement of reasons should be made publicly available when denying consent and should be drafted ensuring that any privileged material contained in the original assessment of the matter is protected.
In terms of the substance of the proposed offences drafted, the term “downplaying” in the current proposed legislation is subject to a broad interpretation which will result in difficulties in both prosecuting and defending the proposed offence. Criminal offences with clearly prohibited conduct are beneficial to all actors in the criminal justice system. Both Crown and defence can present their cases clearly, allowing judges to provide clear, articulate reasons for conviction or acquittal. This is of benefit not just to the participants in the criminal justice system, but for the public’s understanding of the administration of justice.
The term “downplaying” falls along a spectrum which can range from a minor to a complete denial of the Holocaust. Determining where on the spectrum actions will be criminalized will differ between jurists resulting in confusion and ongoing litigation to define that term. Consideration should be given to leaving this term out or choosing a more narrowly definable term.
Finally, the proposed legislation is almost identical in wording to the offence in section 319(2). Section 319(2) prohibits any statement that promotes hatred of any identifiable group. On the other hand, the proposed amendment deals with one specific statement, Holocaust denial, and one identifiable group, the Jewish people. As such, a prosecution for Holocaust denial could theoretically proceed under either section, as both sections prohibit the same activity. The only potential difference is that the proposed legislation deems Holocaust denial to constitute antisemitism without the need for the Crown to prove the same. Put another way, the proposed legislation seems to be an evidentiary shortcut for the Crown to prove antisemitism where the statements involve Holocaust denial.
Thank you. I look forward to answering the committee’s questions.
The Chair: Thank you, Mr. Berkes. We will now go on to questions beginning with Senator Cotter.
Senator Cotter: Thank you very much to the witnesses for their presentations. I have three questions altogether, but in light of Mr. Clements’ time limitations, maybe in this round I could pose questions to him.
Mr. Clements, thank you for your presentation. Thanks again for joining us and particularly the point of view that you advanced about imbalance in this legislative initiative. I’ll start with a factual question. When you were here before, I did some reading about CP, and my recollection is that the main line is a central revenue generator for CP. Would I be correct in that, the main line that runs across the western prairies? That’s my first of two questions.
Mr. Clements: Yes, that would be correct. The operation through the prairies is fundamental to our overall operation.
Senator Cotter: That’s what I thought. The second question is I think again a factual one. You were mentioning the issues and concerns about retroactivity to 1966. My recollection is that the evidence is that — not disputing your point — in 1966 CP was operating with the municipal tax exemption operable, that is CP was not paying municipal taxes. However, in 1966, I would say, notwithstanding the exemption, it was paying provincial and federal taxes. Would I be correct in that?
Mr. Clements: Again, the tax payments that we make, the exemption is very specific to the historic freight main. We have always had some taxes that were in scope around our operations. What I can’t, at this point in time, clearly state is that the provincial taxes paid in 1966 were related to the line that had the exemption. We were, certainly, paying taxes and have always paid taxes on the operation outside of the historic main line.
Senator Cotter: Thank you.
Senator Quinn: Thank you for the presentations, and I want to thank my colleagues for having me present today and allowing me to ask questions.
The reason I am here today is because when I was reading the background to this particular issue it was of great interest because my immediate previous job was at a federal entity, a port authority, and there had been long-term contracts entered into at the port authority before I arrived there. When I say long-term, they are not in perpetuity like what is being considered today but 40 years. I can tell you I would like to have had the ability to retroactively eliminate sections of those contracts, but they were contracts and they will be dealt with as the anniversary dates come up.
I didn’t have a BIA at my disposal to put something in dealing with one element of a contract, which found interesting. I think, Mr. Clements, you have described very well the position of CP, and I don’t dispute that position at all.
One of the elements I am concerned with, as a former leader of a federal entity that has made many arrangements with the federal government, is that in 10 years’ time, if the federal government decided to change something I had made with them, would they come and retroactively eliminate something? What does it do to the reputation of the Government of Canada in terms of dealing with either federal entities or private sector entities in entering a contract and then having the ability to alter that through the use of a parliamentary process?
Mr. Clements, would you share my concern about what else can the government do than using what I feel is an extraordinary tool — a BIA — which has many elements above and beyond budgets? I am wondering what your thoughts may be on that.
Mr. Clements: Thank you, senator, and certainly our overall position, especially on the retroactivity, is that the exemption should not be repealed, both because of the false premise that we did not agree to waive in 1966. However, as you say, using these extraordinary powers to go backwards on that false premise really undermines what is being proposed in terms of legislative integrity. Yes, it then goes on to raise, I think, general concern on doing business with the government.
I will reiterate my point that this was part of a bargain where we had an obligation that came with the benefit. It wasn’t just a one-way benefit to Canadian Pacific Railway. Again, if the changes will be made going forward, we should be relieved of the obligation that was tied to that benefit.
So you do have to look at the contractual terms that are in question, and look at them in their entirety, if there is going to be a change so they are as balanced and fair as possible when that change takes place.
Senator Quinn: Thank you.
Senator Batters: We are sort of going in a little bit of reverse order by necessity in this particular study of the Budget Implementation Act because we haven’t heard from the minister yet. Generally, he sets out everything for us and then we have witnesses that augment that, but we haven’t had that yet.
Mr. Clements, could you please give an explanation for people who may be watching? When you were last before us, we were dealing with a particular resolution that was passed in the legislature of Saskatchewan, the House of Commons, and then the Senate eventually passed a resolution as well which would amend the part of the Constitution dealing with the Saskatchewan Act and the historic CPR tax exemption.
Now the government is doing something different. They are statutorily declaring your exemption to be of no force and effect as of the 1966 date. Am I correct in understanding that — since the Saskatchewan part has already been dealt with — this would, basically, be taking care of the other provinces? We’ve heard some people from Alberta and Manitoba saying, “Hey, what about us?” Is that what this is primarily intended to do?
It sounds like you are not happy with this particular method that the government has chosen to deal with your historical tax exemption. Which method would you prefer — maybe neither; I’m not sure — the constitutional resolution or this method?
Mr. Clements: Thank you, Senator Batters. I will start with the comment about what they are doing. I will say that I am not a lawyer, so I won’t be legally technical on this. But when I appeared before you previously, as you correctly described, what was being dealt with was an amendment to the Constitution that would change a specific portion of the Saskatchewan Act. Today we’re looking at a legislative amendment that works at the federal level.
When I look at that, I would say Saskatchewan is not fully dealt with. There is an ongoing litigation in Saskatchewan. I think the constitutional changes that have been made and some of the questions around retroactivity will be dealt with there. There is also some legislation in Saskatchewan that I think will be swept into the court case in Saskatchewan as well. This is very much, I think, at the federal level and is very specific to federal taxes and does not go down to the provincial level of taxation.
In terms of the approach, whether its retroactivity, and I think there is a different scope at the constitutional level or retroactivity in the legislative level, we are concerned about either. We recognize, though, and respect that the government can make retroactive legislative changes if that’s what they do, like this one. What we’re concerned about here when you talk about the method is that it is being premised on the 1966 date, and we think that is a false premise, especially when it comes to federal taxes.
In 1966, we did make an agreement that we would commence paying municipal or local taxes in exchange for some changes to the national Transportation Act. This change assumes that was also the date we agreed to waive our federal tax exemption, and as the federal port has found itself, we did not do that. We’ve never said we did that. We’ve said that we were making the changes at the municipal level, and our most fundamental concern here is that the government is legislating retroactively on a false premise and that on that basis, they should not be passing legislation built on a false premise.
Senator Batters: I understand your argument on that, but if you could just clarify, because I want to make sure it’s very clear to anybody who might be watching this, because we haven’t had, kind of, the initial explanation on this. This is potentially to clear up any residual impacts that there might be with respect to the Saskatchewan constitutional exemption, but does it also apply to any other provinces that may be in the same boat with CPR, like Alberta and Manitoba? Is that what is happening here?
Mr. Clements: No. In fact, I would say it does not go down to the Saskatchewan level, the Manitoba level or the Alberta level. It cleans up anything at the federal tax level is what is happening here in the BIA.
Senator Batters: You contend that even after this has passed, the province of Saskatchewan still potentially has issues left with CPR that are the subject of that court case?
Mr. Clements: Yes. That court case, I will contend, will determine the retroactivity component.
We agree that the constitutional and legislative changes will apply prospectively, but the retroactive nature at the Saskatchewan level will have to be dealt with through the Saskatchewan court case, and we don’t think those decisions are over yet.
Senator Batters: What about for Alberta and Manitoba, the taxes, because some people from those provinces have contended that they should be able to receive this sort of an exemption, too? Saskatchewan went through all the necessary hoops to make it happen for them, but they haven’t yet. Does this apply to that, is what I’m trying to get at?
Mr. Clements: No, it does not. Sorry, maybe I haven’t been clear —
Senator Batters: This is only dealing with —
Mr. Clements: Only federally.
Senator Batters: I know only federally, but this is only dealing with the issue of what Saskatchewan has brought to the table. This is not dealing with any other — I know you say provincial taxes — so the provinces of Alberta and Manitoba that might have similar concerns as Saskatchewan, this provision that would be implemented here does not have any impact on them?
Mr. Clements: No, it does not.
Senator Batters: Thank you.
I have more questions for the other witness but perhaps in a future round.
Senator Harder: Thank you to our witnesses. As other senators, I will restrict my questions in this round to Mr. Clements.
It’s nice to see you again. I’m sure you’re enjoying this as much as you did last time. I want to follow up in the questioning, tone and concerns raised by Senator Quinn.
When we last dealt with this in the context of the constitutional amendment, while I had sympathy for your arguments, quite frankly, it was my view and, ultimately, the Senate’s view that the question we were asked with respect to constitutional amendments did, in fact, conform to the request being made of the legislature of Saskatchewan and the House of Commons. So I voted to support the amendment package while having the concerns that you expressed in my mind.
You’re now giving me another opportunity. Unfortunately, with all of the attendant difficulties of a budget bill, to have to determine whether or not this measure is appropriate, and I want to share with you my concern that budget bills, if I could put it that way, are a train that moves on a track that is very difficult for the Senate to deal with in terms of amendments.
My question to you is: Should this measure be included, obviously, in the budget bill before us, and should it pass, what are the steps that CP is willing or able to contemplate dealing with the concerns that you’ve expressed? Or are you just going to roll over and accept this?
Mr. Clements: Thank you, senator. That’s a bit of a tricky question, and maybe I’ll first comment that I do certainly share your concerns about using the Budget Implementation Act in such a broad way while it is a tax issue.
In terms of are we going to roll over? I would say no. As I mentioned specifically to Senator Batters’ questions, there is the ongoing Saskatchewan court case, and we will continue to put forward our positions and our concerns there and see where that court proceeding takes us. We will be continuing to express some concerns around the retroactivity and some of the elements of what’s been done there.
In terms of what I would call the grand bargain and the fairness, we will certainly continue, if this gets passed in the form it is in, to raise concern that the clause 7 piece should be reviewed as well and that at some time in the future, there should be a change to put us on an even footing with the other federally regulated railway. We would continue to push for the changes that we’re requesting here.
Senator Harder: Mr. Clements, were you or CP consulted before the budget implementation bill was tabled with respect to this measure?
Mr. Clements: No, we were not.
Senator Harder: Thank you.
Senator Pate: Thank you to the witnesses as well for appearing.
Mr. Clements, when you were with us more than two months ago, I asked some questions about the relationship with First Nations folks and First Nations treaties, and I’m curious whether you have any answers to those questions now.
Just to refresh your memory, it was how much of the taxes that were being collected were related to land that was covered by treaty and how much was unceded territory, as well whether you or CP had a plan, given the fact that there were no constitutional protections at that time to share some of those proceeds with First Nations on a go-forward basis?
Mr. Clements: No, I do not have the specific percentages of the historic main line that are treaty versus unceded land. Generally, the land in British Columbia that we operate on is unceded. The rest of the Western provinces and territories tend to be treaty land; in fact, all of it in Alberta, Manitoba and Saskatchewan.
In terms of working with the local First Nations, for many years we have been working with the First Nations. We have a number of agreements with the First Nations that share various revenue related to the historic main line, and we continue to work in that fashion on the unceded land where we operate.
Senator Pate: Do you have more details regarding that? When you were here almost nine weeks ago, you indicated that you hadn’t analyzed this material yet. Is it possible to get that analysis?
Mr. Clements: Again, we haven’t done a deep-dive analysis on that specific component.
Senator Pate: Would it be possible to get some information from you regarding that?
Mr. Clements: We can take that away and provide you with something, senator.
Senator Pate: Thank you very much.
Senator Clement: Mr. Clements, thank you for coming back and presenting to us. I do want to echo the request from Senator Pate around more details. I have, of course, agreed to proceed with this matter so far, but I am on the record as being very uncomfortable with the lack of information and the lack of discussion around the agreements with the First Nations and the fact that we’re talking about land and that we need to be on the record as having details and asking the questions.
The question I have, in addition to those comments, is that I heard you say about the reciprocal obligation should be waived. If the government goes ahead with this, then the reciprocal on CP should be waived. Can you, from a practical perspective, explain what that means? I’m struggling to figure out what that would look like from a practical perspective if you went in that direction.
Mr. Clements: Thank you, senator. Practically, the way I would describe it is that the Canada Transportation Act today has a number of provisions that provide both for service-level requirements as well as mandatory steps if we were to ever discontinue the operation of a railway or transfer the operation to another party to continue those operations.
Our interpretation is that this burden, if you want to call it that, the other side of the tax exemption was that we had an obligation to continue to operate, so we could not ever seek the discontinuance, as is allowed under the Canada Transportation Act, of any portion of the line. We would always have to have some structure in place to ensure the ongoing operation of the historic main line. We couldn’t sell a portion, let’s say, to a short-line operator or another federally regulated rail carrier.
When I think about what this practically means is that you would remove some of the more burdensome obligations that we have and subject us to — like the Canadian National Railway and the other federally regulated rail carriers — the modern Canada Transportation Act whose provisions allow for the transfer and discontinuance that were designed to allow reconfiguration of the network to ensure that the Canadian transportation system is as efficient and effective as possible for all the shippers and users of the system.
At this point in time, I want to reiterate we’ve been operating the historic main line for 140 years. We have no plans to commence a discontinuance of any portion of that. As one of the senators asked me, the historic main line is an important component of our transcontinental rail network.
Senator Clement: Thank you for ending on that note, Mr. Clements.
The Chair: Senators, Mr. Clements has been very generous with his time. This is the second time he has come in front of us in a few months. Are there any other questions senators have of Mr. Clements?
Mr. Clements, thank you very much. I know you have another place you have to get to, so thank you very much for accommodating us twice. Thank you for being here.
We will now go to questions for Mr. Berkes. Mr. Berkes, thank you very much for your patience. I have done this a little unorthodoxically by leaving all the questions for you to the last. I apologize. I did not mean to be rude to you.
Senator Cotter: Thank you, Mr. Berkes, and thank you for your presentation. I read the brief and I think I’m sympathetic to many of the points that you raised.
One of the questions I have is that some of the concerns that you expressed about these amendments, and if I may say, a somewhat odd place for us to find these amendments, as we discussed a little bit earlier with Mr. Clements and the CP-related amendment, but am I right that some of them would apply to the existing provision as well as the new proposed amendment? Here I’m thinking about some of the concerns about the language that you referenced already.
My second question is: I think that your observation about the exercise of the authority of the Attorney General that is not reviewable with respect to opting not to pursue a prosecution is wise, but would I be right that the most suitable location for those observations, as insightful as they are, would be in policy manuals for prosecution services or for the Attorney General to make them available in those prosecution handbooks that we sometimes get to look at? Thank you.
Mr. Berkes: Thank you very much, Madam Chair. The senator raises some interesting issues. In terms of my comments about the proposed amending legislation, I’m only dealing with that. The current legislation has been reviewed by the courts, and there is case law on that.
I’d like to focus on the Attorney General’s consent. The CBA position is that in certain circumstances when decisions may be political, the Attorney General and the decision to prosecute may have far-reaching ramifications for the public and the public’s perception of the administration of justice. It is appropriate for the Attorney General to review the prosecution and determine whether or not it should go forward.
The CBA does support transparency in the administration of justice so that the public understands what justice looks like and how justice is done. It shouldn’t be like a sausage made in the back that no one sees. It should be out front. When judges render judgments, they render judgments in a public forum so that the public can understand the reasoning behind the decision.
Since the Attorney General’s discretion whether or not to go with the prosecution is not reviewable by the courts, they should, when they decide not to go forward with the prosecution, release a brief public statement. Similar to what Senator Cotter has suggested, their decision should be guided by policy. That policy should be published. The public should be able to review that policy and see how the decision meshes with the stated policy. That’s my brief response.
Senator Cotter: Thanks very much.
Senator Batters: Is it Mr. Berkes? Am I pronouncing it correctly?
Mr. Berkes: That’s correct, yes. It’s actually — Hungarian but it has been anglicized over the years.
Senator Batters: I get that. I’m of Ukrainian background, so I know how that happens. It was probably shortened, too, at some point.
A couple of questions. First of all, does the word “downplay” appear in any other offence in the Criminal Code?
Mr. Berkes: I didn’t realize this would be Trivial Pursuit. I do not believe that “downplaying” is a term that’s used elsewhere in the code, though I must concede that I do not know every single provision of the Criminal Code.
Senator Batters: Okay. I personally have never run into it. It seems like a very unusual word to use for a criminal offence, as you were describing earlier, and could be problematic.
By the way, if you find out — if you have an opportunity to check later, I would be curious to know if this is the first time that it is used in the Criminal Code or not, if you wouldn’t mind.
Mr. Berkes: I’m going to be checking now. This is now of interest to me.
Senator Batters: Sounds good. My other question is: What do you think about the fact that the federal government has chosen to deal with this important topic of anti-Semitism and the Criminal Code being used here to combat it via a Budget Implementation Act that is 440 pages long and allows parliamentarians through this process really only a more constrained ability to be able to debate and deliberate on these types of Criminal Code amendments?
Mr. Berkes: Thank you for the question, Madam Chair. The senator raises an important question here. The Canadian Bar Association has long held that criminal legislation deserves its own statute and to have the focus specifically on criminal legislation. Good criminal legislation needs to be vetted appropriately, needs to be debated in order to come to decisions that benefit the criminal justice system as a whole and society as a whole.
We do not like omnibus bills. We do not think it is proper to create changes to criminal legislation through either omnibus bills or as amendments to the budget legislation as we see here.
Senator Batters: Thank you. I appreciate that.
The Chair: Senators, Senator Dupuis is having challenges today, so I will read her question:
Mr. Berkes, you mentioned that the defence of truth would not necessarily be practical. You suggested there should just be one defence, and these, if in good faith, they intended to point out for the purpose of removal matters producing or tending to produce feelings of anti-Semitism towards Jews. Can you expand on this, Mr. Berkes?
Mr. Berkes: Thank you very much, Madam Chair. The senator raises an interesting question.
From a practical standpoint, if the offence is Holocaust denial, then a defence that says prove to us that Holocaust denial is true, it’s absurd. Certainly, it’s hard to envision any religious good-faith argument that could be premised on Holocaust denial.
I would suggest that there could be a public debate about certain aspects of the Holocaust and interpretations. That may be something that could be defended, but certainly the activity that is covered by this proposed amendment is already criminalized by section 319(2), and in appropriate instances where the Attorney General green lights a prosecution for that, all of the four defences would obviously be available.
One of the reasons that those defences are written in is it allowed for the constitutionality of this section. The Supreme Court of Canada has ruled that perhaps without those defences this would be an unreasonable limit on free speech, but with those defences available, that saved the section.
The section is important to be available for the Attorneys General. Thank you very much for your question.
Senator Pate: Thank you, Mr. Berkes. I am just following up from Senator Dupuis’ question. Do you feel this provision adds to, is more performative in nature or creates the kind of substantive protections that need to be in place?
Second, when a previous witness was before us from the Canadian Civil Liberties Association, there was some discussion about whether this might, in fact, provide a greater platform for those who seek to engage in Holocaust denial. I’m curious as to what your views are with respect to those concerns.
Mr. Berkes: Thank you very much, Madam Chair. It’s a very important question that the senator raises.
The Canadian Bar Association is limited to speaking to the mechanics of pieces of new suggested criminal legislation. Whether something is, as the senator may suggest, performative, is beyond the scope of what I can comment on.
Certainly, what I can comment on is that criminal prosecutions raise difficult issues. They often or very often deal with conduct that society considers abhorrent. We have publication bans to protect complainants in various prosecutions. Certain evidence that is presented is shielded from the public because of the nature of that evidence. Having the Attorney General as a gatekeeper in these types of prosecutions counterbalances this notion that all we’re going to be doing is giving a forum for people to air conspiracy theories.
If the Attorney General feels a prosecution is appropriate in a given situation because the activity rises to the level where it requires a prosecution and potentially criminal sanction, I think that would outweigh any concern that this would give some kind of platform upon which to, for lack of a more delicate word, spew hate. Thank you for your question, senator.
The Chair: Mr. Berkes, I have a few technical questions of you as well. What do you think would be considered a private conversation?
Mr. Berkes: Thank you, Madam Chair. That is a very important question. Certainly at the time that the section 319(2) was enacted, the internet wasn’t what it is today. I must admit, I did a little review already when I read previous questions. I know that was the final question you asked in the last session dealing with this, so I did think about it a little bit.
Look, I have to rely on my wife. She’s far smarter than me. Whenever I have these questions where my head is stuck in this academic criminal law matrix, I say, “Can you tell me how the real world works?” She obviously indulges me. She is an avid romance reader, but they have Facebook groups. They are closed so not everybody can enter into the group. To enter that group, you have to answer a couple of questions that you’re into that genre of book and then you’re granted admission.
In my respectful submission, a closed Facebook group is not necessarily a private conversation despite the fact that you’ve limited the parties that can access that information. In the interpretation, a conversation requires a dialogue back and forth between individuals.
When you’re dealing with email newsletters or even WhatsApp groups containing hundreds of people or Zoom calls containing dozens of people, I think once you lose the dynamic of a conversation back and forth, that certainly would rule out it being a purely private conversation.
Similarly, something that the public can access simply by paying an admission. I go back to the Criminal Code, section 163, that deals with obscenity laws. Showing a stag film in the privacy of one’s home was considered private. But showing it in a theatre where people can pay admission and gain access to that, that is a public forum.
A similar analogy could be drawn with the current legislation that if someone can sign up and receive the information simply by signing onto an email list or joining a Zoom call and there’s a certain level of anonymity for that person, I would say that’s not a private conversation because there’s not that back and forth dynamic.
I guess the long-winded thing that I’ve been saying is that term can be defined, but it will be subject to some litigation at some point. Thank you for your question.
The Chair: I have another question. I’ve been really thinking about this so I want some help from you. That’s the mens rea and the actus reus of the offence. Did the accused have the required level of mens rea, mental intent, and did they perform the acts included in the offence? Can you explain?
I’m sure you’ve thought about this. How would you argue this in court? Sorry to put you in a difficult place, but I’m having difficulty with this.
Mr. Berkes: With the amended legislation, it’s actually much simpler. You would have to demonstrate that the person, by their actions, either knew the effect would be to cause anti-Semitism or they were willfully blind. Wilful blindness is in the criminal law is akin to knowledge. It’s where you suspect something very seriously but you consciously do not ask that question of yourself because the answer would inevitably affix you with that knowledge.
Certainly, one of the things, if I were prosecuting this, is I would show the reaction in the public. I would get evidence on social media of what people’s statements were if the reactions were to resort to violence.
I don’t like to use too many examples from the United States, but when a certain person in government makes a speech and then the reaction is that all the people who heard that speech march down to the seat of power and start trashing the building, you could argue that person should have known the effect their words would have had. It would be similar in terms of a prosecution.
If I were defending it, as I am a defence attorney, I would say that the statements that were made, had a good faith backing and were not made to incite violence. I would point out parts of my client’s statement that showed that it was simply for discussion but not rising to the level where it was an exhortation to do something, especially something violent.
The Chair: I have been listening to you very much on the criteria for the Attorney General to justify consent or deny pursuing the new provisions. What criteria do you suggest should be in place?
Mr. Berkes: Thank you for your question.
The Chair: I may be putting you in an unfair position. If you are uncomfortable, do not answer.
Mr. Berkes: It is for the Attorneys General to come up with criteria. I believe Senator Cotter pointed out that there are often prosecution manuals that set out general policies. It would be subject to consultation with various stakeholder groups, some of the very same people who appeared before you, and they would consult with the Attorney General, and then the Attorney General would come up with a series of criteria based on that. I think from a practical perspective that is how it should work.
The Chair: Thank you very much, Mr. Berkes. We have a question from Senator Cotter.
Senator Cotter: Thank you, Mr. Berkes, and in follow up to that last dialogue with the chair, I am guessing that this legislation was not part of the dialogue that often occurs at the Uniform Law Conference of Canada with federal and provincial prosecutors and defence counsel. I am wondering if you can confirm that, if you know.
Secondly, is that location where the dialogue that you just invited regarding the development of policy criteria — assuming that the Government of Canada is open to the conversation about the criteria or articulating the criteria and providing reasons — actually a useful place for that conversation to occur? Thank you.
Mr. Berkes: Madam Chair, thank you very much for inviting me here. Senator Cotter raises some important questions. I have not attended the Uniform Law Conference personally, but members of the Criminal Justice Section at the Canadian Bar Association attend on a regular basis. From speaking with them, it is my understanding that is not necessarily a forum where new issues are debated but more a place where criminal law and various procedural issues are debated and when problems with certain aspects of the law that are highlighted, various solutions are put forward.
There are certain substantive issues that do get debated. Mandatory minimum sentences were debated very widely at the Uniform Law Conference, and certainly raising issues around criminal law at the Uniform Law Conference gives the government ready access to subject-matter experts at the highest level in Canada. Certainly, that would be a great place to raise any criminal law issues.
But in terms of various stakeholders, the discussion has to be broader and wider, and it really requires the minister’s office to set up potential round tables, potential meetings with various groups and then solicit their opinions.
The federal government has a role to play in a leadership capacity in developing best practices. Obviously, the Attorneys General are provincial and not bound by what the federal government says, but if the federal government came up with suggested criteria, those would certainly inform any discussions at the provincial level.
No one has asked me this question yet, but the federal government has a significant role to play in the enforcement of these types of hate crimes. I have not vetted this through Ms. Terrien at the CBA, so I’m sure I’m going to get a speaking to, but we have a federal police force. Perhaps in Ottawa they could come up with a training manual as to how to investigate these crimes. One of the discussions my wife and I often have is the public seems not to understand that half of a criminal case is based on evidence and that evidence is obtained by police. Having a police force with specific long-term training involved in getting the type of evidence needed to prosecute this case, in preparing witnesses to testify in a way that is understandable and speaks to the very specific issues in this type of prosecution would be invaluable in ensuring that criminal legislation functions in an appropriate manner and serves the public. I think the administration of justice would significantly benefit from the RCMP creating a dedicated hate crimes unit, training their officers, leaving those officers in those positions long term, because when they understand those issues they can train other police forces.
No one asked me that question, and I am probably going to catch heck for bringing it up without being prompted, but there you go. Thank you.
Senator Cotter: In your defence, perhaps you could say that one of us asked that question retroactively. Thank you.
Senator White: Thank you for that response because it was a question similarly asked to previous witnesses about coordination. We have 198 police agencies in this country from five persons to 32,000 people in one agency, and I think there is a lack of coordination, as well as a lack of training. I don’t think the Canadian Police College takes on much of a role when it comes to training in relations to hate crimes.
Specifically on the coordination piece, the federal government of Canada does not set standards for policing in Canada. They let every jurisdiction set their own, which is a challenge in many areas but I think in this area in particular.
When we’re talking about whether the RCMP has dedicated teams, if nothing else — because they don’t have the same number of resources in every province that may be available — would it not make sense that they actually have responsibility for reporting by all agencies into the RCMP and that the RCMP then could ensure that the investigations are being conducted in an appropriate manner?
Mr. Berkes: Thank you very much for the question. One of the issues that arises in prosecutions is that provincial Crown attorneys are tasked with prosecuting the Criminal Code offences, whereas federal prosecutors are tasked with prosecuting other statutes, such as the Controlled Drugs and Substances Act, tax act statutes, various railway statutes. You have to be careful of whose jurisdiction it is.
Certainly having the RCMP take a lead in developing proper techniques for evidence gathering, case preparation, and offering that training to local police forces that may not have the resources. The federal government — where a local police force is too small for a dedicated hate crimes unit, having an open dialogue where the local unit — could pass that information on to a federal RCMP unit that could have better resourcing, more experience, and help gather that evidence is not necessarily improper and can be looked at.
Senator White: If we look across the country, with the exception probably of the PWEU, or Provincial Weapons Enforcement Unit in Ontario, the RCMP took on a role of national weapons enforcement support teams right across the country to support agencies — both RCMP detachments as well as police services other than the RCMP — to give a level of assurance to the government that investigations were being done similarly in St. Albert, Alberta, as they were in Sydney, Nova Scotia.
It is not the first time they’ve done this, and they have responsibility as the national police service to provide some roles that nobody else provides, labs, et cetera. I guess I have to put this in the form of a question. My suggestion is that it is not like we haven’t done this before. There is an issue around federal resources with the RCMP. That’s someone else’s issue.
If we are going to be passing legislation and setting expectations, we should give them the tools to do that, rather than not just the responsibility. Would you not agree? There we go.
Mr. Berkes: The only caveat — in principle I agree that criminal activities should be investigated at the highest level possible with the most amount of professionalism possible. It benefits the system, Crown attorneys, defence lawyers, judges and the administration of justice at the end of the day.
The only unique feature of this type of legislation is, once again, the provincial Attorney General is the one that will have to sign off on the prosecution. The only wrinkle that I see is that the federal RCMP is investigating it, the evidence is then turned over and then the decision whether to move forward has to be within the provincial sphere.
Senator White: But that is done in the firearms realm — sorry, Madam Chair — in Ontario and in Quebec as well — the actual prosecutorial responsibility is provincial even though a federal agency is supporting local services in the investigation and prosecution.
Mr. Berkes: Right. No, I’m not talking about that. I’m saying that in Ontario, the police lay the charges and then the Crown review them and can proceed with them. There is no gate-keeping function of the Attorney General.
Senator White: Like B.C. and New Brunswick have?
Mr. Berkes: B.C. and New Brunswick have charge approval Crown, which is lightly different than Ontario. In Ontario a police officer will lay the charge and then the Crown will review it. In B.C. and New Brunswick, it is actually the Crown that will approve the charge at the get-go. The police don’t lay those charges. That’s the only issue that would have to be worked out. I don’t think it is insurmountable. Thank you for your question.
Senator White: Thank you very much. Thank you for being here, Mr. Berkes.
Senator Boniface: Thank you for being here, Mr. Berkes. Senator White’s question spurred me to the other principle that you referred to, which was policy with respect to what would be made public. Am I correct that a decision not to proceed with a hate crime would be federally framed up, at least from the perspective of the reasons that one would not proceed, so that we don’t get inconsistencies from Attorney General to Attorney General. Because I think that’s one of the concerns that I think people will have — [Technical difficulties].
Mr. Berkes: Sorry, Madam Chair, I’m having trouble hearing the senator’s question.
The Chair: I want to say to you, Mr. Berkes, thank you very much. You were patient with us today, and we have really learned a lot from you.
Also, if I may ask you when you return, if you can tell the Canadian Bar Association that this committee really relies on the Canadian Bar Association to support us in our work. You have never let us down, and you always have, including yourself, been amazing witnesses. Thank you so much, and please also convey this to the president of the Canadian Bar Association that we really appreciate your support. Thank you for your attendance today, Mr. Berkes.
Senators, this brings us to the end of our hearing today. We will now adjourn.
(The committee adjourned.)