THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 1, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:31 p.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 very sorry. We have had to start late, because there were votes in the House of Commons.
Minister Lametti, welcome to the committee.
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]
Should any technical or other challenges arise, please signal this to the clerk immediately and the technical team will work to resolve the issue.
I would now like to introduce the senators who are participating in the meeting: Senator Pierre-Hugues Boisvenu, vice-chair, Senator Batters, Senator Campbell, Senator Clement, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Harder, Senator Pate, Senator Wetston and Senator White.
[English]
Senators, please signal to the clerk by using the “raise-hand” function if you have a question.
Today we continue our study of Divisions 1, 21 and 22 of Part 5 of the Budget Implementation Act. Division 1 deals with the taxation of the Canadian Pacific Railway. Division 2 deals with the addition of Holocaust denial in the Criminal Code. Division 22 deals with judges’ compensation.
Today we welcome the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. He is joined by the following individuals from the Department of Justice Canada: Warren J. Newman, Senior General Counsel, Public Law; Michael Ezri, General Counsel, ORO Tax Law Division; Nathalie Hébert, Senior Counsel, Team Leader, Criminal Law Policy Section; and Anna Dekker, Acting Director and General Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector.
Minister, welcome, and we look forward to your remarks. Please proceed.
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Honourable senators, thank you for your patience. I’m joining you today from my office in Ottawa on the traditional territory of the Algonquin people. Thank you to Warren, Anna, Nathalie and Michael for supporting me today. And thank you for inviting me, senators, to speak about divisions in Bill C-19 that impact the justice system.
[Translation]
First, let me begin with Division 21 of Part 5 of the Budget Implementation Act. There has been an alarming increase in incidents of anti-Semitism and Holocaust denial in Canada and around the world. Unfortunately, anti-Semitism has a long history in Canada. Jewish Canadians have suffered discrimination and unfair treatment in many aspects of life and have been, and continue to be, subjected to harmful, sinister stereotypes.
[English]
Holocaust denial, with the express intention of promoting hatred against Jewish people, is an especially harmful and damaging form of anti-Semitism. To that end, the Criminal Code would be amended to create a new offence of wilfully promoting anti-Semitism by condoning, denying or downplaying the Holocaust through statements communicated other than in private conversation. The existing hate propaganda offences in the Criminal Code may not capture all incidents of anti-Semitism and Holocaust denial, but I want to emphasize that this offence still requires as an essential element that there be wilful promotion of anti-Semitism. This keeps it in line with existing Criminal Code offences.
[Translation]
Recognizing the worrisome trend of anti-Semitism, in January 2002, the United Nations General Assembly unanimously adopted a resolution condemning Holocaust denial. The General Assembly urged all UN member states to condemn Holocaust denial, in line with earlier UN resolutions of 2005 and 2007. A number of countries, such as Belgium, France, Austria and Germany, have already made Holocaust denial a crime.
[English]
Budget 2022 also proposes to provide $20 million to support the construction of a new Holocaust museum in Montreal as well as $2.5 million in funding for the Sarah and Chaim Neuberger Holocaust Education Centre in Toronto. These initiatives, along with the amendments to the Criminal Code, are important to fighting anti-Semitism in Canada.
Division 22 has the overriding goal of strengthening our courts by upholding judicial independence and providing judicial resources to courts in their service of Canadians. The amendments proposed in this division fall under two main categories. The first category implements the response of the government to the report of the 2020 Judicial Compensation and Benefits Commission, also known as the Quadcom.
[Translation]
The commission provided its report to the government on August 30, 2021. On December 29, 2021, the government issued its response, accepting all of the commission’s recommendations. The proposed amendments would implement these recommendations by providing for: the continuation of judicial salaries in accordance with annual statutory indexation; an increase to the incidental allowance and the representational allowance; and the creation of a new medical assistance allowance for judges in receipt of the allowance for northern judges. Enacting these amendments would demonstrate respect, by the executive and legislative branches, of the independence of the judiciary and of the fundamental constitutional principles at play in setting judicial compensation. This in turn builds public confidence in the courts and in the rule of law.
[English]
The second category of amendments would allow superior courts to respond to existing and projected workload pressures by creating 24 new judicial positions across nine different courts from coast to coast to coast. As the budget indicates, the common theme in these investments is access to justice. The government recognizes that investing in our judicial resources will help the justice system emerge from the challenges and disruptions of the past two years, and I am confident that these investments will not only assist our courts in the near term but serve Canadians long into the future by enabling even more exceptional jurists to come forward and serve on the bench.
[Translation]
On that point, I note that since November 2015, the government has appointed more than 525 superior court judges. These exceptional jurists represent the diversity that strengthens Canada. Of these judges, more than half are women, and appointments reflect an increased representation of visible minorities, Indigenous, LGBTQ2+ and those who self-identify as having a disability. I assure you that I continue to work diligently to fill existing judicial vacancies with exceptional candidates. I am fully seized of the need to fill existing vacancies, and I am looking forward to announcing further appointments in the near future.
[English]
Finally, Division 22 proposes the creation of the office of prothonotary of the Tax Court and the office of supernumerary prothonotary in relation to both Federal Court and Tax Court prothonotaries. The use of prothonotaries at the Tax Court of Canada will free judges to focus on complex matters, while prothonotaries specialize in addressing less complex cases and performing other functions that enhance court efficiency. This is a cost-effective way to enhance access to justice to the public.
Honourable senators, I end by reaffirming the government’s commitment to enhancing public confidence in the justice system. I believe the amendments proposed to Divisions 21 and 22 will help us achieve this goal, and I am now happy to respond to any questions that you may have.
The Chair: Thank you, minister.
Senators, I want to remind you that the minister will be here until approximately 5:30, and then we will have some time with the officials — about 45 minutes. So I respectfully ask that you keep the technical questions for the officials and ask more of the policy questions to the minister.
Mr. Lametti: Madam Chair, I will just point out that in 22 minutes, I will have to take two minutes to vote electronically. I will have to step away to vote, and then I’ll come right back.
The Chair: Minister, we are aware of that. We appreciate very much that you have made the time.
You have covered most of the issues in the Judges Act, but I have some administrative things I need you to confirm. Before I do, Marc Giroux, the Commissioner for Federal Judicial Affairs, was here before our committee on Monday, but because of technical difficulties, we could not hear from him. He did submit a brief, which we have also sent to your office.
I want to get two things out of the way, which are that the government is required by the Judges Act to introduce the necessary legislative amendments within a reasonable period, and the government introduced it in the budget implementation act as soon as possible; is that correct, minister?
Mr. Lametti: That’s correct, Madam Chair.
The Chair: Thank you, minister. We will now go to questions from senators.
[Translation]
Senator Boisvenu: Welcome, Mr. Minister. It’s always a pleasure to discuss government bills with you.
I’d like to talk about the judicial vacancies situation. This has been a recurring problem for the past 10 years. You will recall that the Senate has already done a study on judicial vacancies and a bill was introduced in 2016, if memory serves.
Recently, a chief justice of the Superior Court of Quebec called the situation in Quebec “catastrophic.” Quebec’s bar association said that the system was stretched to the breaking point. Moreover, due to the pandemic, we are already seeing cancelled trials and released criminals on the horizon, as we saw in 2015 and 2016.
My question is simple, Mr. Minister. You just added 21 positions in your budget, but you still have 57 vacancies. These vacancies have been a recurring problem since 2015. There were once as many as 70 vacancies. In 2016, the Standing Senate Committee on Legal and Constitutional Affairs, chaired by former Senator Runciman, made recommendations to the government to avoid having so many vacancies. We know that judges retire at age 75. Why not plan for the judges’ succession the year before they retire, so that you have fewer vacancies? Even though you’re adding 21 positions, it’s still just a drop in the bucket.
Why aren’t you following the Runciman report recommendations on delays in the court system?
Mr. Lametti: Thank you for your question, Senator Boisvenu.
Efficiency in the justice system is important to us. Bill C-5 will have a very positive impact on delays in our court system because most Charter challenges in the criminal system are based on mandatory minimum sentences enacted by the Harper government. If we eliminate some mandatory minimum sentences, we will have fewer delays in the court system.
I’m doing my part, and I believe that the system we have in place to select judges is not only transparent and politically neutral, but also quite effective. The system promotes quality and diversity of jurists. It’s important to understand that the number of vacancies varies. In June, the number of vacancies increases.
Senator Boisvenu: Mr. Minister —
Mr. Lametti: We appoint judges. Sometimes the number of vacancies drops to 20 or 15, and sometimes the number of vacancies goes up when judges retire.
Senator Boisvenu: Mr. Minister, if I may, I understand that you’re working in a transparent and efficient manner, but all the data I have before me about vacancies proves otherwise. This data is not about transparency, it’s about acting on the recommendations made by former Senator Runciman. I participated in that study in 2016. Given that we know judges’ retirement dates, it’s inconceivable that we don’t prepare six months in advance to fill these judicial positions and therefore keep vacancies to a minimum. This is not a private business where people come and go as they find better jobs. A judicial position is a very stable job and very few judges step down. They practically work until they retire.
I still don’t understand why your government doesn’t have a proactive recruitment process rather than always waiting until you have so many vacancies. The victims are the ones who suffer in this situation.
Mr. Lametti: Senator, I cannot accept the premise of your question. We do recruit in a transparent manner. I give workshops and we try to attract and encourage quality candidates. Of course, we will continue to work to fill those positions.
You can encourage people to apply. That will help us. I’m very pleased with the efficiency of the current system and I continue to appoint judges every two weeks. I think it works well and the chief justices across the country are pretty happy right now with our pace.
Senator Boisvenu: That’s not what the Chief Justice of Quebec just said.
Mr. Lametti: The information you’ve just provided is no longer current.
Senator Dalphond: Welcome to our committee, Mr. Minister. It’s always a pleasure to have you here.
You failed to mention the three divisions we have before us today, including the one that deals with the Canadian Pacific Railway Company. This act proposes that the contract with the Canadian Pacific Railway Company be amended to repeal section 16 retroactively to 1966, and proposed section 175 states that no action or proceeding based on section 16 may be instituted or continued against Her Majesty. Section 176 states:
No one is entitled to any compensation from Her Majesty in right of Canada in connection with the coming into force of section 174.
I have three questions for you.
First, since section 16 will be repealed by this legislation if it passes, the constitutional amendment for Saskatchewan will no longer be required. The constitutional amendment that passed is no longer necessary, because it was intended to free Saskatchewan from the obligation to honour section 16, which no longer exists. Is that not correct?
Second, there is an appeal pending before the Federal Court of Appeal right now. Therefore, if I understand correctly, the process referred to in section 174, which is currently before the Federal Court of Appeal, will have to be ended. Is that right?
Third, section 176 says there will be no compensation. I know that the Crown reimbursed Canadian Pacific for the capital tax from 1980 to 1990, until the federal capital tax was repealed. Does this mean that CPR will have to give the money back, since that was after 1966?
Mr. Lametti: Thank you for your question, senator.
The Constitution was amended at Saskatchewan’s request. It was an agreement made with the province in the House of Commons and the Senate. We were all in favour of the agreement. We took steps to coordinate legislative standards, so to speak.
I’m going to ask Mr. Newman to provide more specific details and answers.
Warren J. Newman, Senior General Counsel, Public Law, Department of Justice Canada: Thank you, Mr. Minister. I will just answer your first question, senator.
Don’t forget that the constitutional amendment was passed before this legislation was introduced. In 1966, they planned to make both legislative and constitutional amendments.
There are different ways to read section 24 of the Saskatchewan Act. One can argue that it is a static incorporation by reference, in which case it was and is necessary to amend the Constitution. That is certainly a teleological way of reading that provision. One can also argue that it is an ambulatory incorporation by reference. That means whatever it says goes, based on the rule of law. Of course, if the rule of law changes, at that point what’s left of section 16 would be amended accordingly.
As constitutional scholars, we prefer to exercise caution. We will assist the government and both houses in the constitutional amendment process, as well as in the event that a constitutional debate is required with respect to Alberta or even Manitoba. Perhaps my colleague Michael Ezri can shed some light on your other two questions. Thank you.
Senator Dalphond: If this is going to take too long, we can save it for the next panel with department officials.
The Chair: Yes, for the next panel of witnesses. Thank you.
[English]
Senator Batters: Minister Lametti, our Senate committee called legal experts before us to help us study this particular legislation, and I asked them this: What do you think about the fact the federal government has chosen to deal with the important topic of anti-Semitism and using the Criminal Code to combat it via the budget implementation act, which is 440 pages long and allows parliamentarians, through this process, only a more constrained ability to be able to debate and deliberate on these types of Criminal Code amendments?
Jody Berkes from the Canadian Bar Association replied:
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.
So 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.
Minister Lametti, this Criminal Code offence on anti-Semitism has nothing to do with the budget, and isn’t it the case that the only reason you have inserted this particular Criminal Code offence into your budget implementation act is that it gave your government the ability to scoop the identical bill combating anti-Semitism, which was already in the House of Commons, introduced four months ago as Bill C-250 by Saskatchewan Conservative MP Kevin Waugh?
Mr. Lametti: Thank you, senator. It’s an important question. Obviously, the importance of the substantive nature of this part of the bill is beyond question. We all agree we need to condemn anti-Semitism, and the United Nations has asked us to do it.
The reality is this needed to be done quickly. The reality is it is a priority to send out this message now as the United Nations has asked us and other countries to do. It’s a principle with which we all agree. The timing in the house is limited, and private members’ bills have little chance of getting through in time. They don’t always have the attention of their house leaders. We only have three weeks left before the end of session, and if we are going to get this done — and it’s an important thing to get done — we’re going to get it done now. I agree this was an appropriate place to insert this part of the legislation.
Senator Batters: Mr. Waugh had the success of passing a private member’s bill in the last Parliament, and I am certain he would have the attention of our house leader here.
Mr. Lametti: He had my support in the last Parliament for the last bill. That helped him along.
Senator Batters: You could have done the same here then too.
Minister, what is the definition of “downplaying” that you’re using for this new Criminal Code offence you’re establishing with this legislation? I doubt the word “downplaying” appears anywhere else in the Criminal Code. Oxford defines downplaying as “to make something appear less important than it really is.” My goodness, Minister Lametti, you’re contending that that constitutes a criminal offence?
Mr. Lametti: Remember it’s downplaying or diminishing. It is a known concept within the criminal areas of law. It’s also linked to the idea of promoting anti-Semitism or hatred, so it’s not simply downplaying the Holocaust on its own but in a way that promotes anti-Semitism according to the definitions we know. That part of the criminal element is still there in the act. We feel the standard is of the same level for this important crime.
If Anna Dekker or Nathalie Hébert would like to add more detail, they would be welcome to do so.
Senator Batters: I will certainly have a chance to ask the officials, but that’s a very important part of the bill. How do you define “downplaying?”
Mr. Lametti: I don’t have to define “downplaying” as the Minister of Justice. The word has a plain language meaning in English, and it’s tied together with the other parts of the bill to form the active part of the offence.
Senator Batters: Thank you.
Senator Simons: Minister, as a person of Jewish descent myself, I have been disturbed over the last few months to see anti-Semitic marches in the streets of our cities, to see people brandishing Nazi symbols and to see people appropriating the yellow star as though being asked to follow a mask mandate was somehow the equivalent of a genocide. Yet, I’m concerned, as Senator Batters has said, not only by the method of putting this important Criminal Code amendment inside the budget implementation act but also by the long-term implications for Canada’s Jewish community.
I know this may well be constitutional, based on the Keegstra and Whatcott decisions from the Supreme Court of Canada. However, I’m mindful of the fact that in the Keegstra Case in particular, it took 12 years of litigation to secure a conviction against Mr. Keegstra, who was the most outrageous promoter of Holocaust denial. He was subsequently sentenced to 200 hours of community service, but not before the notoriety of the trial boosted him from being a part-time teacher and garage mechanic in Eckville to being the leader of the national Social Credit Party. It provided him with a platform and a way to spread his message of hate to far more people than he ever would have in an Eckville classroom. I wonder with what you would say to me if I said to you that I am worried the backlash of this will inflame anti-Semitism more than defeat it.
Mr. Lametti: Thank you, Senator Simons. It’s always good to speak with you, and it’s an excellent question. Backlash is something we all fear. My answer would be: We’re taking this measure — this is one measure — in the Criminal Code as one part. We have also said, as a government, that we are going to introduce measures to attack the dissemination of hatred online because that is the primary platform through which hatred is disseminated today. More needs to be done. We need to make responsible, in particular, platforms in the way they facilitate this — social media platforms and other service providers.
My response to you would be, in all humility, that, yes, this is one small response. We will monitor any backlash carefully, but we do plan to take other measures, and we will continue to be strong in reacting to anti-Semitism, because we have seen its nefarious impact in our own country, as you have rightly pointed out, in the Keegstra affair. We will do our best moving forward.
Senator Simons: To me, the sight of people wearing yellow Stars of David as though they are victims of genocide when they are asked to follow public health guidelines is horrifically offensive. I don’t think those people should go to jail, but to me, that’s a clear example of downplaying the Holocaust. Would they potentially be captured by this legislation?
Mr. Lametti: Thank you, again. As I said to Senator Batters, if that downplaying is also something that wilfully promotes anti-Semitism, and it has to have that additional element to it, then it might be. There will be cases when it’s merely reprehensible — and reprehensible is reprehensible — and there will be other cases where it rises to the level of a criminal offence that would fall under this article of the Criminal Code.
As you know, the other definitions are from the Whatcott case, as you cited. I had a bill in front of the House of Commons last session — and I’m hoping that in some way, shape or form the substance of that bill comes back — to redefine the definition of hatred in the Criminal Code according to the definition that was set out in the Whatcott case. Again, that will hopefully be another element moving forward.
Senator Simons: Again, it made Whatcott a hero. It didn’t really help to shut him up.
Mr. Lametti: I take your point. It’s a good one.
Senator Cotter: Thank you very much and welcome back, Minister Lametti. It’s always good to see you. I have a few questions. I’ll just pose two, if I might, and defer any questions on Part 21 to others who are more knowledgeable.
My first question relates to Part 1, which is the Canadian Pacific Railway tax exemption amendment, and I want to pose this, with respect, as a leading question. This amendment in Part 1 addresses the Government of Canada’s liability or potential liability, that is federal liability, but does not and indeed cannot as a matter of constitutional law unilaterally address the outstanding tax exemption issues that exist vis-à-vis Manitoba and Alberta. Would that be a fair description of the situation and the goal, or at least the limits of the goal of the Part 1 amendment?
Mr. Lametti: Thank you, Senator Cotter. I’m going to turn that over to Warren Newman. I have an answer in my head, but I’d rather be certain.
The Chair: Senator Cotter, do you mind if we ask during the section when we hear from the officials, please?
Senator Cotter: Yes. I’d be happy to hear from you a bit later on that, Mr. Newman.
Mr. Newman: With pleasure.
Senator Cotter: My second question, Minister Lametti, is about the work with respect to dealing with the judicial compensation and the increase in the number of judicial positions, which is laudable. Certainly in my jurisdiction, the chief justices who I hear from are appreciative of the support and responsiveness from you and your office with respect to appointments. My question is along these lines.
A number of years ago, a former Attorney General and Minister of Justice for Canada said in often public remarks that every litigant is entitled to their decade in court, the point being that court processes are long and drawn out. As important as judges are, mechanisms to try to speed things along are sometimes significantly more valuable to litigants than their final day in court over the course of that decade. I’m wondering about the degree to which, aside from the work in Part 22, you and your department have been able to invest in earlier parts of the dispute resolution process that can produce satisfactory results for people without having to go all the way to the end of the process and a court hearing. Thanks.
Mr. Lametti: Thank you very much for that question. Immediately after this question I’ll step away for a moment to vote, with your indulgence. Thank you.
We are working on a number of different fronts. You’re absolutely right that delays within the judicial system require coordination and they require coordination with the provinces.
For example, in the old Bill C-78, which was the Divorce Act reform, we have pushed participants in that system towards mediation and arbitration as a matter of course in order to lessen the burden in particular on our superior courts, which handle the vast majority of family law cases.
I had already mentioned in my response to Senator Boisvenu how the minimum mandatory penalties have clogged up the system for a variety of different reasons. People don’t plea bargain when they are facing a minimum mandatory, they use a Charter challenge in order to try to reduce their possibility of incarceration.
We’re also putting more money into legal aid. As you know, from the bill you previously had in Senate, which began in the Senate and when I appeared before you a short time ago, we’re also trying to modernize a number of different procedures now that we have the technology.
So again, being responsive to the provinces and their suggestions, but also being responsive to COVID, we’ve actually learned a lot about how we can make the court system more efficient. We’re constantly working at that, and there are a number of different ways in which we can try to do that. There won’t, ultimately, be one successful manner in which we can make the system more efficient, but we will continue to do our best. A lot of it is working with the provinces as well, because of the civil justice component of the court systems both provincial and superior have to deal with. We will continue to work with the provinces as well to see where we can best use resources and where we can best amend both procedures and substance in order to get us there. Thank you.
Senator Cotter: Thanks.
The Chair: While the minister is gone, Senator Dalphond, do you want to ask that question to the official so we can use this time?
Senator Dalphond: Yes. Do you remember the questions? There were three questions. Mr. Newman answered the first one.
The Chair: Can you repeat them, please?
Senator Dalphond: The second and third questions were about the impact — I forgot exactly how I said it, but the gist of it was about the impact on the Federal Court proceedings pending before the Federal Court of Appeal, and the third question was related to the fact that the Crown has paid to reimburse CP Rail for tax on capital in the 1980s. I have forgotten the exact years.
[Translation]
Michael Ezri, Senior Counsel, ORO Tax Law Division, Department of Justice Canada: I have taken note of your questions, senator.
With respect to the second question, if the amendments pass, we will bring it to the attention of the Federal Court of Appeal as the appeals proceed through the judicial process.
With respect to your third question, it would be best if I didn’t attempt to give you an answer that would be inaccurate. We’re talking about the years 2001 to 2004. It’s true that Canadian Pacific paid some capital tax. However, the reimbursement is a matter under the jurisdiction of the Canada Revenue Agency and the minister of National Revenue. So it would be best if they were the ones to look at your question and then decide how to respond.
Senator Dalphond: Am I to understand that your brief as a respondent has not yet been filed in the Federal Court of Appeal?
Mr. Ezri: You are right. We now have a deadline, and Canadian Pacific’s brief has not even been filed yet.
Senator Dalphond: Thank you.
[English]
Senator Pate: Thank you, minister. It’s good to see you again. In the section about judicial positions, one of the questions I have is that you talk about increasing numbers and particular jurisdictions. I’m curious as to how you determine what the ideal ratio of judges is compared to the general population in order to make the system work effectively and if there had been studies done by the department. If we could have information about those, as well as if they have been done on different levels of court. I note that some of the measures that you have taken around prothonotary and the like seems to be in particular regions. Is that because they have particularly lobbied, or has some kind of assessment been done by the department?
Mr. Lametti: Thank you, senator, for the question. We would be happy to prepare documentation for you. We ask our provincial and territorial counterparts to tell us what their needs are, and that happens on an ongoing basis. So this particular allocation is based on the information that provinces have given to us based on what’s actually happening on the ground. I suppose that is, in some way, directly or indirectly, also related to their population.
With respect to the prothonotaries, these are Federal Court positions. We have prothonotaries at the Federal Court. They tend to do a lot of procedural work, especially in intellectual property and other areas. We are now allowing the Tax Court of Canada to have prothonotaries as well in order to increase their efficacy. They do a fair bit of administrative work.
There’s also a name change to “associate judge,” which is more reflective of what they do. Provinces will also have masters in their systems, which are somewhat similar, but those are provincial court appointments.
At the superior court level, you know the system there. Those are the vast majority of appointments made by me. Then the Prime Minister appoints chief justices for the courts, including the courts of appeal, and the justices of the Supreme Court of Canada.
Senator Pate: If I may, if there is information that the department can provide, that would be great, in terms of particular differing populations, sizes, issues. I ask, in light of some of the reports that have come out recently on the mass incarceration of, in particular, Indigenous and Black people, where that over-incarceration is greatest, whether there’s been any examination of other ways that appointments or other mechanisms might be used to try and address those systemic issues at the level of the judiciary.
Mr. Lametti: That is a fair observation. I certainly have had as a priority increasing not only the quality of our superior and Federal Court appointments but also their diversity. Since we took office in 2016, 54% of the appointments we have made are women; 4% are Indigenous, and we’re working hard at trying to recruit more; 12% are visible minorities; 6% identify as LGBT2Q; 31% identify as fluently bilingual; and another 13% identify as not being able to converse but understanding.
We are trying to increase the diversity of the bench. We know that having a more diverse bench will help us on over-incarceration because there will be a greater understanding as well as a greater credibility that will be brought to the judicial function. We all have a responsibility — in addition to me — to push good people to apply for the judiciary in order to reach that goal.
Senator Pate: Thank you.
Senator Harder: Minister, nice to see you again before the committee. I have two rather quick questions. One is a follow-up to Senator Dalphond’s question and the other is a follow-up to Senator Batters’ question. Let me start with Senator Batters’ question with respect to the notion of “downplaying.”
Can you confirm that the quality or, in fact, the explicit reference to “downplaying” also appeared in the private member’s bill to which the senator referred? And can you confirm that that gave you inspiration to utilize “downplaying” in the legislation before us?
Mr. Lametti: I can’t confirm that. Maybe one of my officials can. Otherwise, I will confirm that to you in writing.
Nathalie Hébert, Senior Counsel — Team Leader, Criminal Law Policy Section, Department of Justice Canada: I can confirm that the text of the legislation within the Budget Implementation Act is as it was in Bill C-250, except for one little change to the wording of one of the defences, just to ensure that it would capture the anti-Semitism provision. Thank you.
Senator Harder: Thank you. I think that transparency to this discussion is helpful.
My second question, minister, is with respect to the matter of Canadian Pacific Rail. Last week, we heard testimony from Canadian Pacific Rail officials who indicated they had not been consulted in any fashion by the Department of Finance on the inclusion of this matter in the budget implementation bill. It seems a little surprising to me. A reference to a taxation matter from over 60 years ago is unusual and not the best practice. I wonder if you would comment on the transparency of that lack of consultation.
Mr. Lametti: Thank you, Senator Harder, for that question. I am obviously not going to comment on something that’s not within my bailiwick, in a sense, with respect to what the tax department does.
What I can say is that it is not illegal. It has been done; government can cancel a contract. The legal position that we have is quite defensible. We were acting in a situation where a constitutional amendment was presented to us by Saskatchewan — again, I have said this publicly — without any consultation. We would have gladly worked with the Province of Saskatchewan, as we will work with Manitoba and Alberta should they want to come forward.
We were pushed to do that without any advance notice and without being able to work on that text. With that being said, we were working rather quickly. We have ensured that our legal position is sound, and I won’t comment other than that.
Senator Harder: I appreciate that. I just want to make the point, though, that retroactivity at that length of period seems a little unusual, to say the least.
Mr. Lametti: It certainly is not illegal. It’s not unknown in the law to have a retroactive clause.
Senator Clement: Thank you, minister, for appearing once again. My question is around the wilful promotion of anti-Semitism. I appreciated your response to Senator Simons, basically conceding that we all worry about backlash and how we’re going to manage that.
We’ve heard from a variety of witnesses, in particular from Ms. Zwibel from the Canadian Civil Liberties Association, who opposes the legislation and who said that we should rather focus on having culture in society marginalize people who engage in this kind of wilful promotion, rather than muzzle them.
I guess I heard you say that you would be funding museums, in particular, a centre in Toronto and a museum in Montreal. Do you think that’s enough? What else is your government proposing to deal with this? What other investments are you considering so that we can move toward having our culture, our society, promote proper language around this? This would mean policing ourselves, creating an environment where that’s not acceptable.
Mr. Lametti: Thank you, senator. That’s an important question, and I think you can glean from my previous responses that I don’t think that support is enough. I do think we have to do it. We are doing it in this bill. We are doing it elsewhere in the kinds of funding — we are working in various kinds of programming. We have had national workshops at the federal government for both anti-Semitism and Islamophobia within the last two years and, again, I think we have been on the forefront.
Sometimes all of the consciousness-raising or educational work that we can do isn’t enough. Sometimes we need the law, and I think this is part of the response. Old Bill C-36 was part of the response in terms of incorporating the Whatcott definition of hatred into the Criminal Code.
What we’ve heard about the online context is also important in the current day and age, where we need to combat the dissemination of hate online. We have seen that in spades in the last few years, in addition to anti-Semitism, anti-Islamic remarks, misogynistic remarks.
All of that needs to be taken on, and there needs to be a response and a “responsiblization.” So I certainly think the online context is one of the places in which we plan to move.
But again, the cultural and the societal education parts are critically important, and we’ve been doing that all along.
Senator Clement: Thank you for adding those comments about online issues. I hope to see the anti-racism secretariat take on a greater scope moving forward. Thank you.
The Chair: I have a question for you, minister. It’s a little difficult for me to ask this because you’ve done a very good job in increasing the diversity in Canada for the judges. It’s difficult to ask somebody who is increasing diversity to do more. However, one of the biggest challenges, during all the years that I practised, was the committee that recommends judges to you. For the longest time, I felt that they always — the diverse people — thought they were not married, et cetera. You changed it; you changed the committee, and I commend you for that, but I still think that, sometimes, they are gatekeepers. That is to say that 12% is still not 25% of our diverse population. In certain places, it’s even more. So what else are you doing to help make our judges really representative of our communities?
Mr. Lametti: Thank you, senator. I have, indeed, worked at diversity on the judicial appointment committees across Canada, and we continue to do that every time we reconstitute a committee. It’s critically important, because they bring a different way of reading a file to that committee, and that’s critically important to the process.
I’m trying to build trust. I’ve met with legal community leadership across Canada, and what I heard continually was, “We don’t bother applying because you’re never going to appoint us anyway.” I’m trying to break that negative image, and I think I’m beginning to succeed. There is beginning to be a trust from people that they will get a fair read. Not everybody will get past the committee, but they will get a fair reading of their file.
I think I’m getting to the point where I’m seeing some success where people are now saying, “Okay, I think this has gone on long enough that we can trust the process.” So I continue to work and meet with leadership of underrepresented legal communities constantly to push people to apply. I push everyone who is in a mentorship role, including all of us, to suggest that people apply for the bench. I will continue to use every effort to encourage people to apply. Hopefully, with that trust having been built, we’ll get to a better place more quickly than has previously occurred.
The Chair: The proof is in the numbers — the 12%. It’s way better than it ever was, and obviously trust is building. There is the trust with you and the Prime Minister, but there still isn’t the trust — because who judges you? Diverse people who judge you and understand you — so I leave that thought with you. I don’t need you to comment on it.
Being on the ground, I know that there is still a trust issue — not with you. But you don’t do the recommending. Anyway, I’ll leave that with you.
Senator Simons: I wanted to ask a question about the Canadian Pacific Railway.
As an Alberta senator, I’m a little concerned that Saskatchewan now has its exemption; the Constitution was amended for it. In Alberta, we have a more complicated situation because, I believe it was premier Ralph Klein who made it a condition of any constitutional change in Alberta that there should be a referendum first, which opens a giant can of worms.
I’m wondering what relief there might be for the taxpayers in Alberta to get treatment equal to the taxpayers in Saskatchewan.
Mr. Lametti: Thank you, senator. That’s a good question.
We would be willing to work with Alberta if and when they come forward, and I think we’ll cross that bridge when we get to it. Obviously, we will look at this through an equitable lens as well.
As I had intimated in response to a previous question, in an ideal world, Alberta, Saskatchewan and Manitoba — Manitoba is complex for other reasons — would have come to us together with the CPR, and we would have worked together for a solution. This is a less-than-ideal world and so, as a government, we dealt with the request from Saskatchewan, I think, expeditiously and equitably, and we will do the same when Alberta comes forward.
Warren, do you have anything to add there? I think I see you nodding and smiling.
The Chair: Maybe you can add it once the minister has left, Mr. Newman.
Senator Batters: Thank you. I guess I would just say Saskatchewan is smart and proactive. I’d also remind everyone that it was a government resolution, actually, that passed the Senate.
Mr. Lametti: I won’t argue with that, Senator Batters.
Senator Batters: Thank you.
To go back to the word “downplaying,” usually government legislation, with all the massive resources of the Department of Justice behind it, carefully considers and then improves any areas where there may be potential problems in private members’ bills or the areas of study on those types of issues.
Minister Lametti, the Department of Justice, generally, isn’t in the habit of cutting and pasting PMBs where one sole MP is trying their best to put forward an area that is important to their constituents or to Canada more generally.
Mr. Lametti: Thank you, senator. I will take it as a compliment to my drafters that you have noted the care within the Justice Department.
It’s the fact that it is combined with wilful promotion of anti-Semitism. The other three verbs being “condoning, denying or downplaying.” They do have plain-language meanings in English, but the fact that they are combined with the wilful promotion of anti-Semitism gives us a pretty good working definition — and we added that part — that is within the standard of criminal law, generally. So I’m comfortable with the definition as it stands moving forward.
Senator Batters: Thank you.
The Chair: Minister, we have one more question from the deputy chair of the committee.
[Translation]
Senator Boisvenu: Thank you once again for being here, Mr. Minister. I would like to come back to something you said earlier. You stated that eliminating certain mandatory minimum sentences would reduce court delays. I’m trying to understand your logic and I’d like you to explain that to me.
When the bill dealing with the legalization of cannabis was passed, you used the same language, that legalizing cannabis would result in fewer court cases, and that would reduce delays.
When Bill C-75 was passed, you again used the same argument, that once we had mixed charges again, delays would be reduced.
I’m trying to figure out how we will be able to reduce delays by amending the Criminal Code, when we know that it’s the police and Crown prosecutors who bring grist to the mill and fill up the courts. That’s where the bottleneck is, not necessarily in the Criminal Code. It’s really the resources that we’re lacking.
You said earlier that the Chief Justice made that statement a long time ago, but the Quebec bar association issued its statement on May 28, 2022, not May 2020. The Quebec bar association has said that the system is crumbling in Quebec. How are you going to reduce delays when you have 70 judicial vacancies? I have yet to understand your strategy for reducing delays, Mr. Minister.
Mr. Lametti: Of course, there’s no catch-all solution: Bill C-75 is part of it and so is the cannabis legislation.
However, statistics show that with mandatory minimum sentences, lawyers don’t even try to enter guilty pleas or negotiate plea bargains, because we’re talking about at least four years for mandatory minimum sentences. In addition, a great many Charter challenges are really challenging mandatory minimum sentences.
Senator Boisvenu: Nothing has changed, minister. Wait times are the same as they were pre-pandemic.
Mr. Lametti: The pandemic caused delays in the system. Let’s look at the Harper era, when the government got rid of conditional sentences and added minimum penalties — two of the three issues Bill C-5 seeks to address. As a result, not only did the overrepresentation of Black and Indigenous people in the justice system increase substantially, but so did court delays. We are also adding capacity that will help address the problem. I would point to the bill that was introduced in the Senate. A number of options are available, and we are working hand in hand with the provinces and territories, so I’m certain the situation will improve with time.
Senator Dalphond: I have a very quick question.
The brief submitted by the Quebec bar association was mentioned. Am I right in thinking that over 90% of the criminal cases subject to the delays discussed earlier are heard by the Court of Quebec, by provincially appointed judges?
Mr. Lametti: Yes, that’s right. A large portion of criminal cases are tried in provincial courts.
Senator Dalphond: Thank you, minister.
[English]
The Chair: Minister, thank you so much for being here today. I know how hard it was, but you made it possible. The committee very much appreciates it. It makes a big difference. I’ll just share with you that we would have preferred you to be here, but I know you had votes today. We might have had more dynamic conversation, but maybe next time. Thank you, once again, for being here.
Senator Simons: I wanted to ask the officials about that definition of “downplay.” Senator Batters and I don’t agree on a lot of things, but I think we agree on this. This is a word that is perhaps not as wholly novel as “reasonable general concern” in Bill S-7, but it is still unusual wording. I’m wondering if you can explain to us what “downplay” is technically meant to mean.
If somebody, for example, says that being vaccinated is just like a war crime that was prosecuted at Nuremberg, is that downplaying the Holocaust? Or to downplay the Holocaust, do you have to actively say, “Oh the Jews are exaggerating?”
The Chair: Senator Batters wanted to hear this explanation, and she has just stepped out. So you don’t need to repeat it, I will ask you to wait a few seconds. She will be back, and you can give that explanation to both of them.
Ms. Hébert: While I understand the concerns with the word “downplaying” not being defined, the word “condoning” is not defined either. A court would use the regular meaning found in the dictionary. For example, “downplay” is defined to mean “to try to make something appear smaller or less important than in reality; to minimize; to play down.” But the court would conclude that any condoning or downplaying of the Holocaust, given the facts of the particular case, would also wilfully promote anti-Semitism, and I think that is the important part. I think the defining of downplaying is not as important as it is likely being made out to be in the sense that a judge would have to figure out whether or not it is also wilfully promoting anti-Semitism. I can’t speculate on what would or would not fall within the scope of the offence. Without actual facts and circumstances to consider, it would be inappropriate. Hopefully, that answers your question.
Senator Simons: It doesn’t, precisely. Is it a sort-of mens rea question, where there has to be a wilful intent that by doing this they are promoting anti-Semitism versus extraordinary ignorance or extraordinary insensitivity?
Ms. Hébert: Absolutely. Wilful promotion of anti-Semitism is part of the mens rea, so if the wilful promotion is not there — it’s hard to give an example, but certainly if somebody is downplaying the Holocaust but not wilfully promoting anti-Semitism while doing so, then the mens rea is not made out. So I think the important part to keep in mind is that the words “downplaying,” “condoning” or “denying” by themselves don’t capture this offence unless doing that action is wilfully promoting anti-Semitism.
Senator Simons: Thank you.
The Chair: I will go to Senator Batters.
Senator Batters: I missed the first part of that answer.
The Chair: You didn’t. We waited for you.
Senator Batters: Thank you.
Here is a fact scenario. What about the fact scenario that Senator Simons gave you earlier about the yellow star?
Ms. Hébert: As I indicated before, I can’t speculate on what would or wouldn’t fall within the scope of the offence. I think that would be for the law enforcement. In order to proceed, this offence would have to get the consent of the Attorney General of the province. I can’t speculate on what would or would not be captured by the offence. I’m sorry.
Senator Batters: Another question that I have is going back to the CPR issue. Could you explain this in plain language? Because this did become a bit of an issue. It was a story in Saskatchewan because that constitutional amendment was a good result for the people of Saskatchewan, and I think people are now sort of confused about what’s happening here. Why is it in this other piece of legislation? Why wasn’t it considered, dealt with, for that?
It’s helpful to have the minister generally at the beginning of these types of legislative considerations because the minister and the officials can set out what the basic fact scenario is for these different elements. We had two solid meetings before we heard from the minister, so it was a bit confusing. If you could, explain what this particular provision dealing with CPR does that the constitutional resolution did not do. I think I heard today that this has no impact on Alberta and Manitoba. This is a clean-up effort for any potential residual effects that this might have had for Saskatchewan.
Mr. Newman: It’s certainly our position, and my colleague Mr. Ezri can complete this answer as necessary. It is certainly the position of the government that the thrust of these measures being put forward is addressed to any potential liability that might accrue to the federal Crown having now put in place this constitutional amendment. It’s not an amendment by the federal Crown. It’s obviously authorized by the three legislative houses, including the two federal houses, and the Governor General made the proclamation but was, in a sense, required to do so once the three houses authorized that amendment. That said, we’re in a litigious context, and so the prudent course was thought to just make it quite clear that no liability would accrue to the federal Crown on the basis of this amendment. That was certainly the thrust of the proposal.
With respect to the other provinces, the legislation does not address, is neither here nor there, in relation to Alberta or Manitoba as such. Arguments could be made. There is litigation going on before the courts of those provinces, and we wouldn’t want to prejudice positions taken before those courts. But certainly, the approach we’ve taken is to be open to amendments that the provinces would like to pursue if they are reasonable, and that is the approach we took with Saskatchewan.
Senator Batters: What is your comment on the retroactivity aspect? Because when the CPR witness was here, Mr. Clements, he didn’t seem to think that this particular legislation really cleared that up to any extent.
Mr. Newman: Again, my colleague might want to address this, but I’m not aware of those comments, and I don’t want to comment on the policy behind it so much, but clearly the date chosen was the same date for reasons of harmony. It’s the same date used in the Saskatchewan constitutional amendment, August 29, 1966, and that date comes from the letter from the president of the CPR, which is on the record as saying the CPR would not object to constitutional amendments or legislative measures to deal with this henceforth.
Senator Batters: What did you mean when you said that you weren’t aware of those comments? You followed the testimony —
Mr. Newman: I simply haven’t reviewed beyond the comments that were made. Do you mean at the time when we all appeared on the amendment itself?
Senator Batters: No, Mr. Clements came to the Senate Legal Committee a couple of weeks ago. It was over a lunch hour. We held a committee meeting where he testified, so if you haven’t watched that —
Mr. Newman: We will have to review those comments.
Senator Batters: I thought you would have seen that. Okay. Thank you.
Mr. Newman: No, I’m not omniscient. It wasn’t brought to my attention. Thanks.
The Chair: Sorry, Mr. Newman, I thought you followed our committee meetings.
Mr. Newman: I follow them assiduously.
Senator Cotter: Following along the same lines, Mr. Newman, I want to pose the question I posed earlier to Minister Lametti about the limited reach that the Part 1 amendment can have. More specifically, even if you wanted to reach out to address the Manitoba and Alberta situations, given that it’s generally accepted that the exemption has been constitutionalized in those two jurisdictions, it’s actually beyond your authority to be able to do that without a constitutional amendment and partners in Alberta or Manitoba. That was the leading question I wanted to get confirmed by Minister Lametti, but I thought he punted it to you.
Mr. Newman: Yes, he did. It is not a good — obviously in my authority, but of your authority as Parliament as to what can be accomplished. The principle is reflected in section 42 of the Interpretation Act. Maybe I can refer to that opening subsection of section 42 of the Interpretation Act:
Every Act shall be so construed as to reserve to Parliament the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person.
The Supreme Court, in referring to that very provision in the Canada Assistance Plan reference said that is an expression of the principle of parliamentary sovereignty. So within the limits of the Constitution, Parliament is expressing its sovereign will in enacting these provisions, and they go as far as the government deems to be reasonable in terms of ensuring that no liability, no compensation, nothing flows from clause 16 in relation to the Crown in right of Canada, since August 29, 1966.
With respect to Alberta —
Senator Cotter: I’m sorry, I don’t mean to interrupt. You provided a very good answer, but not to the question I asked. I am familiar with the Interpretation Act and the strategies having, quite frankly, used them occasionally in Saskatchewan years ago. But my question is, despite the Interpretation Act and Parliamentary sovereignty, I’m suggesting to you and to the minister that it is not within the authority or ability of the Government of Canada by this or any other legislation on its own to solve the Manitoba and Alberta tax exemption issue that continues to exist. That was my only question. I just wanted to confirm your understanding that the Government of Canada, having embedded these tax exemptions in the constitutional documents of the three prairie provinces, it requires constitutional action to resolve those issues as they remain for the other two provinces.
Mr. Newman: As I said, I don’t want to prejudge conclusions that might be reached before the courts of the provinces and subsequent litigation and so on, but I would say we acted on the Saskatchewan amendment. The reason I mentioned parliamentary sovereignty is because the principle operates within a constitutional framework, and clearly it is limited by constitutional restraints. A constitutional amendment was judged to be needed by the government of Saskatchewan and they proceeded on that basis. One would think that Alberta would also want to proceed on this basis, given that section 24 of The Alberta Act is identical to section 24 of The Saskatchewan Act. A constitutionally entrenched section 43 bilateral amendment would seem to be necessary. Manitoba is in a slightly different situation because of the extent to which the requirement is constitutionalized. The Manitoba Boundaries Extension Act is not in the schedule to the Constitution Act, 1982, so is it on the same footing as The Alberta Act or The Saskatchewan Act? Certainly, the Manitoba Act is of a constitutional character, and section 1 of the Manitoba Act deals with Manitoba’s boundaries. Perhaps one approach would be simply to amend section 1 of the Manitoba Act by way of a bilateral amendment.
In other words, there may be different roads forward, and we have not had to examine them in great detail yet. Since we have had no discussions with the provinces either in respect of their perspectives on these potential constitutional or legislative amendments, we just didn’t want to commit ourselves beyond that.
Senator Cotter: Thank you very much, Mr. Newman.
Mr. Ezri: I might just add to that. I want to be clear that the question of what happens and what is left of section 24 of The Alberta Act and section 2 of the Manitoba Boundaries Extension Act once the underlying contract is gone is a difficult legal question, and it’s not one that we want to foreclose our ability to deal with down the road if those matters come up in the Alberta and Manitoba courts.
Thanks.
[Translation]
Senator Dupuis: Thank you to the justice officials. Their recent explanations and answers are very enlightening.
I have a technical question about the offence of downplaying or denying the Holocaust, so new subsection 319(2.1). I want to discuss the position expressed by representatives of the Canadian Bar Association during their recent appearance before the committee. They said there would be two options when it came to Holocaust-related hate propaganda against Jewish people.
The two options are as follows: current section 319 of the Criminal Code, which sets out four possible defences; and the new subsection, which is more precise in relation to the Holocaust, referring to denying, condoning or downplaying the Holocaust. The bar association seemed to find that problematic. Why create a different offence when the behaviour is already covered by the current provision?
Even if we accept the idea that the reference to the Holocaust is a way to be more precise about the extermination of Jewish people, specifically, as opposed to any other group of people, the four defences would hardly be appropriate. Either that or no application could be found, according to the witnesses. I hope I’m not misrepresenting what they said.
Can you explain the rationale behind all that? I’d also like you to confirm something for me. Is it true that, if someone is denying the Holocaust in statements relating to Jewish people, it would be possible to choose between the two offences?
Ms. Hébert: Thank you for your question, senator.
I would say that, yes, currently, someone who wants to apply section 319 of the hate propaganda legislation could do so, but there are some gaps because it doesn’t necessarily convey the exact meaning of anti-Semitism. That’s one of the gaps the new offence is trying to close. As it currently stands, the Criminal Code prohibits the wilful promotion of hatred against certain identifiable groups, including those distinguished by religion such as Jewish people; however, it is not currently considered a crime to wilfully promote anti-Semitism. That is what the new offence seeks to remedy, to indicate that there would be two offences available.
However, I think a more specific and precise offence would be easier to administer in court in some cases, given that there have been cases that went ahead but did not result in a conviction under existing subsection 319(2) the Criminal Code. The new offence provides precision around the wilful promotion of anti-Semitism by denying or condoning the Holocaust.
Senator Dupuis: May I ask a follow-up question, Madam Chair?
The Chair: Yes, go ahead.
Senator Dupuis: Under the current provision, then, if someone denies or condones, or promotes hatred against a group, and if the group in question was exterminated by the Nazis, but there isn’t a reference to Jewish people, what that does, to some extent, is isolate a group of people that were exterminated by the Nazis by creating a specific offence relating to the Holocaust, which, as per the definition, applies solely to Jewish people.
Does that mean that, for any other situation in which another group of people was exterminated by the Nazis, current section 319 would apply? Is there a risk that the group would not be considered an identifiable group?
Ms. Hébert: It’s possible, depending on the situation. I think what the new offence seeks to do is reassure those who are still alive today, in other words, Jewish people who are the target of hate propaganda. Therefore, if we are talking about someone who was affected but who is no longer alive today, it’s hard to say that current section 319 could be applied from a group standpoint.
That is to say, Jewish people today, who did not experience the Holocaust, are still affected by anti-Semitism at the hands of people who still deny or condone the Holocaust today. It’s really for people who are still here, not for what happened previously.
Senator Dupuis: How would the available defences be appropriate? In other words, say I downplay the Holocaust and I target Jewish people and try to promote hatred against them — which, as you can imagine, I condemn, of course — but let’s say I do and I want to use one of the defences available to me. Section 319 provides for four defences; for instance, I could claim that I didn’t know my statements weren’t true. What was your analysis of the four defences in relation to the new offence?
Ms. Hébert: If we look at Bill C-250, which was introduced previously, the four defences are exactly the same. In this bill, the fourth provision, paragraph 319(3)(d) of the Criminal Code, was amended to become paragraph 319(3.1)(d), to ensure that it conveyed the meaning of anti-Semitism. The current Criminal Code provision reads as follows:
if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Now, under new paragraph 319(3.1)(d) of the Criminal Code, as proposed in the bill before you, the defence is specific to better convey the notion of feelings of anti-Semitism, not toward an identifiable group in Canada, but specifically toward Jews — and not necessarily just in Canada, but anti-Semitism toward Jews.
The only other existing defence that may not be applicable — and it’s really hard to find another situation that hasn’t been considered — is the one about the statements being true. That defence should never be able to be used, but it would be up to the court to decide. We tried to think of every possible scenario, but it’s really tough to say whether a situation could arise that we haven’t thought of. We wanted to make sure the same defences were kept to ensure consistency with the provisions in subsection 319(2).
Senator Dupuis: Thank you.
[English]
Senator Pate: Thank you to the witnesses. My question is related but a bit tangential to the discussion that we’re having today. My interest is in knowing what response, if any, the Department of Justice has presented to things like the report of the Standing Senate Committee on Legal and Constitutional Affairs regarding delays in the justice system. It was tabled a few years ago. I’m curious as to whether any analysis has been made of the recommendations. If so, could they be shared with us?
Anna Dekker, Acting Director and General Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice Canada: I am not personally aware of any analysis. I am aware of the report, and I know it has been read. I’m not sure if the government had issued a public response to it or if this committee had requested that. I’m not personally aware of that, but we can certainly make inquiries.
Senator Pate: That would be great. I would be very interested in knowing the response of the department, in particular, to each of those recommendations.
The Chair: Senator Pate, I don’t think we asked. Let me confirm that. There was no response, but I’ll confirm that we asked.
Senator Pate: Perhaps I could move that we ask.
The Chair: Yes, there is a government response. For those who are interested, the clerk will send it to you.
Senator Pate: Perfect. Thank you.
Senator Simons: Jim Keegstra taught his hate in one classroom. Ernst Zundel made speeches, and I think he self-published a book, as I recall. Bill Whatcott spread his homophobia with hand-printed pamphlets. I think he actually had a Gestetner. He once handed me a pamphlet on the street in Edmonton. Their hate was violently toxic, but they had a very limited reach. To prosecute them as individuals at that time seemed possible.
Today, we have social media that weaponizes and virally disseminates hate and toxic messaging of all kinds. It is next to impossible to prosecute each individual hatemonger online. You would be there until the end of time.
My question is: How will this bill be used, if at all, to prosecute those who host hate? They might be the more concerning target than the individual person whose brain is curdled with loathing. Will you be able to use this law to prosecute platforms that promulgate hate? What will you be able to do, if anything, about hate that is coming from offshore into this country?
I know this is not the online harms legislation that has been much talked about, but I’m wondering if you can explain what the intersection would be between this legislation and the aerosolized hatred that is spewed on social media platforms of all kinds.
Ms. Hébert: Thank you, senator. My view is that this offence would only apply to individuals. I don’t think it would apply to hosts of online hate, for example, the Facebooks of the world, if I can call them that.
I do know the government is working on an online harm regulatory framework, which they have consulted on over the summer. The government has currently engaged an expert panel to come up with a plan to deal with online harms and to deal with the companies that host the materials. I think that is coming from the government at a later stage.
I am trying to recall the other part of your question.
Senator Simons: I asked about offshore. Will you be able to use this law to prosecute people who are spreading hate from outside our borders?
Ms. Hébert: In accordance with the Libman test, there has to be a nexus to Canada. I think there have been cases involving offences that have occurred, where there’s enough of a connection within Canada that they have been able to apply criminal charges for something that’s happening abroad. Again, I can’t speak to any specific example, but I do know that the Libman case is used. If the jurisdiction doesn’t exist by virtue of the Criminal Code, then they certainly can use the Libman test. The Libman test is where there’s a nexus between the victim or the act that has occurred and Canada.
Senator Simons: I just remain very, very concerned that it was one thing in the 1980s to prosecute an individual here and an individual there. At this point, the hate is so diffused that you could be prosecuting people from now until doomsday who are spreading Holocaust denialism far more efficiently than a Zundel or a Keegstra ever could.
Ms. Hébert: I understand your concern. The role of applying charges falls to the investigators, law enforcement authorities and prosecutors. They would have to deal with it on a case-by-case basis, depending on what is presented before them and what complaints might be brought forward by the public.
Senator Simons: Thank you very much.
Senator Dalphond: I have two questions, but they are on different topics. The first one will be for Mr. Newman. You are very patient. Thank you very much.
I understand from your answer to my question at the beginning of this panel and the further exchanges with Senator Cotter that there are two ways to read the Saskatchewan provisions in their constitutional document, that famous section 24. You explained that in French, but maybe I could ask you to repeat it in English. There are really two ways to see it. I suspect Senator Cotter has one view, and I’m inclined to have the other view. That may explain our difference of perspective about the autonomy of that clause versus referring to a federal statute. If the federal statute disappears, then the provincial obligation disappears. Maybe I misunderstood what you said.
Mr. Newman: No, that is basically what I said. If one reads section 24 of either The Saskatchewan Act, before it was repealed, or section 24 of The Alberta Act, as it still stands, it says in the English version:
The powers hereby granted to the said province shall be exercised subject to the provisions of section 16 of the contract set forth in the schedule to chapter 1 of the statutes of 1881, being an Act respecting the Canadian Pacific Railway Company.
So the two ways of reading that are that one goes to the statutes of 1881 to see what it says and to clause 16 — section 16, as it is referred to here — and one has one’s answer.
In other words, that has been incorporated by reference, and it is a static incorporation. It was incorporated as the clause stood in 1881.
The other possibility — and this may be in contention, in litigation, for all I know — is to read that in an ambulatory way. That is, the powers granted to the province should be exercised subject to the provisions of section 16 in the schedule to the statute as amended from time to time. And now there are these amending provisions that are being put forward.
Again, I’m not adjudicating this matter. I don’t want to prejudice views that might be put forward, but from a constitutional perspective, one can understand why Saskatchewan came forward and decided that they’d better get a bilateral constitutional amendment.
If Saskatchewan did it, then the question is begged, why wouldn’t Alberta want to do so? The counter-argument is, “Well, the rug is being pulled out from under the clause insofar as it is declared to be of no force or effect as of August 29, 1966.” But does that have to be read in a way that is consonant with the purpose behind section 24 of The Alberta Act?
Again, I don’t want to get in the situation of —
Senator Dalphond: No, but I understand there is some uncertainty, and you want to cover all angles.
Mr. Newman: Yes, I would say that’s fair.
Senator Dalphond: I think that’s also what you said about clause 176. It’s because of the Saskatchewan amendment that there might be some debate about the extent of potential liability of the federal Crown, and you want to cover that as well.
Thank you very much.
The Chair: Senator Cotter, your name was used. Did you want to respond or say anything further?
Senator Cotter: I didn’t think it was used in vain, so I’m not too troubled. It’s possible Senator Dalphond and I disagree, but we will sort our disagreements out without putting Mr. Newman in the middle of it. Thanks very much.
The Chair: I can assure you Mr. Newman is relieved. He doesn’t want to get in between the two of you.
Senator Cotter: He looks relieved.
Senator Dalphond: Two different people can have different visions, and one day we will see what happens, if necessary.
[Translation]
My question is for Ms. Hébert. It pertains to the new offence. The name of the offence is “Wilful promotion of antisemitism,” but if I understand correctly, as it is worded, the offence is narrower, despite the title. The mens rea refers to the notion that anti-Semitism is being wilfully promoted, and the actus reus refers to the condoning, denying or downplaying of the Holocaust. It’s an extremely narrow offence. If someone were to promote anti-Semitism by making some other sort of statement — for instance, that Jews use the World Health Organization to run the world — the statement would not be covered by the proposed offence. Isn’t that right?
Ms. Hébert: You’re right, senator.
Senator Dalphond: In that case, we’d have to fall back on subsection 319(2), would we not?
Ms. Hébert: Yes, absolutely. In the circumstances you just described, subsection 319(2) would have to be relied on in relation to hate propaganda against an identifiable group distinguished by religion.
Senator Dalphond: Thank you.
[English]
The Chair: I have a question that I know you won’t have the answer for now. I think maybe it’s a question for Ms. Dekker. Can you kindly tell me how many judges there are across our country and exactly how many of them are diverse? Where are they mostly? For example, how many diverse judges are there in B.C., Alberta, et cetera? I don’t expect you to tell me now. Can you please send it to the clerk?
Ms. Dekker, Ms. Hébert, Mr. Newman and Mr. Ezri, you have been extremely patient and worked with us through these three different issues. We thank you. You’re always cooperative. Mr. Newman, I know you didn’t mean that you don’t listen to us, but I couldn’t resist that, so thank you very much for being here. Thank you.
(The committee adjourned.)