THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 30, 2025
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:32 a.m. [ET] to examine and report on such issues as may arise from time to time relating to legal and constitutional matters generally.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. I declare open this meeting of the Senate Standing Committee on Legal and Constitutional Affairs. I’m David Arnot. I’m a senator from Saskatchewan, and I’m the chair of this committee.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne.
[English]
Senator Tannas: Scott Tannas, Alberta.
[Translation]
Senator Oudar: Manuelle Oudar.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory. I’m a guest here.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered, unreturned territory of the Anishinaabe Algonquin Nation.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Busson: My name’s Bev Busson, British Columbia.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
The Chair: Colleagues, before we turn to the main item on today’s agenda, I’d like to give you a brief update following yesterday’s meeting. The steering committee met yesterday, and we will take the committee’s decision to reinvite Ethical Capital Partners to appear under oath under advisement. We’ll be consulting with legal counsel, the committee clerk and the analysts on recommended next steps. As this extends the committee’s study of Bill S-209, the clause-by-clause consideration, which was originally planned for Wednesday, will be postponed until further notice.
In that regard, the clerk has spoken to Senator Pate — as I have too — and Senator Pate is available to start the study of Bill S-205 on Wednesday, November 5. There are two panels set for that day. Also, there are two panels suggested for the second day, which would be Thursday, November 6. If it’s the committee’s wish, we’ll commence that study accordingly.
Senator Simons: The meeting is not cancelled; it’s just a change in the witnesses, right?
The Chair: Clause by clause for Bill S-209 is, in fact, cancelled.
Senator Simons: No, but the meeting itself is not cancelled.
The Chair: The note will come out later today.
Senator Simons: I was reorganizing my schedule on the assumption that we weren’t meeting, but now I’ll “dis‑reorganize” it.
The Chair: That’s a good idea. We discussed this last night, and this is why I gave you this information this morning. We’re ready to go on to Bill S-205. That’s what I’m saying. You’ll receive notice of that shortly.
As chair, I was instructed to write a letter to the Minister of Justice concerning the meeting that was held last week regarding a bill that was presented in the other place. In discussions with the GRO, I have been advised that there was a miscommunication or misunderstanding, and there was no intention of supplanting or usurping the common practice of having a Senate briefing by the GRO, and perhaps the minister, on any bill they might come forward with. The idea was that this was an opportunity for senators or their staff who might be available to learn about a new bill being presented in the other place.
As we know, when bills are presented, they don’t usually come out of the House of Commons intact, and there are amendments, et cetera. I’d just like to assure you that there was no intention to supplant the usual practice.
Senator Batters: Thank you for letting us know about that. I wanted to make the point that the email from the minister did say, “Dear parliamentarians.” I’m not sure if the minister realizes that parliamentarians include senators, but I’m glad to hear they’ve recognized the error of their ways, and I look forward to receiving further notice about when they can brief us on this, because, as I mentioned at the committee last week, I also sent an email to the minister, cc’d the Senate government leader, and to this day still haven’t received a response, so I’m glad they responded to the committee.
The Chair: Colleagues, we’re meeting in public under our general order of reference to discuss the committee’s future business, namely, the consideration and selection of topics for special studies. I would like to once again thank the members for taking time to share their ideas and suggestions. Members have received a list of proposed studies circulated by the clerk, and for today’s purposes, I propose we briefly review each proposal in turn, followed by an open discussion on which study the committee would like to undertake first.
In that regard, I want to ensure that everyone is aware that there are six proposed studies. Senator Oudar has proposed a study. Did everyone receive a copy of that? I’ll be asking Senator Oudar to speak to her study as one of the six.
[Translation]
Senator Oudar: I will speak when you discuss your proposal regarding the Criminal Code, because my proposal would be to add a victim-centred perspective rather than conducting a separate study. I will speak to add to the various angles in your proposal so that we also examine the whole issue of victims, because the committee has heard a lot over the past year.
Thank you. I reserve my right to speak later. I withdraw my own proposal. Sorry for the confusion. I take responsibility for that.
[English]
The Chair: Is it the committee’s wish to proceed to discuss these proposed studies in the order they are presented?
Hon. Senators: Agreed.
The Chair: Okay, then I’ll speak to this study that I’m proposing.
You’ve seen the copy. In legal circles, this idea of modernizing and revising the Criminal Code has been well known and longstanding; it’s an acute situation. I was advised by one of the proposed witnesses Professor Kent Roach that he actually doesn’t ask his first-year criminal law students to read the Criminal Code; he actually tells them not to buy it. That’s an indication of the serious nature of the way the Criminal Code has grown. It has become convoluted, and many academics and practitioners have said that it’s a serious matter.
I’m not proposing the actual revision of the Criminal Code, of course. I’m just saying that the committee could have a number of witnesses come forward to discuss the serious nature of the problem and present methods in which it could be addressed.
There are four methods that might likely come out of the discussion: One is a recommendation that a royal commission be enacted; a second is a specific task force; a third could be a reference to the Council of Canadian Academics; and fourth — but not in any order of preference — there could be a recommendation that the Law Commission of Canada undertake such a study.
If such a study were to occur, it would be comprehensive and would take a significant amount of resources to fund it. It would take some time — probably at least one, two or three years, one would expect.
The purpose of what I was proposing is just to identify the issue and invite the Minister of Justice to address it by coming up with a mechanism to, in fact, revisit the Criminal Code and see that it is advised. I don’t have any other comments to make.
Senator Oudar wanted to speak to this, and I’m happy to let her advise us. She wants to ensure that one aspect — the study of the victims of crime — is included in such a study.
[Translation]
Senator Oudar: I completely agree with your proposal. I second it. It is in line with what you want to do. It is an angle that better covers what we have heard in committee over the past few months, namely that victims not only want to be better informed, but also want to have a different role in the judicial process. We will certainly also address the whole issue of sentencing, which victims want to see improved.
In terms of the justice system, we are now looking at innovative solutions. In addition to prison sentences, there are other options, including diversion from the justice system for certain minor offences. Victims are calling for alternative measures. We need to listen to representatives of Canadian associations that represent victims of crime.
[English]
The Chair: I fully agree with what Senator Oudar is saying, so perhaps we could amend the proposal with that idea in mind. Sentencing and diversion at the earliest opportunity out of the criminal justice system into other resources so that people don’t move into the criminal justice system is a very important point.
Senator Batters: Thank you, chair, for bringing this forward. It’s very important to do, and I appreciate the way you’ve set it out. If we were trying to actually suggest a series of revisions to the Criminal Code, that would take many more meetings than what you have proposed, but this is a very important way to get something that is critical for the criminal justice system in Canada rolling and provide some good evidence on that.
Before I make my next point, I want to thank Senator Oudar for bringing forward the victims’ part. That’s an important part of that. Too often, victims are forgotten in the criminal justice system, so it’s important to bring their perspectives into this.
Chair, were you saying that you also propose to have the Minister of Justice come to the study? I might have heard you incorrectly, because it didn’t say it in your proposal, but perhaps I don’t have the most recent version of your proposal in front of me today.
Senator Arnot: I don’t believe I proposed that the Minister of Justice appear. The Minister of Justice might be the recipient of the recommendations.
Senator Batters: Right. Okay, thank you.
Senator K. Wells: Chair, I certainly support the proposal and the importance of it.
Building on Senator Oudar’s comments, we also need a strong focus to hear from the communities that are disproportionately impacted by the Criminal Code. Racialized communities are heavily impacted. I note that the Indigenous community is listed, but more consultation would be required from that community as well as from the 2SLGBTQI+ community, as well. Those are a few that come to mind.
The Chair: Those are good ideas.
This proposal, if it’s accepted, could be amended to ensure that we include all the components the committee wants to see studied.
Senator Simons: I want to start with a technical question. I don’t know what the rules say, but it’s generally protocol that we have these discussions in camera. As a former journalist, I don’t object to not being in camera, but I wanted to ensure that we are doing this properly, because I’ve never been on a committee discussing future studies that wasn’t in camera. Perhaps the clerk can just clarify that.
The Chair: The steering committee discussed this, and the clerk has advised me in the past — and he just advised me again — that this procedure is allowed; we can have these discussions in public. If somebody wanted to move to have it in camera, I think we would entertain that, if there’s a reason for it.
Senator Simons: I wanted to clarify that so that anybody else who might have misunderstood that we were in camera is aware that we are not.
At the end of many of our observations, we have said that the Criminal Code is in desperate need of a review. We’re not going to review the Criminal Code, so we’re going to do a study about why there should be a study. I’m not entirely sure about this proposal. It would be an enormous undertaking, and at the end of the day, we would be advising them to do what we have always advised them to do.
I’m keeping an open mind about this, but I’d like to hear all the proposals before we decide upon any one of them.
The Chair: Just to clarify, the nub of the proposal is to bring it to the attention of the public and the Minister of Justice that something needs to be done. It’s an acute issue. There may be some suggestions as to how it be accomplished, but that’s the extent of what I’m proposing.
Senator Clement: I take the point made by Senator Simons. I understand that, but I’m quite supportive of this idea of taking steps toward the big thing, and the big thing could be taken on, as you said, Mr. Chair, by a royal commission or law reform, but this conversation can start happening here.
I’m going to thank Senator Oudar for bringing up the victim component. I want to talk about persons with vulnerabilities as well. That’s an additional piece. When someone is a victim, there are additional vulnerabilities for certain groups, and I want to comment, Mr. Chair, on your list of witnesses. I like everyone on that list, but it certainly doesn’t represent the communities that are overrepresented in the prisons.
I know that you’re listening and taking this into consideration, but we’ve heard very compelling testimony from the Canadian Association of Black Lawyers. Theresa Donkor, in particular, is a criminal defence lawyer who speaks very eloquently about Black folks being overrepresented and what that means from beginning to end.
We have the Black Justice Strategy, which has now been put in place, which has 119 recommendations. In the last 50 years, our thinking has changed and is now different. We didn’t talk about systemic racism 50 years ago, but we do now, and we’re in an age of reckoning. What really stands out to me is there isn’t a sufficient number of women on that list either.
Maybe you’re willing to look at that list and go a bit further with some of those points. Senator Wells raises those issues as well, and I fully endorse how he described bringing in different communities and representation.
The Chair: I would just respond by saying we’ll take note of all of this. I want to get a consensus and ensure it’s comprehensive. I am in complete agreement with everything that has been said concerning those issues — including persons with vulnerabilities, for example — so the proposal might be amended with all these ideas before we move forward on it.
Senator Pate: As the person who brings this observation forward with almost every report, I want to see a review of the Criminal Code. I endorse the previous comments. I would love to see something very short and very pointed to include things like the most recent reviews. We all hope the law commission would take this on, something that actually propels forward the potential for a body like the law commission or a royal commission to be appointed.
The fact that the last time these were looked at, our study Delaying Justice is Denying Justice really pushed for this kind of a review. It wasn’t a specific recommendation, but that was part of the discussion. That was almost 10 years ago now, and the other is the Truth and Reconciliation Commission of Canada, or TRC, and the Missing and murdered Indigenous women, girls and 2SLGBTQI+ people, or MMIWG, and in addition to the comments that have been made, much of the scholarship now is talking about the need to build up community. The more we rely on criminal law and imprisonment to address these issues, the more we are depleting the resources available in community — economic, social, health — something that is the big picture. I would actually not go into the granular details in the ways the suggested witnesses you have would take us, but actually keep to the big picture. What did the TRC and the MMIWG say and why were these approaches taken? Why is it important to look at this in the context now of what is happening in Canada and the world?
It could be a great way to propel the government to do the review of the Criminal Code that we’ve long been saying needs to happen — not just the Criminal Code, but also the role of criminal law in this. That speaks to victims, vulnerable groups and the fact that our prisons are increasingly overloaded with the most vulnerable and not those who cause the greatest harm.
[Translation]
Senator Saint-Germain: Like all of you, I have looked at all of the proposals. I, too, would prioritize this one, but we could make some additions, such as those made by Senator Oudar concerning victims. The options of criminalization and incarceration address several concerns, particularly those raised by Senator Pate and Senator Clement.
Senator Batters talks about court delays, which is relevant and could also be addressed within the context of the efficiency of the justice system. We had already discussed this ourselves with Senator Clement and Senator Pate.
Senator Dhillon’s first proposal regarding amendments to the Criminal Code concerning organized crime and law enforcement could also be covered. While remaining ambitious but realistic, there is room to broaden the scope a little.
I fully agree with Senator Clement’s comments regarding witnesses. I would add a concern for Correctional Service Canada. I believe this is important. I would also add representatives of criminal lawyers, to ensure balance, as well as representatives of victims.
We have an opportunity to give the Department of Justice a work plan and a road map. I think it’s important that representatives from the Ministry of Justice be there. I agree that it’s different for the minister. Eventually, if we could convince the judges’ association to at least send us a brief, that could be just as relevant.
This is a project that brings together several concerns around this table. If we can amend it in the way our colleagues would like, we would have a great project. It would also enable us, as a committee, to produce a report that will have a significant impact on future developments, both for the public and for public services.
Thank you.
[English]
Senator Batters: I have a question about something that came through in the translation as I was listening, and I want to ensure I understood you, Senator Saint-Germain. It came through that you wanted not only the Department of Justice to be a part of this, which I agree with, but also the ministries?
Senator Saint-Germain: No.
Senator Batters: Okay, that’s how it came through.
Senator Saint-Germain: The Department of Justice but not the minister. I agree with the point that you made. I believe it’s really important to have the department, but the minister is different.
Senator Batters: I see. I thought you were perhaps making reference to provincial departments of justice.
Senator Saint-Germain: No.
Senator Busson: I’d like to make these comments again on behalf of Senator Dhillon.
We discussed my attending this meeting on his behalf, and given that the Controlled Drugs and Substances Act is actually another handbook of criminal behaviour that is often tied to the Criminal Code with regard to sentencing and all the other parts, I would request this: As the study is undertaken, can the Controlled Drugs and Substances Acts be included as part of the mandate for this study?
The Chair: Certainly, that’s a good idea.
I’m probably going to suggest that there is a commonality of the importance, and we want to redraft it with the help of the analyst to ensure that all the comments have been made and the issues are presented in a concise, logical and compelling fashion. The arguments that have been put forward to amend this are compelling, so that’s fine.
Senator Prosper: I agree with the previous comments about looking to expand the scope a bit, and within the context of that, it might be helpful to get perspectives from not just lawyers, Crown counsel or academics but people dealing with the Criminal Code day to day. I’m thinking of police services and agencies, the members of which have certain perspectives of the day-to-day functions, complexities and problems in their interactions. We could expand the scope in that way.
There is another point that relates to the product of this: Are we talking about just shifting things around and making it more cohesive, short of amending the Criminal Code? Is that it? Okay. I wonder about the extensiveness of change. Are we inevitably moving in the direction of amending the Criminal Code? We can have a discussion about that, or maybe that is not necessary.
Senator Pate: I confess I am now confused. I was suggesting we do a high-level view that takes people like Justice McLachlin and people who have looked at this from the perspective of looking across the country and jurisdictions. If we wanted to get police, our retiring colleague Gwen Boniface has spoken about many of these issues.
I was thinking it would be a shorter but higher-level process that would be to try to kickstart this idea of a Criminal Code review. We cannot do a Criminal Code review here — that would take years — but it would be to push the government to do it. I would say, yes, bring the ministers in and have a panel of the ministers who are responsible for this area. What is their plan? Do they have a plan? If they don’t, let’s urge them to develop one.
I am confused now. It sounded like we were getting into more granular detail as opposed to a broader-based push for this kind of review to happen.
Senator Simons: I agree with Senator Pate. I want to be mindful of the fact that we are going to get that bail bill and the hate speech bill very soon. We may get parts of Bill C-12. We need to be mindful that we don’t bite off more than we can chew. It will be frustrating for the analysts, witnesses and, indeed, senators. We will be able to do one panel, and then it will be a month of the bail bill and then a month of the hate speech bill.
Right now, we are in this weird interregnum where we have no government legislation, but we have to be mindful of the fact that this is an anomalous situation. Big bills are headed for us, and they will be controversial bills that will require a lot of study and debate.
Senator Batters: First, that is why this study could be good. It is the kind of thing that can be put down and picked up as needed. Having sat on this committee for twelve and a half years — since the first few months I was in the Senate — we rarely have time for any kind of study at this committee, so this is precious time we do have now. The benefit of this type of a study is that it can be picked up and put down.
Regarding the police, that is a valuable perspective for this. It does not have to be a granular situation at all. In fact, the Canadian Police Association could provide excellent evidence about what exactly they see day to day. They have consultations with their members from across the country — thousands of members — and they can tell us what the high-level things are that could be improved. Given they are the ones who are typically doing the charging, that is a valuable perspective.
It doesn’t have to be a granular thing. When we did the court delay study, that was an 18-month study. It was also an unusual situation, but we had a brand new government when the Liberal government first took over, and they did not have any government legislation for us for quite a while.
In terms of the bills that were just brought up, the House of Commons is dealing with all of those right now. Maybe one or two of them might come to us relatively soon, but we do not know. Right now, we do not have anything.
Senator Tannas: Returning to what was raised by Senator Pate, chair, in your natural inclination to build consensus, we may wind up losing the plot.
Beyond a paragraph and an observation we have done over and over again that nobody reads, we want to build a case. That involves finding examples. What are the consequences currently? These inconsistencies must mean that people are getting off on a technicality. I assume that is the way you might think about it. We should focus on that. That is a study that we could pick up and drop.
We will not have people’s hopes tied up with something. We should triage out anything where somebody is coming to tell us how the law needs to change, because it isn’t fair or it isn’t this or that. Just do this study and put a reasoned, straightforward, clear, uncluttered report out that will force Justice Canada to consider what to do. If we have the solution — here is who ought to study it and undertake the work — then that is powerful.
We should resist trying to boil the ocean and solve everybody’s problems.
[Translation]
Senator Saint-Germain: When we look at the key issues for witnesses, we say this:
[English]
What are the most pressing deficiencies in the Criminal Code? Which provisions cause recurring legal or constitutional issues?
[Translation]
We can then present both the principles and the issues and ask the government to take action within a reasonable time frame. That is why, if we focus solely on important principles, I fear that this study will not be binding on the government or convincing to the general public. We can find a way to be both comprehensive and pragmatic, but also sufficiently prescriptive to ensure that the government can truly follow through.
In this sense, the additional aspects and witnesses will help us if we focus our questions on the conclusion we want to reach: What do you think should be modernized and changed in the Criminal Code? That is the key question we should ask all witnesses. If we focus our work in this way, we will achieve a pragmatic result within a reasonable time frame. I agree that this is ambitious. We have an opportunity to produce an essential report that no one other than this committee can produce, and that should have been done 50 years ago, rather than postponing it and making piecemeal amendments to the Criminal Code.
We have an opportunity to make a difference.
[English]
Senator Busson: I commend Senator Prosper for getting off the mark before I did, but I totally agree about having some representation from police services, not just the Canadian Police Association, or CPA, but the National Police Federation, or NPF, the RCMP and perhaps even the Canadian Association of Chiefs of Police, or CACP, especially if one of our focuses is going to be around victims. I do not believe that anyone understands the context of victims like the police.
The Chair: Is there any further discussion on this study? We do have five or four more to discuss.
The next one is a review and update of the report on court delays. Senator Batters and Senator Pate have put that forward, in effect.
Senator Batters: Yes. I did not prepare anything. This would likely be a longer study, as well. It is certainly not as long as the original one. That one we reported, I believe, in the summer of 2017. It was an 18-month study, and for quite a considerable period of time, we heard from many witnesses here. It was a rare time in which our committee did some travelling within Canada to a number of these jurisdictions. We wanted to find the best practices that a number of these jurisdictions across Canada were using to combat the serious problem of court delays.
At the time we were doing the study, the Jordan decision of the Supreme Court had come out, imposing serious consequences for lengthy court delays, and if the delay was lengthy enough, it could lead to serious criminal charges being stayed and people who might otherwise be convicted going free. That is a serious consequence.
We did a comprehensive study. As has been stated a number of times since we did that, it would be a great time to do a review and update of that. It wouldn’t be the lengthy period of time we took before, but it could be a valuable exercise.
It would not just be a few meetings. It would be three to four months with sitting weeks taken into account. It could be a valuable thing. That study is still valuable, but it would be great to see what advice was taken over the years and what advice the federal government should still continue to be taking from us and from all these jurisdictions across Canada that are still dealing with this court delay problem.
The Chair: Are there any further questions or comments on this proposal for a review and update on court delays?
Senator Pate: Yes. I pared down my suggestions to just one, but in meeting with ISG colleagues, I suggested this as one, particularly given the most recent decision I am still wading through of the Ontario Superior Court of Justice and Whitlock, which is related to the abuses in Maplehurst and the resulting withdrawal of many charges against people who were being remanded in custody.
Yes, I would suggest an update in terms of what has happened with the recommendations. I was looking through it and it was only four recommendations. Virtually none of them have been implemented. It might be useful to talk about that.
Like Senator Batters, actually, I was a witness for that. Then I was on the committee when the report came out.
Senator Simons: That’s how long the study went on.
Senator Pate: That’s how long the study went on. That’s right.
The Chair: Are there any other comments?
I had a discussion with the analysts and asked them to find out the time for charge to trial in the U.K., which is roughly 11 months. It is starkly different than in Canada. This will have an implication if there is a review of a new law on bail reform and sentencing. There are linkages to it.
Senator Pate: The other thing I would add is that in the report we talked about the fact that there was a need for a Criminal Code review. It wasn’t a recommendation, but it was discussed. It may be a way to combine the two, to say that justice delayed is denied and then the need for a broader review.
Senator Batters: When we were briefly having that discussion about the U.K., my recollection is that they have some significant restrictions, though. There are certain very serious crimes — I believe murder and those types of things — where the court delay argument cannot be used as a way of staying their charges. I am not sure if the analysts have had an opportunity to look into that. I know we were briefly chatting about that. I’m not sure if my recollection of that is correct or what the particulars might be.
The Chair: I won’t put them on the spot now. It is an issue; how we approach it is another thing.
Are there any other comments on that study?
The third study proposed is the hearing from the Chief Electoral Officer of Canada.
Senator Batters: Yes. This is one I have mentioned a few times throughout the last few years at this committee. It used to be a regular occurrence that, soon after an election, we would have the Chief Electoral Officer, sometimes the Commissioner of Canada Elections also, come to our committee. They go to the House of Commons committee — the Standing Committee on Procedure and House Affairs, or PROC, is the committee at the House of Commons they go to and testify in front of — where the Chief Electoral Officer presents his report about the election that has relatively recently transpired.
Sometimes there is a need to have a lengthier study or discussion with them, for example, after the 2011 election. But that was one we were looking at for some time later because some issues had arisen in that election dealing with the potential for future foreign interference, which, as we have now seen, has come home to roost, unfortunately, in Canadian elections to some degree.
More time was taken, but, in general, it is usually a shorter thing where the Chief Electoral Officer comes, we have the ability to ask questions of the Commissioner of Canada Elections. We had this after the 2015 election; we did it then as well. We did not do it for the 2019 or the 2021 election and now we are onto the 2025 election.
It was a good practice. Often there could be important aspects that were dealt with in some detail, or at least raised, to have public awareness and have Parliament and the government get to know about what could be some serious issues to potentially have Canada Elections Act amendments or other types of legislative changes made.
My sense of this is that it would be a relatively quick study, perhaps a couple of meetings. Then, if something quite earth-shattering came out, we could decide to have something more. For now, it is a good practice to have. We are the committee that has done it in the past and is best placed to do it.
[Translation]
Senator Saint-Germain: After an election, the Chief Electoral Officer’s only obligation is to report to the House of Commons, not to the Senate. This is very clear in the act.
I understand that this may have been of interest prior to 2015. I believe that, in a less partisan Senate, it could be of some interest, but it is certainly not as important as the other studies that have been mentioned and for which the committee can make a difference.
As for foreign interference, there is already the National Security and Intelligence Committee of Parliamentarians. This can be studied in another way.
I have always understood from my colleagues in the Conservative caucus that it is important that all matters related to the Canada Elections Act, particularly elections, be dealt with by the House of Commons, which is the elected chamber, and not by the Senate.
Personally, if we had time left over after we finished studies more related to this committee’s mandates, it might be interesting to have that conversation. However, I do not believe that it should be one of this committee’s priorities.
[English]
Senator Batters: First, when there are any revisions to the Canada Elections Act, they usually start in the House of Commons from the government with a comprehensive package of any necessary legislative changes, but, of course, it also has to get passed in the Senate. It is helpful for us to see these types of things.
Perhaps, as you are referring to, yes, the general state of being is that the Chief Electoral Officer reports to the House of Commons, as would be normal. However, the frequent and general practice of the Standing Senate Committee on Legal and Constitutional Affairs is that the Chief Electoral Officer would come here for a short time to present his report and provide us with the ability to ask questions and find out key areas that might have been an important part of the election.
One of the things I could foresee, given this past election, is long-form ballots that became quite a thing in the last election. There could be something that results from that in a future legislative package. It is a good way to find out about emerging issues that came out of the election we had.
Simply the fact that the Senate might be less partisan than the House of Commons does not mean that it is non-partisan. We have an important role to play; in fact, we have the ability to have a longer-term view. All of us in this chamber, no matter who appointed us, are appointed. Many senators have a significant political background and have an interesting perspective on that.
We have security of tenure, so, unlike the leader, we aren’t required to have our nomination papers signed or something like that in the next election. We have the ability to provide good guidance, which is always valued by our House of Commons colleagues.
Also, regarding the National Security and Intelligence Committee of Parliamentarians, or NSICOP, all its members are appointed by the Prime Minister of Canada. Their reports are generally — there are occasions where they have some reports that have some aspects that are public — private and unable to be reviewed by the public, so this is a good way to have some transparency. For one or two meetings, it is a valuable exercise that our committee should resume.
[Translation]
Senator Saint-Germain: I would simply like to respond very quickly.
I trust the House of elected representatives to consider these issues. I have a great deal of respect for those who, regardless of their party, run for Parliament knowing full well that it is very difficult.
It is not insignificant that the Canada Elections Act refers not to a report by the Chief Electoral Officer to Parliament, but to the House of Commons.
In this context, I repeat: As far as I am concerned, this study should not take precedence over other much more important studies that the elected members of the House of Commons do not have time to do. This committee, because of its expertise, should have the time and perspective to enlighten the House of Commons and the government.
I maintain that this is not opposition to this project, but in our order of priority, it should not be a priority.
[English]
Senator Clement: I take the points made by Senator Saint-Germain. Of course, this needs to be studied in the place of the elected. Foreign interference is a specific issue that needs its own special attention.
I will endorse the comments made by Senator Batters that any opportunity we can take to talk about elections is one we should not miss. For full disclosure, I have never met an election I didn’t love. I have run for office many times, mostly municipally. I deplore the fact that we are getting farther and farther away from the importance of elections and the space it should take up in conversations about civic responsibility.
If the Senate pays attention to it, I am not necessarily going to have the same interests as Senator Batters on this; this year, I published a report on what elections looked like within the prison context. That may lead to thinking about reforming that legislation. I engaged well with Elections Canada.
There is a space for a short study on this, and I fully endorse the comments made by Senator Batters to support that.
Senator Simons: I wish to clarify whether we need a study or if we can just have the elections officials come for one round of testimony. I was intrigued to discover that used to be the formal practice. I do not know if Senator Batters can tell us when that stopped, because it seems like a practice that would have value.
I do not know that it warrants a whole study, but maybe a report from the Chief Electoral Officer would be helpful because of all of the issues we have talked about, including the long ballot and the intimidation of people at polling stations. We have seen what has happened in the democracy south of us. Getting a “checkup call” from the Chief Electoral Officer would have value. I do not know if that requires a whole study; it could just be one afternoon of testimony.
Senator Batters: It is termed a “study,” but it is not necessarily as comprehensive as that. In the past, there were times when things did get into lengthier situations because concerning things were heard about foreign interference. Therefore, our committee decided to have it go on further.
However, there have also been times when it was one or maybe two meetings, mainly with the Chief Electoral Officer and the Commissioner of Canada Elections, who are responsible for dealing with Elections-Act-related offences or investigations.
So yes, it absolutely could be one meeting to see how that is. It does not necessarily need to be termed a “study.”
As to when this practice stopped, my recollection is that we certainly did it after the 2011 election — that was the time frame when I was here — and we did it after the 2015 election. Then we did not do it for the 2019 election or 2021 election. I brought that up many times over the course of this committee — it has been one of my frequent topics — saying that we should do it. We have not done it. Now, we have had another election, and it is important to do it relatively soon so we are not in the situation where it is so long ago that it is not as relevant.
Senator Simons: At a time when there are right-of-centre disinformation campaigns trying to convince people in general that elections are not free and fair, it would be good to put it on the record that, hiccups and bumps notwithstanding, we have some of the most secure election protocols in the world.
I would endorse the idea of having the Chief Electoral Officer come and testify. I just do not think that it needs to be a whole deal. We do not want to do an investigation into foreign interference; that is being done in other quarters.
The Chair: As a point of clarification, we are talking about special studies, which require us to go to the Senate as a whole to obtain authority to proceed.
[Translation]
Senator Miville-Dechêne: Very briefly, I would just like to echo what Senator Clement and Senator Simons said.
I believe that the issue of elections falls squarely within the Senate’s mandate. There is no reason why we cannot study elections because we are not elected. The House of Commons has a lot of work to do. A brief study would be very interesting.
[English]
The Chair: Are there any other comments on this?
Senator Prosper: Briefly, I see value in delving into this subject.
The Chair: We will move to the next study proposed, which is the review of Bill C-83, with respect to solitary confinement in federal prisons. It is closely connected to Bill S-205.
Senator Pate: I do not know — maybe it was just me — but I have received a number of requests over the summer and past year from groups wanting to see a review of Bill C-83.
The review was due in 2024, so it is over a year overdue. I saw Senator Dhillon’s list — thanks to the Library of Parliament for producing that. I’m not averse to us doing other reviews, as well, but this was one we were requested to look at. It is one to which the Senate made amendments that the government rejected, and a part of that rejection was this notion that we do a five-year review. We now have a situation where there is virtually no oversight by the government of what has happened with Bill C-83, now that the ministerial advisory committee is done.
I don’t think it needs to be a long piece. In fact, as I have said to Senator Dhillon, I would support the others as well. We can just basically have the folks come and report what they’ve done and where they are going from here.
Senator Simons: I have to admit, I shouldn’t be this naive after seven years in the Senate, but I was duly shocked when I saw the list that Senator Dhillon and the Library of Parliament prepared for us. What is the point of putting in the legislation that there must be a review in five years if we don’t do the review?
I’m sure Senator Batters has the history of this, as the senior member of this committee, but it seems to me that if it says that the Senate should review it after five years, and we haven’t reviewed it in ten years, maybe that should be a priority.
Senator Batters: I was also shocked, actually, and when I initially saw the list, I assumed that it had to be the government who initiated these types of studies, and there are some like that. But this list — and I had it confirmed three times — that Senator Dhillon proposed, which is very helpful and welcome, is a list that our committee can initiate our own studies on.
I’m sure part of the situation has been that we’ve so rarely had time to do any kind of study at this committee, because we’ve been inundated with not only government bills but many private member’s bills and senator’s public bills, so we’ve been inundated with legislation and not had time for studies.
This is a valuable exercise, and I support this one about Bill C-83, especially if it can be done in quite a short, special study. That could be very valuable.
Senator Pate: Sadly, I wasn’t surprised to see that. When the Corrections and Conditional Release Act was brought in, it was one of the first ones I saw with a five-year review, and it took us almost five years to get the five-year review, advocating from outside. That’s when we learned that they aren’t initiated by the government but have to be initiated by either the House or a Senate committee.
Senator K. Wells: First, I certainly support the proposal from Senator Pate, as it is my understanding as well. The issue of confinement disproportionately impacts trans people who are incarcerated, and it would be good to hear from those experiences. Like Senator Pate, I’ve received many emails, questions and concerns on that particular issue.
On the broader issue related to Senator Dhillon’s proposal, if these reviews are within our mandate, they should definitely be incorporated into a longer-term work plan.
Being new to the committee as well, it definitely surprised me, but we also have a responsibility to start with these reviews before we take on other studies if they’re so overdue and there’s an expectation that this work would fall to this particular committee, should they choose to do it.
The Chair: Are there any other comments on that?
Senator Prosper: I would echo what Senator Wells just mentioned. This one should be at the top, given that it should have been done. It’s there in the statute, and, obviously, it hasn’t been completed.
Senator Clement: I want to be on the record as agreeing with those last comments from Senator Prosper.
The Chair: Then we’ll move to Senator Dhillon’s proposal on statutory reviews.
Senator Tannas: There are eight that need to be done. What if we said that we’re going to do two days on every one? That would be 16 sitting days, and we’d have it all done.
Why wouldn’t we also let the House of Commons Standing Committee on Justice and Legal Affairs know what we’re intending in case they want to pick off one or two and lighten our load?
We could do something where we can have a small interim report and also fulfill the obligation to review but not get dragged down a rabbit hole. I worry that, for each one of these, potentially we could wind up in a lengthy discussion. Is that a way to deal with it, where we just say that we’re going to do it in two meetings, so we had better obtain really good witnesses that will stick to exactly what it is and the intention of the review? We could obtain that testimony, regurgitate it, and it’s done.
We should treat this like legislation. This is legislation, so arguably it has the same priority as other pieces of legislation.
Senator Saint-Germain: It is our responsibility to initiate the review; I have it there. I am on the first one, the Corrections and Conditional Release Act and another Act:
At the start of the fifth year after the day on which this section comes into force, a comprehensive review of the provisions enacted by this Act must be undertaken by the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.
It’s not up to the government; it’s up to this chamber or both chambers of this Parliament.
Unfortunately, given the number of non-government bills that we have, we cannot give priority to these reviews that are so important, but it is our responsibility to initiate.
Senator K. Wells: I would certainly support what Senator Tannas has stated on tightly focused reviews. I’m not sure, but maybe our committees can make as much use of the opportunity to submit written statements and testimony as well and strongly encouraging that, and then refining — even from receiving that written testimony — whom we want to call for further clarification as well.
There are different ways that we could approach the tightening of, and working our way through, these statutory requirements.
[Translation]
Senator Oudar: I agree with everything that has been discussed here. We have this responsibility.
However, I am surprised, because there are precedents in Quebec legislation. I have spent a large part of my life working on legislation, and we call it a five-year report. However, this is not the responsibility of parliamentarians or the National Assembly. I am surprised by the way the wording is drafted, because it places a great responsibility on the shoulders of the Senate. It is up to the government to present its five-year report, to say what has happened, whether there have been several offences, or whatever the case may be, and to provide the data, statistics, figures and complaints. However, we do not have this information.
For the future, we will see what happens with the bills that will be examined. However, I am going to suggest wording that will be consistent with the body of legislation that I am familiar with in Quebec. I suggest that now that it has been drafted, it should be applied.
For each of the topics, perhaps you should first ask the government to submit a report to you, and then you can make recommendations on what worked and what didn’t. We could have a list of pre-written questions that would be sent in each case to the relevant minister. Civil servants would then come and produce a written report.
In Quebec, this report is public. It is submitted to parliamentarians who question and suggest, based on facts, statistics and the report, whether there should be recommendations in the law thereafter.
I think one solution would be for the clerk or the committee to call on each of the departments, proposing four or five key questions that would allow us to have a more serious or justified examination of the facts that will be submitted to us. I don’t know what you think. I submit the proposal for discussion.
[English]
Senator Clement: This is a conversation that should continue. What a great Library of Parliament report. Thank you, and thanks to Senator Dhillon for taking that on and ensuring we’re looking at this. Thank you, Senator Pate, for reminding us of our responsibility in your request to have us look at Bill C-83.
I agree with the comments made by Senators Wells and Oudar. The conversation needs to continue so we can get a handle on it. Thank you, Senator Tannas.
We’re going to need an approach. This is the committee that is the most buffeted by a legislative agenda. We’re not feeling it now, and we’re feeling kind of loose, but tick tock. That’s ending soon, but this conversation needs to continue so that we can put on our “big-person pants” and say that we have an organized approach to this particular responsibility.
Senator Tannas: We should take a lesson from this too. These reviews have been handed out recently as consolation prizes for not getting amendments. It does exist; there are statutory reviews done by government. The Bank Act comes to mind. In such cases, the government puts all the machinery behind it. So we should look askance at these and note that we’ve lost. Do we really need to beat ourselves over the head five years later on this? If we do, then we should put more teeth into those amendments so that maybe it’s the House of Commons that has to do the review or whatever.
There’s another lesson here that we shouldn’t lose sight of, and this committee, with all of us, should be on the lookout.
Senator Prosper: I agree with Senators Oudar and Clement with respect to trying to figure out a system or an approach that aligns with the basic mechanics of a statutory review, while keeping in mind what Senator Tannas mentioned — that when we get engaged, there’s some work previously done. There’s a product coming toward us, so we can be more focused and deliberate in our discussions. I’m presuming that is going to be the review of record, isn’t it? So we need to be conscious about the machinery and how it’s typically undertaken — certainly, notice, questions and being cognizant of that process.
Senator Batters: I have one more comment about this. Yes, thank you, Senator Tannas, for bringing up how often these reviews are ordered.
Let’s also remember that there are a number of these reviews that are actually supposed to be government-initiated. Maybe the reason we’re so surprised about these is because we thought there were more of them that were government-initiated, but that doesn’t excuse the fact that there are many of them currently outstanding, and have been for many years, that are actually government-initiated. They don’t seem to be doing anything on them, either, because we haven’t seen them here, and we haven’t seen anyone respond to us, prompting us to get this review going and asking us whether our committee can handle this.
The Chair: Are there any further comments?
How do you want to handle this? Do you want the steering committee to consider all of the comments and then come back with some action? Do you want to do a poll of the studies proposed?
Senator Tannas: Having heard all of us, I’d be comfortable having steering come back with an order of priority on these.
The Chair: Do you mean a suggested order and then confirmation by the committee? Does that sound reasonable, everyone?
Senator Clement: Yes, then we can debate a work plan.
The Chair: All right. I see there is nothing else to raise right now.
(The committee adjourned.)