Honourable senators, I am now prepared to hear further new arguments in relation to the point of order raised by Senator Sinclair on February 6 concerning the possible application of the sub judice convention to Motion No. 18 moved by Senator Boisvenu.

I want to repeat, though, honourable senators, as I said yesterday, I will only entertain matters that are new to the debate.

Mr. Speaker, honourable senators, I would like to thank the His Honour for giving me the opportunity to explain and clarify the motion I moved in this chamber on February 6, 2020.

With all due respect to the Honourable Senator Sinclair, I will elaborate on the points I already made, and I hope that will clarify why I want the Standing Senate Committee on National Security and Defence to do this study.

My motion calls for the Standing Senate Committee on National Security and Defence to be authorized to examine the decision-making rules and mechanisms of the correctional system and the Parole Board of Canada in order to identify shortcomings and suggest ways to fix them.

Again, I want to make it clear here that the purpose of my motion is not to investigate a case currently before the courts but to take a close look at the training board members and correctional officers get and the programs they administer. Ultimately, I hope to make recommendations that will provide our correctional system with better tools so as to avoid such tragedies in the future.

My request is based on Report 6 of the Auditor General’s 2018 reports, which covers community supervision, and on the fact that the federal government is responsible for the Correctional Service of Canada and the Parole Board.

I would like to quote a passage in the report about the Auditor General’s findings regarding supervision of offenders:

We found that parole officers at Correctional Service Canada did not always meet with offenders as often as needed to manage their risk to society.

This point is crucial, because the observations noted by the Auditor General are consistent with what led to Marylène Levesque’s murder. It is therefore urgent that we take a closer look at what is happening in terms of the programs offered and the supervised release of offenders when they reintegrate into the community. I’m not in any way trying to point fingers or blame the leadership at either organization, since I know that Parole Board members have a very difficult job, one that requires considerable judgment and a great deal of experience.

At the same time, however, I hope we can take a closer look at this issue, in order to provide those members with better tools to properly do their job, which is to protect Canadians.

I am also mindful of the press release issued on February 10, 2020, by the Union of Safety and Justice Employees. The union’s statement on the Gallese case states the following:

In recent years, there has been an increasing emphasis on transitioning offenders quickly from federal prisons to the community. This is only appropriate if the community has sufficient resources to support the safe reintegration of offenders — which is frequently not the case. Parole officer caseloads are already very high in federal prisons and in the community which limits the opportunity for parole officers to directly interact with and understand the mindset and risk that some offenders may pose.

Honourable senators, the union is right to be concerned about public safety. Risk assessment has to be the cornerstone of the training that officers and board members undergo. In 2015, the average number of cases a board member had to review every day was three.

In 2018, they have to review eight cases a day. Add to that heavy caseload a record number of criminals being released in the past few years, the woefully waning skills of board members who have to grant these paroles, and the dwindling resources to ensure support in the community. This situation is explosive and could result in more victims. That, honourable senators, is what this chamber should be worried about.

The elements highlighted by the union confirm the findings of the Auditor General’s Report 6. This is another key point that justifies the need for the Standing Senate Committee on National Security and Defence to undertake the study that I have requested.

I’m not trying in any way to obstruct or disrupt the judicial process in the Gallese case. I will repeat that I’m not asking for a study of the circumstances of the death of Marylène Levesque or of the criminal aspect of the Gallese case. I’m letting the judicial system do its job because I’m mindful of the separation of powers.

There’s another important aspect that I’d like to highlight. The other place unanimously adopted the motion moved by Pierre Paul-Hus on February 5, 2020. This motion calls on the House of Commons to, and I quote:

(b) instruct the Standing Committee on Public Safety and National Security to conduct hearings into this matter . . . .

This motion was adopted unanimously by the other place and by the Prime Minister and the Minister of Justice himself.

In my view, the other place considered that freedom of speech was necessary in this matter and that it didn’t violate the rights of the individual on trial. Honourable senators, I recognize that the wording of a motion, as precise as it may be, can be improved.

If that is the reason for Senator Sinclair’s point of order, I’m completely open to the idea working with him to see what corrections we could make.

Honourable senators, I hope that my arguments have convinced this chamber to hold a debate and a vote on this motion based on the principle of freedom of speech in this chamber and the safety of vulnerable women in Canada. Thank you.

Honourable senators, since it was an issue that I raised and I didn’t make much of a submission at the time, and Senator Boisvenu only replied with a less fulsome submission at that time as well, I have taken the opportunity to prepare some comments in relation to the onus that rests upon me. I recognize that I have the onus to justify the point of order and to, in effect, prevent the motion from going ahead.

Let me begin by indicating that, as I understood it in looking at the motion again, Senator Boisvenu’s motion proposes that a study be conducted by the committee involved in relation to the tragic death of a young woman in Quebec City, and specifically the role that the correctional system and the Parole Board of Canada may have played in the matter of the release of the person who was accused of that.

I raise the point of order with regard to the sub judice convention surrounding the tragic event because there is currently a charge of first-degree murder pending against that named individual who is the subject of the Parole Board’s decision.

My point of order concerns whether Senator Boisvenu’s motion is out of order as this matter is currently before the courts, meaning the sub judice convention ought to apply in order to avoid prejudicing proceedings with this particular parliamentary process.

Because we have an opportunity today to make fuller submissions on the matter, I want to add a few points that I think may be helpful.

In the Companion to the Rules of the Senate of Canada at page 76, references to the Senate journals of May 5, 2009, state:

The general practice in Parliament has been to avoid discussing matters or proceedings currently before the courts or quasi-judicial inquiries. This is referred to as a sub judice convention.

While the convention has not been codified, procedural literature indicates that, although not binding, parliamentarians should be cautious about making reference to the proceedings, evidence, or findings of a commission before it reports.

O’Brien and Bosc’s House of Commons Procedure and Practice states:

It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions, and that such matters should not be the subject of motions or questions in the House. Though loosely defined, the interpretation of this convention is left to the Speaker. The word “convention” is used as no rule exists to prevent Parliament from discussing a matter which is sub judice. The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue. While certain precedents exist for the guidance of the Chair, no attempt has ever been made to codify the practice in the House of Commons.

They go on further to state:

. . . the interpretation of this convention is left to the Speaker. . . . as no rule exists to prevent Parliament from discussing a matter which is sub judice.

There are some situations in which the application of the convention is fairly straightforward. The convention has been applied consistently to motions, to references and debates, to questions and supplementary questions and in all matters relating to criminal cases.

They also offer additional guidance on the role of the Speaker in this matter:

Since the sub judice convention is not codified and is voluntary, the jurisdiction of the Speaker . . . is somewhat difficult to outline. The Speaker’s discretionary authority over matters sub judice derives from his or her role as guardian of free speech in the House. The Chair has the duty to balance the rights of the House with the rights and interests of the ordinary citizen undergoing trial. Indeed, the Speaker intervenes in exceptional cases only when it appears likely that to do otherwise would be harmful to specific individuals.

Chapter 20 of O’Brien and Bosc observes that this rule applies to committees as well as to the chamber.

Of relevance today, this authority also notes:

. . . a Member who calls for the suppression of discussion of a matter on grounds of sub judice should be obliged to demonstrate to the satisfaction of the Chair that he or she has reasonable grounds for fearing that prejudice might result.

On that note, I do wish to acknowledge that Senator Boisvenu’s aim is to raise an important issue of public safety of justified concern to Canadians in relation to the decision-making process of the correctional system and the Parole Board. However, I fail to see how it would be possible for such an inquiry to be conducted and such a proceeding to be held without there being some evidence led before the committee as to what the actions of the Parole Board were and what would have justified any criticism or any suggestion of training and what kind of training would need to be offered to employees of the Parole Board without a consideration of what exactly it was that the accused person allegedly did.

I would add, for the chamber’s consideration, if we do feel the Senate is the appropriate forum for such a study, I wonder why this matter may be examined generally and without reference to focus given to a specific case that is before the courts, therefore, as Your Honour might find that this aspect of Senator Boisvenu’s motion is indeed out of order.

Specifically in this instance, sub judice would, in my view, apply because prejudice could arise in the discussion of all of the facts of the case, whether directly or indirectly relating to the release of the individual, his conduct while on parole and, in particular, his contact with respect to this particular victim or any other female with whom he came in contact while on parole.

Evidence could be examined related to the case without the legal rules of evidence applying and without other aspects of due process in application.

This country, of course, relies upon the principle that all people who are charged with an offence are deemed to be innocent until proven otherwise beyond a reasonable doubt. At this particular point in time, for there to be an inquiry conducted as to what it was that the Parole Board did and what the accused did while on parole, it could hardly be done without there being some infringement upon this accused’s right to that principle. Thank you, Your Honour.

I would like to briefly add my voice to the discussion on Senator Sinclair’s point of order. Let me apologize in advance, Your Honour, if I am repeating something that has been said. I was not in the chamber when it was discussed previously as I was tending to some of my duties that I have as the leader in my caucus.

I have studied it somewhat and I would just like to raise a few points, Your Honour.

Nowhere in Senator Boisvenu’s motion is the name of the victim, the name of the accused or any identifying details related to any criminal matter currently before the courts.

Senator Boisvenu has simply used a recent, highly publicized case in his speech — not in his motion — to illustrate the need for an urgent examination of an ongoing case. Nothing about this motion seeks to discuss the details of the alleged murder, but rather the actions of the Parole Board, which have been a long-standing area of focus and interest for Senator Boisvenu. Inviting a committee to examine a system and the management of that system and requesting recommendations to prevent misogynistic violence and unnecessary tragedy is certainly perfectly appropriate.

According to the Senate procedures and practice, the purpose of the sub judice convention is:

. . . to ensure a reasonable balance between the right to a fair trial and parliamentarians’ right to free speech. The convention has been generally applied in criminal cases before judgment has been rendered and during any appeal.

There is no criminal charge laid against any parole officer, commissioner or case worker associated with this incident. The details of the subsequent criminal case are irrelevant to the discussion that Senator Boisvenu is seeking to bring forward.

Regarding the discussion of how and why violent offenders are granted day parole and how the appropriate conditions are determined, according to the motion, the review would be very specific to the correctional system and to the Parole Board of Canada and what measures can be taken to improve the system.

A deep look into the systemic issues that may be present within the Parole Board and the consideration of additional training for commissioners will not in any capacity compromise the accused’s right to a fair trial. Therefore, I do not believe that a point of order on the basis of the sub judice convention is legitimate.

The motion before us seems to be calling for an investigation into:

[How] the Parole Board of Canada managed the case of an inmate accused of the murder of a young woman . . . to ensure another tragedy such as this never happens again . . . .

In other words, there are two parts to this motion. One part has to do with the how, and in French it reads, and I quote:

. . . dont le système correctionnel et la Commission des libérations conditionnelles ont géré le détenu accusé de la mort d’une jeune femme alors qu’il était en semi-liberté en janvier de cette année . . . .

This is about a very specific case. I do, however, want to point out that the French version mistakenly refers to examining the manner in which the correctional system and the Parole Board of Canada managed the inmate, when in fact it should refer to the manner in which they managed the inmate’s case. To me, this sounds like the French version is incorrect because we’re talking about managing a person’s case rather than managing a person. A person is not an object to be managed.

I leave it to your discretion to rule on this point of order. We should differentiate between two aspects of this motion. First is the part of the motion that deals with an identifiable inmate and that refers to specific elements, and the second has to do with the training programs and rehabilitation programs to be implemented. Thank you.

I thank honourable senators for their input into this complicated and important question. I will take the matter under advisement.