House of Commons Hansard #147 of the 37th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was copyright.

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The House proceeded to the consideration of Bill C-30, an act to establish a body that provides administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada, to amend the Federal Court Act, the Tax Court of Canada Act and the Judges Act, and to make related and consequential amendments to other acts, as reported (with amendment) from the committee.

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10 a.m.

Wascana
Saskatchewan

Liberal

Ralph Goodale for the Minister of Justice

moved that the bill be concurred in.

(Motion agreed to)

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10:05 a.m.

The Acting Speaker (Ms. Bakopanos)

When shall the bill be read the third time? By leave, now?

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10:05 a.m.

Some hon. members

Agreed.

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10:05 a.m.

Wascana
Saskatchewan

Liberal

Ralph Goodale for the Minister of Justice

moved that the bill be read the third time and passed.

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10:05 a.m.

Northumberland
Ontario

Liberal

Paul MacKlin Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Madam Speaker, it is my pleasure to rise to lead off the debate on third reading of Bill C-30, an act to establish a body that provides administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada.

The principal objective of Bill C-30 is to improve the efficiency and effectiveness of the administration of the Federal Court of Canada and the Tax Court of Canada through certain structural modifications to these courts. At the same time, these amendments are intended to fully respect the courts' independence and to ensure the continued provision of the high quality of justice that Canadians have a right to expect from these courts.

The bill contains three important structural modifications to the courts. First, the consolidation of the current administrative services of the two, the federal court and the tax court, into a single courts administration service. Second, the creation of a separate Federal Court of Appeal. Third, a change in the status of the tax court to that of a superior court.

The most significant structural modification to the bill is the consolidation of the administrative services of the courts and the establishment of the courts administration service. The service would provide the administrative needs of the federal court, the tax court and the court martial appeal court. This would entail common management of all aspects of administration, including court facilities, registries and related real property and common corporate services.

As hon. members know, our constitution establishes that responsibility and power for courts administration be shared between the judiciary and the government. The government is responsible for providing and is publicly accountable for the necessary resources required to support the courts' functions while chief justices are responsible and accountable for the effective administration of the courts as it relates to the judicial function.

The Supreme Court of Canada has held that to ensure the courts' institutional independence the judiciary must control all matters bearing directly on the adjudicative function.

However, delineating the respective authority and accountability of the government and the judiciary is not always a simple task. There is a large operational and policy area in which both government and the judiciary have an interest and a role.

Thus, in addition to the constitutional imperative that any model developed must respect the role of the judiciary and the government in the administration of the courts, the practical realities of this shared responsibility necessitated collaboration between the government and the judiciary in the development of the proposed structure of the courts administrative service.

The bill would establish a structure that would permit both the government and the judiciary, through the office of the courts administration service, with the chief administrator at the head, to collaborate in such a way as to maximize public accountability and judicial independence.

In addition to being supported by the courts affected by the reforms, these reforms will be welcomed by those served by the courts. The establishment of a single administrative structure will enable administrative improvements and efficiencies to be effectively realized while maintaining the high quality of service that Canadians expect from our national institutions.

I am very pleased to report that during the second reading debate, all parties indicated their support for Bill C-30. I would ask all hon. members of the House for their continued support.

The bill represents an unprecedented opportunity to put in place a model for court administration that will balance judicial independence and public accountability as well as create opportunities for realizing economies and efficiencies.

As hon. members are aware, the bill was introduced by the former minister of justice. I am very pleased to carry forward legislation that in my view creates an innovative structure.

I believe that with its appropriate balance between public accountability and the requisite institutional independence of the courts the service will become a model for other jurisdictions.

I thank the hon. members of the House for their attention today and ask for their support in the passage of Bill C-30.

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10:10 a.m.

Canadian Alliance

Brian Fitzpatrick Prince Albert, SK

Madam Speaker, the Canadian Alliance supports the aims of the bill which are efficiency, presumably cost savings, which the Canadian Alliance would certainly agree with, and improved quality. However, we are not so sure about judicial independence.

I want to comment on some of these points because the government has a habit of putting some good aims into its legislation and then forgetting about them after the legislation comes into effect. The government does not review or monitor its legislation. We then become frustrated to learn that the aims were never achieved.

I will begin with efficiency and cost savings. How will there be efficiency and cost savings through these consolidation procedures? I presume duplication will be eliminated and positions will be eliminated. Obviously if all the personnel are being brought under one roof, with one chief clerk of the court, positions will be eliminated.

I have not seen anything from the government as to how many people will lose their jobs through redundancy. I am not exactly sure what kind of standardized procedures will be brought in to bring about greater efficiency.

I suspect that in five years we might see a report from the auditor general saying that in the administration of the court system there are more employees than there are today and the costs are higher than they are today. I expect to hear that but the aim is good. The government has problems executing the legislation to get the results that are talked about.

The government is also talking about the need for improved quality. For most Canadians access to our court system is next to impossible. Unless people are very wealthy, unless it is a government or unless it is a group that is funded by the government, they do not have access to the court system. It is beyond their reach. From a cost standpoint, most people would have to mortgage their house in order to use the system.

The court system is extremely complex and the procedures are very lengthy. The federal court system is even Greek to most lawyers. It is still a great mystery how this thing, which was created in the early 1970s, fits in with the rest of the court system.

I do not see any specific plan or quality objectives enunciated by the government. The government says that there will be improved quality but I do not see a plan or a process to improve quality. I am rather dubious about it.

The Liberals seem to assume that if a process is centralized and consolidated, and if more power is concentrated in the centre of Ottawa then that automatically translates into quality improvements, despite the fact that almost every public administration academic person or public management person would say that is a false assumption.

In the private sector good organizations use ISO standards to measure quality. This is a very objective way of determining quality and standard and making sure that services and products meet standard quality services.

I surmise that if the government started using ISO standards, the court system would fail miserably and not meet the standards. If ISO standards were applied to the department of Indian affairs it would certainly fail miserably. We only have to look at the results of programs in that area. It is a disaster and there is no quality in that department.

If ISO standards were applied to immigration, I wonder what would be said about the 27,000 refugee claimants who were subject to deportation orders by a government that does not even know where they are any more or what has become of them.

What about the military? How in the world could any person apply objective standards of quality, in terms of materials, resources and equipment, and say that the military meets ISO standards for quality?

What about Correctional Service Canada and the parole system? It is a dismal disaster in terms of providing quality there.

What about the fisheries department? There are probably more people working in the fisheries department than there are actual fishermen and fisher ladies.

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10:15 a.m.

An hon. member

Maybe even more than there are cod.

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10:15 a.m.

Canadian Alliance

Brian Fitzpatrick Prince Albert, SK

Yes, may even more than there are cod. Some people feel we should give the federal government more power because we will somehow get better quality. Well I do not share those comments.

A third area that I am not exactly excited about is the talk about judicial independence. The problem we have with judicial independence is the appointment process we have for judges. There are no committees to review this matter and the public has no say in it. Our friendly dictator picks up his phone, gets someone's agreement to be a judge and bingo, someone is a judge. That is our system and there is a problem in terms of judicial independence.

In my view I can hardly think of a court system that has more power than in this country. Prime Minister Trudeau, back in the early 1980s, created something called the charter of rights which gave our courts so much power that most of those people sitting in the other house have become quite irrelevant in terms of power and in exercising that power. The Supreme Court of Canada has far more power than anybody on that side of the house.

I want to go through a few things that the Supreme Court has decided in its wisdom. It decided that prisoners should have the right to vote in federal elections. It made the decision to give people like Bernardo and Olson the right to vote, a decision on which it overruled the Parliament of Canada. It decided that anybody who lands on Canadian soil shall be entitled to the full rights under the charter in our judicial system. We have made it virtually impossible to extradite some of the most dangerous criminals in the world who land on our soil. Through its wisdom, it created absolute chaos in the lobster fishery and in the relations between native and non-native people. The list goes on and on.

The Supreme Court has a lot of independence and this is a bogus claim. What in the world does the staffing of the court system have to do with judicial independence? It is way beyond my imagination. The judicial independence issue is a creative argument in the labour management area. Judges must get paid, they must have staff and so on, but please bear in mind that they are employees of the government and they are in a bit of a conflict. If we look at it from a labour management standpoint, we are giving up a lot when we tell the courts that they have free run at hiring their administration staff and in determining their own salaries.

I have noticed a disturbing trend at the provincial level where we have actually had labour management disputes between the judges and the government over salary and benefits. Because these disputes cannot be resolved, the judges go off to the courts to have these matters resolved. Guess who the courts side with? Invariably they side with the judges on these disputes on the premise that the government is interfering with judicial independence. What labour union would not mind having that relationship? If there is a dispute, people could just apply to their labour union brothers who sit on some tribunal and they would make the decision.

I really do not understand this argument that we need to have this restructuring because it is in the interest of judicial independence.

I want to emphasize one final point for the government. It has embarked upon a piece of legislation with certain aims. I do not see one single tool or mechanism in place to monitor it to see if any of the aims will be achieved.

The government is very good at passing legislation that has negative and bad results. It is because it does not have a plan in place. It gets some bureaucrat to create the legislation. It brings the legislation to the House, rubber stamps it and then rams it through with the hope that it will work out in the final end.

When legislation is created in the House it is high time we put monitoring mechanisms in place to make sure the legislation does what it was intended to do and, if it does not, we get rid of it.

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February 22nd, 2002 / 10:20 a.m.

Bloc

Michel Guimond Beauport—Montmorency—Côte-De- Beaupré—Île-D'Orléans, QC

Madam Speaker, I am pleased to have the opportunity to speak to Bill C-30, an act to establish a body that provides administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada. It consolidates the administrative services already in place under a chief administrator. This bill also creates a Court Martial Appeal Court and makes justices of the Federal Tax Court into justices of the Superior Court .

The first amendment had been needed for some years, and in fact reflects the organization chart already in place for the other courts, both federal and provincial, that is a court of first instance, or trial court, and an appeal court. The third is a matter of terminology only, not changing the powers and duties of these judges in any way.

I wish to point out to begin with that the Bloc Québécois is in favour of protecting the principles of impartiality and independence of the judiciary from any interference by the executive and legislative branches of government. We are, however, forced to admit that the Minister of Justice, a Quebecer to boot, has not seen fit to extend this protection to the mechanisms for selecting the chief administrator, by having a call for nominations from which the final selection would be made by the House and not by appointment by the governor in council.

When we see that a bill states that appointments are to be made by the governor in council, this is just a roundabout way of saying, “We want to continue the system of patronage we have at present”. The governor in council is in fact a body composed of none other than the Prime Minister and the PMO, which decides on certain appointments. This takes us back to the standard demand by the Bloc Quebecois that these appointments need to be submitted to democratic screening the House and its committees.

If the government, which often makes the claim of transparency, has nothing to hide, why does it allow this power to be left in the hands of the Prime Minister, his cabinet and the Privy Council, which is really nothing but the Prime Minister's department?

This bill could be more effective if it respected the concept of appearance of justice by giving preference to the selection of candidates, rather than a governor in council appointment. The Bloc Québécois presented an amendment in committee to call for nominations in order to select the chief administrator. As members can imagine, given the Liberal majority sitting on the Standing Committee on Justice and Human Rights, this amendment was rejected. We believe that the suggestion made by the Bloc Québécois could have preserved the independence of the bench and protected it from government interference.

While an independent administrative body is created, its administrator remains under the authority of the executive branch, namely the Prime Minister's Office, because of the appointment process itself. Why did the government not also want to preserve the independence of the chief administrator?

There is a contradiction here and, as parliamentarians, we are greatly disappointed by that. We were hoping for more. Given the government's intention to undertake a reform in this area, it would have been desirable to extend its scope to the fullest.

In conclusion, the Bloc Québécois feels that the objectives mentioned in the preamble of the bill, which include co-ordinating activities between the various federal courts an increasing judicial independence and responsibilities regarding the use of public moneys, must be supported.

In spite of the flaw relating to the appointment process of the chief administrator, the Bloc Québécois feels that the protection of the principle of judicial independence must prevail. This being said, the Bloc Québécois supports Bill C-30 at third reading.

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10:30 a.m.

Progressive Conservative

Peter MacKay Pictou—Antigonish—Guysborough, NS

Madam Speaker, I am pleased to take part in this debate.

This bill is one which I think has already been described as technical in nature, but certainly is a very important bill and one that has laudable aims and goals. On behalf of my colleagues in the Progressive Conservative coalition, we are supportive of the bill, the efforts it entails in making the courts more effective and efficient and, to use the vernacular, keeping the wheels of justice turning in what is increasingly a very complex system throughout this country.

It has salary components and elements of consolidation. The salary components perhaps are those which could be described as the most sexy parts of this bill. In essence, their aim is to ensure that judges remain independent and free of influence. The bill touches upon some of the very tenets of law in that it is meant to ensure there is greater access and efficiency in the administration of justice.

The bill itself touches upon a number of elements that I hope to discuss in my brief remarks, but there is an important component behind all bills that relate to justice.

If I can digress for just a moment, one of the cornerstones of justice is the importance of truth, the importance of the evidence itself being presented in a truthful fashion. All efforts that are made to ensure that this is implicit in the administration of justice are very important. We could learn from this in the Chamber in the process we engage in as members of parliament; the importance of truth, the importance of ministers and of all members to be truthful in their relating of evidence, information and their exchanges within the Chamber.

The bill touches on a large number of other areas of the law. It touches on things such as the Federal Court of Appeal, the Court Martial Appeal Court, the Tax Court of Canada. It amends the Federal Court Act, the Judges Act and other consequential acts.

It can be described best as an omnibus bill. We have seen numerous omnibus legislation in this government's tenure. Some of that has been a very poison and partisan process which often has been used to try to scuttle opposition criticisms of certain elements of legislation. I do not believe that is the case with the bill before the House.

What the bill tries to do is consolidate the current administrative services of the Federal Court of Canada, the Court Martial Appeal Court and the Tax Court of Canada into a single courts administration service. It is aimed at streamlining the delivery of court services.

Often when we hear members of the government use this word, it is fair to say that we expect the opposite because streamlining has really not been this government's forte. In fact, we have seen expansion of bureaucracy under this particular government. However, at least in its intent the bill is certainly trying to streamline the current system. It amends the Federal Court Act and related legislation to create a separate Federal Court of Appeal and it amends the Tax Court of Canada and related legislation that changes the status of the tax court to that of a superior court.

It also goes about amending other federal statutes such as the Judges Act and the Access to Information Act, which we know has been thwarted in some instances very recently by this government, particularly as it relates to the disclosure of charge accounts of senior bureaucrats and ministers. That is unfortunate and is inconsistent with the government's earlier promises to be more transparent and more open in its administration. That certainly has not been the case.

The bill also touches upon the Canada Elections Act, the Corrections and Conditional Release Act, the Employment Insurance Act, Extradiction Act, Immigration Act, Income Tax Act, National Defence Act and Privacy Act to name a few. This is not the complete list.

I want to talk just for a moment about some of the substantive elements of the bill.

Bill C-30 proposes to change the Federal Court Act so that:

The Court shall consist of two divisions, called the Federal Court—Appeal Division (which may be referred to as the Court of Appeal or Federal Court of Appeal) and the Federal Court—Trial Division.

Under clause 19, section 10(1) of the act would read:

--any judge of a superior, county or district court in Canada, and any person who has held office as a judge of a superior, county or district court in Canada, may, at the request of the Chief Justice of the Federal Court of Appeal made with the approval of the Governor in Council, act as a judge of the Federal Court of Appeal, and while so acting has all the powers of a judge of that court and shall be referred to as a deputy judge of that court.

This would expand the diversity of the actions of judges in that capacity.

This can happen under current legislation but judges need the permission of the chief justice or chief judge of the court on which they currently serve as members, or they would need the permission of the attorney general of the province. It creates a new process to be followed.

Under the bill, section 11 of the act would read:

(1) Every person who is a barrister or an advocate in a province may practise as a barrister or an advocate in the Federal Court of Appeal or the Federal Court.

(2) Every person who is an attorney or a solicitor in a superior court of a province may practise as an attorney or a solicitor in the Federal Court of Appeal or the Federal Court.

It goes on to talk about the attorney, advocate or solicitor being an officer of the court.

Clause 21 of the bill with respect to sheriffs and their actions within the court is of importance and deserves highlighting. Under it, section 13 of the act would state:

(1) The Governor in Council may appoint a sheriff of the Federal Court of Appeal and of the Federal Court for any geographical area.

(2) If no sheriff is appointed under subsection (1) for a court for a geographical area, the sheriff and deputy sheriffs of the county or other judicial division or part of the county within that geographical area who are appointed under provincial law are ex officio sheriffs and deputy sheriffs--

In the constituency I represent in Nova Scotia, Pictou--Antigonish--Guysborough, we have an efficient and effective sheriff system due in great part to men like Jim MacDonald who is the high sheriff for Pictou county. The men and women acting in that capacity are custodians of justice in a very real sense. They are called on daily in their duties to help administer. They are the front line deliverers of many services and in some cases are the enforcers of the law.

They work closely with other elements in the administration system like the prothonotary. We are fortunate in Pictou county to have a woman as capable and competent as Doris Scanlan. She and others in the area I represent are doing an extremely good job for the people of Pictou county and surrounding areas.

One of the changes in Bill C-30 that relates to sheriffs would give every sheriff or deputy sheriff of the court ex officio status. A marshal as an ex officio would become a deputy marshall of the court.

There are elements of the bill that speak to the jurisdiction of the trial division. Under subclause 25(3) of Bill C-30, section 17 of the Federal Court Act would be modified as follows:

(3) The Federal Court has exclusive originaljurisdiction to hear and determine thefollowing matters:

(a) the amount to be paid if the Crown andany person have agreed in writing that the Crown or that person shall pay an amount to be determined by the Federal Court, the Federal Court—Trial Division or the Exchequer Court of Canada; and

(b) any question of law, fact or mixed lawand fact that the Crown and any person haveagreed in writing shall be determined by the Federal Court, the Federal Court--Trial Division or the Exchequer Court of Canada.

(4) The Federal Court has concurrent original jurisdiction to hear and determine proceedings to determine disputes in which the Crown is or may be under an obligationand in respect of which there are or may be conflicting claims.

The bill is technical in nature but deals with the nuts and bolts of the administration of justice, be it in civil matters or matters involving the criminal administration of justice.

A number of clauses deal with payment and the affixing or assigning of debt. I am referring to judgments of the court. Clause 50 of the bill deals with section 52 of the existing act which states:

The Federal Court of Appeal may

(a) quash proceedings in cases brought before it in which it has no jurisdiction or whenever those proceedings are not taken in good faith--

That is in essence the power to quash proceedings.

In the case of an appeal from the trial division it would have the power to dismiss the appeal or give judgment and awards the trial division should have given or awarded.

Again, the bill deals with making decisions based on fact, assignment of debt, and declarations or conclusions the trial division may have made that are subject to appeal.

The sections dealing with the tax court can be viewed as quite complicated but are of great importance. My colleague in the Alliance Party from Saskatchewan spoke quite eloquently in suggesting the administration of justice and civil court actions have become extremely cumbersome and convoluted and are beyond the pale of most average citizens. The ability to access justice and court administration has become cumbersome and almost unattainable in some instances because of the cost. It is cost prohibitive in many instances to take an action to court.

I mention this to underscore the importance of speeding up the way we react to conflicts in the law and the time it takes to get matters to the courts and the judges. We are finding time and again that the Department of Justice is in many instances complicit in efforts to delay justice because it is used as a tactic. It is used as a tactic in all levels of court to the advantage of individuals who have the ability to pay. The government is in a much stronger position if it can drag matters out to the point where people simply give up and go away because they cannot afford a lawyer or filing costs and in many instances cannot afford to wait and put their lives on hold.

This is an extremely important problem throughout the country. I hope the bill will have an impact on it. I am not completely confident it is the solution the government holds it out to be, but I see some merit in its efforts to streamline administration and make the courts more effective.

My hon. friend from Cumberland--Colchester would agree that it depends very much on the professionals and the proficiency of people working in the system. Whether in government, law, business or professional sports, a certain standard and level of efficiency must be applied. It cannot always be imposed by legislation. It must be fostered. It must be encouraged. It must be rewarded in some instances.

I hope the personnel who carry out the administration of justice will take seriously the intent of the bill. This is not in any way to cast aspersions on those who work in the system. I made a statement yesterday in the House about legal aid lawyers in Canada who do a tremendous job with a lack of resources. They go far beyond the pale in terms of the preparation time they require and the extraordinary effort they make to ensure access to justice on behalf of their clients.

It truly is a crisis. I do not use the word lightly because the phrase is often over-used in this place. Prosecutors and legal aid lawyers are labouring under a system that has become bogged down. The wheels of justice have not been turning in an effective way. I am hopeful that Bill C-30 is a starting point. It is an opportunity to revisit and re-examine areas in which we can become more efficient.

I alluded earlier to the Judges Act. One of the upshots of the bill would be to address increasing concerns about judges being susceptible to influence. I will be blunt. I am talking about organized crime, biker gangs or terrorists, either within our country or globally, attempting to influence judges through intimidation or bribes.

As the subcommittee on organized crime made a brief foray into the problem of organized crime in Canada it became clear that the scourge of organized criminal activity had far reaching influence in both criminal and legitimate sectors of Canadian society. We cannot in any way, shape or form allow such influence to permeate the halls of justice.

Thus the issue of judges and justices' salaries becomes increasingly important. We must find a way to ensure judicial independence is always maintained and that judges are not tempted by any outside influence that could compromise their rulings from the bench. This is an element of the bill we in the coalition feel is extremely important and one we embrace and support.

The salaries of federal court judges in recent years have by Canadian standards been seen as quite high. However let us consider the importance of the job they do, the pristine nature of the law, the need for it to be administered correctly and the need to attract the best, brightest, and most ethical. I strongly urge Canadians to think about the issue in that context.

The margin of error for people who administer justice is very small. Sadly, in recent days and years we have seen examples where people who should not have been entrusted with the responsibility have made improper rulings and commentary that have done considerable damage to communities and to the public image of their profession.

The bill would set out the levels of salaries, fix rates of compensation and deal with the duties judges are expected to perform. It would deal with how long they are required or permitted to stay in their positions and how they might be removed for indiscretions. It would deal with designation and salary adjustments if they choose to step down or are removed involuntarily from their positions of responsibility.

The bill is quite voluminous. It touches on important administrative departments and legislation in the current context.

The Access to Information Act is another bill which deserves our attention. There is a change afoot within section 52 of that act. It states:

(1) Any application under section 41 or 42 relating to a record or a part of a record that the head of a government institution has refused to disclose by reason of paragraph 13(1)(a) or (b) or section 15 shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear such applications.

This is very apropos to a current situation. The information commissioner, John Reid, has commenced an action because of the refusal of the PMO to turn over certain documents pertaining to the Prime Minister's schedule. Sadly, the issue of whether the documents should be made public is sometimes blurred. The information commissioner is not suggesting the documents simply be made public. He is suggesting he has the right to look at them and determine whether they should be made public.

Mr. Reid is a former member of parliament and distinguished member of the House. It is ludicrous and beyond perverse that the Prime Minister, who is ultimately responsible for appointing the information commissioner and entrusting those responsibilities to him, is in essence saying he does not trust him to make the call. It is somewhat disturbing and inconsistent with any suggestion of transparency in government.

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10:50 a.m.

The Acting Speaker (Ms. Bakopanos)

Is the House ready for the question?

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10:50 a.m.

Some hon. members

Question.

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10:50 a.m.

The Acting Speaker (Ms. Bakopanos)

The question is on the motion for third reading of Bill C-30. Is it the pleasure of the House to adopt the motion?

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10:50 a.m.

Some hon. members

Agreed.