Justice Committee on Nov. 6th, 2006

[The Chair, Conservative, Art Hanger]

I'd like to call the meeting of the Standing Committee on Justice and Human Rights to order. Today, following along with the study of the effects of the abolition of the Law Commission of Canada, we have Minister of Justice Vic Toews here with us; we also have the Deputy Minister and Deputy Attorney General, Mr. John Sims. Welcome to our committee.

The committee will also express its appreciation in reference to your extended time here, Minister, with regard to the Judges Act—I know there were some further questions that the committee had of you—for 15 minutes. So thank you again for extending your time.

I now give the floor over to you.

[Vic Toews, Conservative, Minister of Justice]

Thank you, Mr. Chair. I'm pleased to appear before the members of the justice committee, and at your request my remarks will focus on the Law Commission of Canada. I understand that if there are some questions then on the issue related to the judges' salaries, I'll see if I'm in a position to be able to answer them; if not, I'll take any questions and simply defer those answers for a more appropriate time to make sure I have the information before me.

As you indicated, Mr. Chair, today joining me is Mr. John Sims, the Deputy Minister of Justice and Deputy Attorney General of Canada.

Mr. Chair, when I first appeared in front of this committee last May, I said that the Department of Justice has a very real impact on the lives of individual Canadians. As a reflection of that impact, the Government of Canada spends, within the justice portfolio, more than $1.4 billion annually. This includes the Department of Justice Canada, the Courts Administration Service, the Supreme Court of Canada, and various tribunals and commissions.

Improving the justice system is one of the government's top five priorities. We have firmly committed to making Canada's streets and communities safer. At the same time, this government has also promised to spend Canada's tax dollars responsibly.

Mr. Chairman, in budget 2006, Canada's new government promised to review our programs to ensure every taxpayer dollar spent achieves results, provides value for money, and meets the needs of Canadians. On September 25, 2006, we carried through on this promise by finding four areas where Canadians can save money: first, by eliminating programs that were not providing value for the money; second, by cancelling non-core programs; third, by redirecting unused funds; and last, by achieving financial efficiency.

As part of that promise, the government has eliminated funding for the Law Commission of Canada. By doing so we will be saving the Canadian people nearly $4.2 million over two years. That money is going directly to pay down the debt.

The Law Commission of Canada was an independent federal law reform agency that advised Parliament on how to improve and modernize Canada's laws. However, when we looked at the various agencies of government, it became apparent that there was nothing the Law Commission of Canada did that was particularly unique or that could not and was not being carried out by other institutions.

During its tenure the Law Commission of Canada tabled a number of reports to Parliament, which were generally instigated by the Law Commission of Canada as a result of issues that it had identified. These included one on participatory justice; one on security interests; another on secured transactions; a fourth on electoral reform; another on adult relationships; and the most recent report, which was tabled in July of this year, on policing in Canada. They also produced a report on institutional child abuse at the request of the government. In 10 years—and this is an important point to make—since the Law Commission of Canada was created, during nine years of which there was a Liberal government, the report on institutional child abuse was the only report requested by the government. So in all those years there was only one report ever requested by government. These reports are still available within the public domain should the occasion arise to draw upon their contents.

The Law Commission of Canada was specifically structured to draw upon the expertise of people working in their respective fields. It was a very small organization that relied heavily on contractual relationships with outside experts. Across Canada, as I speak, there are independent research bodies at all levels inquiring into how Canada's laws might be improved, much as the Law Commission had been doing. They include provincial law reform commissions; educational institutions with policy capacity--for example, the University of Ottawa is leading the On the Identity Trail project, which is a broad partnership of the university, government, and industry players with an interest in issues related to identity and privacy--also independent non-governmental organizations interested in law reform, like the Canadian Tax Foundation or industry-specific organizations like the Canadian Bankers Association; also working groups that involve the federal, provincial, and territorial ministries responsible for justice; and finally, the private sector and research functions within federal and provincial government departments.

These groups are also carrying out valuable cooperative work with international associations. Many of these organizations provide their input whenever a law is getting reviewed or updated.

It was from this very same body of experts that the Law Commission of Canada drew its advice. Those very same experts are still out there contributing to policy research within their chosen fields; therefore, the capacity has not been lost at all by shutting down the commission.

Furthermore, I'm very confident that, should I need additional support and independent advice over and above what these organizations may already provide on any given law reform initiative, my own department has a capacity to foster partnerships and consultations with whoever may be appropriate for the task. For example, within the recent past my department has engaged in broad consultations with the Canadian Forum on Civil Justice; GPIAtlantic, an independent, non-profit research and educational organization; the Dalhousie Health Law Institute; and the Saint Mary's department of criminology.

As you all know, the Department of Justice has the ability to contract for legal research as it sees the need arising. There's a wide range of subject matter experts with whom we have relationships and with whom we can partner in addressing issues of reform or in conducting independent inquiries in areas of legal interest. We do not need to fund a standing organization for decades based upon the possibility that this need will arise. Again, I reiterate that in 10 years there has been only one request by government for any advice from that institution.

Mr. Chairman, I must state here that I support the idea of legal research and law reform. I also support our government's approach to creating efficiencies by eliminating programs and services that can be provided by other parties. In addition, I support the idea of public consultation, which is another service that was provided by the Law Commission.

Consultation can take many different forms, and it can occur at different stages of the law reform process. Consultation mechanisms also very much depend on the topic at issue. For example, this government has recently worked closely with the police associations to help find ways, through legislative reform, to better protect Canadians. Our approach is focused and task-oriented. Through this approach, we have succeeded in quickly and efficiently addressing the government priorities that Canadians voted for last year. It is clear, therefore, that we will continue to learn about issues surrounding the justice system and potential reforms through other mechanisms while still providing value for Canadian taxpayer dollars.

This government does not see a need to fund an organization that largely acts to engage the services of other organizations to carry out the research. I think that's an important point to remember. They essentially did not carry out the research directly, but in fact contracted out to have the work done on their behalf. The Department of Justice will continue to develop and maintain direct relationships with those individuals and organizations that are engaged in policy development, and it does need an interlocutor like the Law Commission of Canada to do this.

In closing, Mr. Chairman, I wish to reiterate that our government is responding to the wishes of Canadians, and that the Department of Justice has been instrumental to that response. We are making changes to the justice system that will make Canada's streets and communities safer, and we are continuing to contribute to the effort to spend Canada's tax dollars responsibly.

Mr. Chair, I welcome your questions and the questions of the membership here. I look forward to your feedback.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Minister.

It is the first round. Go ahead, Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Thank you, Mr. Minister. Thank you for coming and giving evidence here, your témoignage.

It's important for us as Canadians to understand where this new government's coming from, and I'll put the cards on the table as far as the politicization of the Law Commission is concerned. The Law Commission seems to go in and out with the switch in Liberal and Conservative governments. The Law Reform Commission was a Liberal creation ended by the Mulroney Conservatives, and the Law Commission was a Chrétien device terminated by the Conservatives.

I'll leave that obvious political angle aside and ask you three basic questions.

One is, do you think our international marquee ability to be a leader in justice issues is damaged by the fact that in western democracies we would be alone now, aside from the United States perhaps, in not having an independent advice vehicle?

The second question is central. Will the work the Law Commission does and has done in the past be done by others? You rightly point out that it contracted its services to law experts, many of whom are on the faculties of our law schools. The question might be, did you consult with the deans of the law schools across Canada to determine whether this independent research on many areas of law is needed? I can cite the six that were being worked on: globalization, indigenous peoples, policing, etc. You mentioned some of them in your remarks. How sure are we that the law schools, which seem to be the only ones standing in this regard, will have the capacity to do that if they're not getting the funding from the Law Commission?

By argument, I say to you that the CBA is off the list of people who might do your research, because I'm sure you saw the letter in which they said they were taken by surprise to hear that the CBA, the Canadian Bar Association, could fulfill this role. I argue with you that the Department of Justice, which in many cases is making laws that are going to be contested by the independent research that might be needed in various areas.... I question whether the Department of Justice is the resource centre for this type of independent research; that's what it is, independent research.

With all respect, I throw out what I say is your red herring, that only once in 10 years did the government ask for a study. That's precisely the point, isn't it? This is supposed to be independent advice on important subjects drawn from the best experts, and not necessarily advice that you would ask for as Attorney General, or I would ask for as an opposition justice committee member. The indigenous peoples, which my friend Mr. Bagnell's going to get more into, is a very good case in point. Who's going to ask for that research? I sure as heck think it's not going to be the Canadian Tax Foundation or the Canadian Bankers Association. I put that to you in a somewhat argumentative way.

In short, is our international presence damaged by your decision to cut out the Law Commission? Will its work be done by other assets in the community, given that there's no money now for legal research in the universities, and finally, by whom? With the CBA and the government, the CBA is out of the question, and the government really can't be researching its own laws.

[Vic Toews, Conservative, Provencher, MB]

Thank you. I think those are all good questions.

In terms of just the political side you made, it's an important one. It indicates a different approach to who needs to be involved in getting independent research. There are often times, as the Attorney General, that I ask for independent research in particular cases, independent legal advice, where it would appear that the Department of Justice could be perceived to have a conflict. And that is done as a matter of course.

With respect to whether the work will be done, I taught at a university on a part-time basis for eight years, and I did so basically, if not on a pro bono basis, pretty well on a pro bono basis. The professors there--and I think it's standard right across the country--are given one-third of their time for teaching, one-third of their time for community issues, and one-third of their time for doing research in their field. They are paid to do that by the taxpayer of Canada. I'd be surprised to say that simply because $4.2 million wasn't available to these professors they would not carry out what they are, either under the conditions of their tenure or under the conditions of their contract, obliged to do. They do it on a regular basis.

You've indicated if we want specific advice. If we want specific advice, there are independent people who can do it. And I'm very surprised to hear that the CBA can't provide independent advice. They have always provided independent advice for all the years I've been coming to this committee. I haven't always agreed with it, but it certainly has been independent advice critiquing government bills. That has been an absolutely important function. And so for the CBA to say that they don't carry out that type of research, I find amazing when I look at all the publications that the CBA has done. You'll have to ask the CBA why they are discounting all of the independent legal research that they have done, not only for the House of Commons but in fact for the legal community in general. I find that a startling comment on behalf of the CBA. I haven't read the full context, so it might be taken out of context.

I see the Law Commission of Canada as simply being an administrative mechanism to hire individuals to do research. Well, I can tell you, we have people who are competent to hire those individuals inside the Department of Justice. It doesn't mean the Department of Justice lawyers will be doing the work. We will still, I anticipate, continue to hire people outside to do some of that work.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Good afternoon, minister.

A philosopher by the name of Valéry said that a government's greatness is measured by the way it treats its minorities and the value it places on knowledge. You understand that your government will go down in history with this issue.

With all due respect, there are no words to describe the degree to which your government's policies toward minorities—particularly Francophone minorities outside Quebec—disgust, repel and nauseate me. I can't imagine how a government can abolish the one and only program that would enable communities to appeal to the courts, and I hope, when you travel to meet with the spokespersons of the Francophone communities, that they'll tell you how mean and short-sighted your government is. Let's hope that you pay a very high cost for eliminating this capability for defending the Francophone communities.

That said, I want to talk about reforming the commission you're abolishing. I find your logic quite peculiar. Is there anyone in the federal public service who can prepare reports? We don't doubt that. This is definitely a point of view that we can receive. The specific characteristic of the commission is, first of all, its total independence. When it comes to orientations and public servants are involved—whether they be deputy ministers or any branch of a department—an organization loses some of its independence. You'll agree with that.

Furthermore, what surprises me in your argument is that UNESCO has reminded us that knowledge and events that occur in the world double every five years. It also recalled how important it is for parliamentarians to make decisions in an environment in which we have access to decisive and conclusive information.

What is your criticism of the commission? How can you prove to us this afternoon that there was really a duplication? I was very pleased to read what the commission wrote on same-sex spouses, Aboriginal persons and on voting reform and electoral life. We feel that the body of opinions it has produced generally falls within the debates on current issues for which we expect parliamentarians to have information.

Are we to understand that, for you as a parliamentarian, that the issue of having timely knowledge and available information from an independent organization is not important?

I'll conclude by telling you that a number of consultative organizations provide the government with advice. Will you one day be abolishing the National Council of Welfare or the Senior Citizens Council, which also provide information and orientations and publish opinions? The sole mandate of the Law Reform Commission of Canada was to report to the government; it could take initiatives on current issues.

This seems to me a short-sighted action taken by a government that attaches little value to knowledge. In my view, thinking that we can assign mandates within the public service shows a singular lack of vision, of a broad view and of generosity. I admit I find it very hard to understand you.

As regards Francophones outside Quebec, I'll never pardon the petty action your government has taken. You definitely won't redeem yourselves now. This isn't the same thing. It's obviously less serious to abolish the commission than Francophones outside Quebec.

It's as though you had a kind of aversion to everything that's knowledge or is likely to differ from what you think. In view of the fact that the senior public service analyzed your election platform, saying that it was rubbish and contained virtually nothing good, you should perhaps leave some room for reflection. It's also part of the greatness of a minister to be able to face views that do not come directly from government.

This action does your government no credit. It shows no greatness in the way you directing matters or govern the state.

[Vic Toews, Conservative, Provencher, MB]

With respect to the Court Challenges Program, of course I can't talk about that because it's before the court right now. But the issue, for example, that you have to set up a body in order to contract to get independent advice is simply reflective of a philosophy that you share perhaps with the Liberals--that the more bureaucratic layers you have, the better is it. We don't necessarily agree on that particular point.

For example, I have been involved in independent studies as a government lawyer, as a minister in provincial politics. I'm quite aware, for example, of the work done by Judge Chartier in the province of Manitoba on francophone language rights in that province. It was commissioned by our government for a judge to do. The title of the report was called Above All, Common Sense. But the point—

[Réal Ménard, Bloc, Hochelaga, QC]

Why are you abandoning Francophones outside Quebec? Do you think they'll have access to justice? How much did it cost Prince Edward Island? Do you think any organization in the country is able to pay $500,000? How can anyone be so petty toward Francophones outside Quebec? What did they do to you? Why not recognize that they need you?

[Vic Toews, Conservative, Provencher, MB]

We're getting onto two different topics. We were talking, as I understood, about the Law Commission of Canada. If you want to confuse issues, go ahead, but I'm here to talk about the Law Commission of Canada.

As I've indicated, the judge in that particular case did a remarkable service for the francophone people in my province--most of whom, in the rural areas, are in my riding. I understand the issue of francophone language rights very well. I've worked with them when the Liberal government was busy shutting down RCMP stations in my riding, which was my riding when I was a provincial justice minister. We talked about the issue of French-language services, so I'm quite familiar with the issue of French-language services and their importance. I have the largest group of francophones in western Canada in a rural riding, so when you--

[Réal Ménard, Bloc, Hochelaga, QC]

You're hard to understand.

I'm going to ask a question.

If you want to talk about Francophones, allow me to ask you a question. If you are the member with the largest group of minorities, how can you think they don't need government assistance to go before the courts? Do you know how much the references concerning independent school boards cost?

[Vic Toews, Conservative, Provencher, MB]

Let me end it this way. You are simply thinking that one vehicle is better than the other. We disagree. Do we have the same goal in mind--the enhancement of language rights in our country, including English language rights in Quebec? I hope that we have both as a goal.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Incredible!

[The Chair, Conservative, Art Hanger]

Mr. Comartin is next.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Mr. Minister, and Mr. Sims as well, for being here.

Mr. Minister, I have no hope of being able to convince you to the opposite, but do you have any sense of the significance on independence of killing this program? That's really what this is about.

Let me give you a scenario, and this is the perception that a lot of lawyers in this country have of your government's role with regard to the commission. Their perception is that the commission has conducted their role in terms of their reputation both nationally and internationally as having, as you say, acted as a broker to commission studies in a wide variety of areas, as you've just heard from Mr. Ménard. They've done that well by international standards, perhaps better than any of the other commissions internationally. What they see now is a government that wants to pick and choose who is going to do the independent research that needs to be done. It's now tainted by a government that has gotten rid of the commission, is going to pick the researchers themselves, and is going to pick them from an ideological or partisan political standpoint, rather than allowing this independent commission to determine both what studies are going to be conducted and who is going to conduct them.

As a result, the perception in the country by most lawyers I've talked to is that the credibility is gone. Research, when commissioned by a government--yours in particular--is going to be completely tainted by ideological or partisan political consideration.

Do you have any appreciation of that reality in the country, at least in the legal community, among both academics and practitioners?

[Vic Toews, Conservative, Provencher, MB]

I find it interesting that we're talking about a budget of $4.2 million and we see as well law professors throughout universities who are totally independent. They have tenure; they're entitled to comment and do research, as they're required to by their lawful contracts and by their tenure. The law societies provide that independent advice. The bar associations provide that independent advice on a regular basis. For someone to suggest for one moment that the government could go out and get a legal opinion that had no credibility and then try to stand on top of that in terms of defending its case simply doesn't even make legal sense, and it doesn't make political sense.

Working in the Department of Justice provincially and with colleagues right across Canada, I have found there is a high degree of independence among the justice department lawyers, first of all. That's the first thing. You don't tell justice department lawyers what kind of advice they're going to provide.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Minister, you're not going to suggest that the department lawyers have the time. I'm not challenging at all or questioning their independence; I accept that as a given statement. But they don't have the time to do this kind of research. You're not suggesting that, are you?

[Vic Toews, Conservative, Provencher, MB]

At least we are suggesting now that we have an independent--and you're confirming that--organization, the Department of Justice, which can in fact supervise, and if you say they don't have the time, I'm willing to debate that. The Department of Justice does regular work in many areas of the law in terms of providing good independent advice, and always has. I always provided that independent advice to my ministers, whether they were New Democrat or Conservative in Manitoba, and that is a tradition inside the Department of Justice.

We're also, for example, moving to strengthen that independence through the creation of the Director of Public Prosecutions. I'm not concerned that there isn't an independent aspect and ability to not only provide evidence, but then to obtain appropriate individuals to provide us that independence.

The most glaring example I can point to that is the example of a hearing involving Mr. Justice Rothstein, where the Department of Justice paid for independent advisers to advise Justice Rothstein in any respect he wanted. Certainly no one would suggest that because they were hired by the Department of Justice to assist a potential Supreme Court of Canada judge, who was a Federal Court of Appeal judge, somehow these very eminent individuals were lacking in independence. The law societies wouldn't agree with you, the bar associations wouldn't agree with you, and quite frankly, the statement you're making is simply not justified.

[The Chair, Conservative, Art Hanger]

Very quickly, Mr. Comartin, one more question.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I didn't expect I was going to change any minds, Mr. Chair, so I'll pass.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you, Minister, for appearing before us today. We appreciate the opportunity.

I've heard members opposite talk about the need for independent advice and research, and so on, and I think we all agree that there is a need--and you've mentioned that--to get outside advice. But one of the figures you mentioned I found most alarming: that in the last ten years the government--ours and the previous government--has only sought advice from the Law Commission once. So it would appear that even the previous Liberal government, as far as getting value for taxpayers' dollars is concerned, was not even using the independent advice of the Law Commission.

I wonder if you could elaborate on that as to the value for taxpayers' dollars if the Law Commission was only requested to provide information once, in one report, and secondly, how the department can go about getting what is perceived as independent legal advice, go outside the department to get advice on any issue that might be before the government.

[Vic Toews, Conservative, Provencher, MB]

I just wanted to make sure there wasn't any aspect I was missing in some of the other comments I made. I just wanted to check that with the deputy minister. He may have some additional comments.

Again, I think the point is made--there has been one request in 10 years for this independent body to provide pertinent advice to the Government of Canada. In all other respects, the Law Commission simply went its own way.

Who determined what they were going to do? It wasn't the government, and it wasn't necessarily governmental priorities with the Liberals. I'm certain the former ministers of justice went to the Department of Justice in 99.9% of all the work they had done to get independent legal advice. That's where they got their independent legal advice. That's where they got their ideas on law reform. Quite frankly, I'm confident that the Department of Justice, at least in most respects, can provide that independent legal analysis, so I'm very comfortable relying on in-house lawyers to do that.

There are other cases, and I mentioned the Rothstein appointment process, in which we felt we should bring in additional outside eminent counsel to advise not only Justice Rothstein, as I indicated, but also the committee. I remember sitting in the chair position; I think it was even in this room. The experts told us what they felt the constitutional limits and the constitutional proprieties were of that kind of process. We didn't go to the Law Commission of Canada to hire those experts, yet we understood that if there wasn't a credible process, the entire institution of the Supreme Court of Canada could be discredited by that kind of a process.

Is there an ability to obtain good independent legal advice on a continuing basis, whether it's from justice department lawyers, or those who are hired by the Department of Justice, or existing organizations--including provincial law reform commissions--or universities, or university professors? Those individuals are in no way bound to agree with government positions. They have the ability to comment on any piece of legislation, as they often do.

[Rob Moore, Conservative, Fundy Royal, NB]

Any time our government has brought forward a bill, or...having been a member in opposition in the previous government, I noticed that any time a government bill was brought before the justice committee, there was no shortage of individuals who wanted to appear as witnesses. You mentioned the Canadian Bar Association. I know that they have a director of legislation and law reform. They have a law reform director. Other bodies have appeared before our committee on government legislation to talk about every conceivable aspect of that legislation--the constitutionality of the legislation, the impact it would have on society, and so on.

I think Canadians might ask why this wasn't done sooner. Why would we be spending taxpayers' dollars--you did mention that we have to respect taxpayers' dollars--when there are so many other completely independent bodies willing to perform that work?The previous government asked for research only once. They asked only once for a study to be performed by the Law Commission.