Justice Committee on Nov. 29th, 2012

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

And thank you again, Minister, for joining us.

Particularly because your answers tend to be very fulsome, Minister, I thought I would ask a few questions, ask your officials, the deputy minister and Ms. Morency, to take notes, and then we might actually carry on the discussion afterwards.

I have a series of questions. They're all related to the issue of the item on funding to address challenges in the security admissibility cases protecting classified information, obtaining assurances against torture. There's a line item for $3.4 million, of which $3 million more is needed.

The premise of these questions, so you understand where I'm coming from, is that to understand the costs, and therefore the need for an increase, we need to understand the process, the criteria, and the frequency that assurances are being sought.

My questions very briefly are the following.

One, why are current funds inadequate?

Second, what kind of activity increase is being envisaged, if such activity increase is being envisaged, and in particular to any particular countries where diplomatic assurances are viewed as likely to be necessary more and more?

Third, it's listed under Courts Administration Service, and I'm having a little bit of a hard time understanding what exactly the use of the funds will be in the diplomatic assurances context. What government actors are involved?

Fourth, is there a written policy or are there guidelines with criteria for determining whether assurances are to be sought, and when they're sought, whether they're adequate?

Fifth, are these assurances in our practice now legally binding? All of these have cost implications.

Sixth, the Supreme Court, in Suresh, places a lot of emphasis on monitoring as one component of reliability of assurances. Is monitoring built into our assurance system, and does that have any cost element for this number?

Last, can I be clear that we never use diplomatic assurances in advance of having already assessed whether there's a substantial risk of torture? That is, you can never just use diplomatic assurances; you have to know what the risk is.

Once I know the answers to these questions, I'll understand why we're looking for $3 million, and I understand we might have to get this information later.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You've asked quite a few questions there, and we'll attempt to get to them.

In terms of why more money is needed, we assess these on a regular, ongoing basis. You might say, well, why don't you just do it once a year and you should be able to figure this out? When we have a look at the ongoing processes and we get feedback from those who are either employed by the Department of Justice or are associated with it, in terms of these various costs...this is the whole supplemental estimates program, to try to make sure it squares with what actually is happening.

A number of issues that you raise, quite frankly, are with Public Safety. Nonetheless, if you're asking about the whole question of assurances, as I indicated in my answer to Mr. Cotler, these are investigated very carefully. We make an assessment of these. For instance, I'm directly involved with extradition in this country. We have people, who I believe have considerable expertise in this area, to look at this very, very carefully, and this is something that we look for. Unless we get those assurances on a number of the issues, as I indicated to Mr. Cotler, that will hold up or stop something.

Sometimes there can be challenges in this when you're dealing with different legal systems around the world, but we're very careful. We're not sending somebody outside of this country unless everything is in place and everything is as it should be in terms of what we are required to do. If you think about it, this is a huge change in status for an individual to be actually removed from a country and moved to another country. I, for one, am very careful with that, as I'm sure all previous justice ministers have been. When we get these requests, it's to make sure that what we're talking about are serious matters that can and will be determined and that there are proper assurances in place.

You ask, how do you determine that? This is the expertise I have with the people around me, and then, ultimately, we have to make those decisions. But I'm confident in the cases that I have been involved with over the last six years that we have fulfilled our responsibilities on that.

Deputy, did you have anything additional on these questions?

[Bill Pentney]

Mr. Chairman, I could just make two quick points, and then I've no doubt we'll come back in a subsequent round.

Very quickly, the premise of the question was that this is entirely new money. This is a renewal of a program that has been in existence since 2008, first, and, second, the money for the Courts Administration Service relates to the cost associated with providing secure facilities, providing administrative support, providing appropriate support to the judges who are dealing with these matters, which is different and unusual compared to the normal work of the court, and for which the Courts Administration Service has not had funding. This is a renewal, through the supplementary estimates, of a program that has been in existence for some time.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair,

I was going to make that point as well. It appears that it's been in place since about 2006-07, at least. Is that fair to say?

[Bill Pentney]

My information is 2008, following a Supreme Court decision.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

It seems to me that the funding components have remained fairly consistent since that time, except for somewhere in the neighbourhood of $6 million, so that would be in that funding envelope.

I noticed there has been some change and reclassification regarding legal aid funding going into the base funding component as well, which may throw some figures off at first glance. Is that fair to say?

[Bill Pentney]

Yes.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Minister, thank you so much for coming today. I want to say that I applaud the position of the ministry, and of course yourself, in relation to your concentration on demolishing organized crime in this country. I want to compliment you on that, sir, because most of the legislation—some 20 bills that have been in place since you've been minister—have in some way or other taken a chunk out of organized crime and its ability to operate in this country.

Also, as a member of the Canadian Bar Association for some period of time, I know that as an association they are not always in lockstep with our government. They, of course, are very independent in their opinions from time to time. I think that is fair to say.

But in relation to the quadrennial commission's key salary recommendations, I noticed that the Canadian Bar Association, the Canadian Superior Courts Judges Association, and others, including the president of the Canadian Bar Association, Robert Brun, have suggested that we have done an exemplary job, not only in the independence from the judiciary of our findings, but also in getting it on track much more quickly so that they have a response.

I quote from Pierre Bienvenu, who represents judges:

The judiciary has been concerned about delayed government responses to past commission reports. I am pleased that the government provided its response to the present commission’s report well within the timeline set by the Judges Act and has quickly introduced legislation to make the necessary amendments to the Judges Act.

Can you comment on that?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I was very pleased to hear that. It shows that there has been considerable analysis of what we are doing. As you know, we included in the budget implementation bill that's presently before Parliament our response to the quadrennial commission because, among other things, I wanted to move quickly on that.

We accepted the main recommendation that there be no general salary increase for Canada's Superior Court judges beyond the indexation that is mandated, as you may know, by the Judges Act. We understand that judges have to be compensated in a manner that will attract outstanding individuals who are prepared to serve on the Superior Court benches in this country, and while all governments are under pressure for financial restraint, we have to strike that appropriate balance. I believe we've done that with the response to this.

I agree that we should move as quickly as possible to respond to these commissions. That is only fair, and that is consistent with the role the judiciary plays and the role Parliament plays. So as you can see in our response to the quadrennial commission, the timelines have been moved up. This has been well received, and quite frankly, I was very pleased at the comments, as you pointed out, by the president of the Canadian Bar Association and others who have had the opportunity to have a look at that. I think it strikes the right balance, and we can all be very proud of the independent judiciary of this country. We all have a role to play in being supportive of that, while at the same time ensuring that the judiciary maintains its independence, and that balance is the one that we attempt to strike. I believe we have done that. Again, the quadrennial commission is something that we have responded to in a timely manner, and I think that was appropriate under the circumstances.

Thank you.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Congratulations for that, Minister.

I only have a minute left, but I notice that among the three largest components of the total net increase for the 2012-13 supplementary estimates (B), the first is, as Mr. Cotler pointed out, “the delivery of immigration and refugee legal aid in provinces”, and as well, “court-ordered counsel in federal prosecutions”, which is about $14.3 million.

The “Funding for the Aboriginal Justice Strategy” is the second largest component, and the third is, as Mr. Cotler noted, “Funding to address challenges in the management of security inadmissibility” and safety generally for inadmissible individuals facing the risk of torture.

All of those components are, of course, the largest.

Do you see the aboriginal justice strategy as something that seems to get significant results for aboriginal Canadians?

[Rob Nicholson, Conservative, Niagara Falls, ON]

This is something we analyze on a continuous basis, as is appropriate with all government programs. My analysis of it on a year-to-year basis is that it's effective in providing culturally sensitive assistance to aboriginal Canadians who have become involved with the criminal justice system.

Important as well is the reduction in recidivism rates. We all have an interest, whether aboriginal or not, in helping people who have become involved with the criminal justice system to do what is possible to ensure that they're not back in. It is on that basis that we renewed the funding for this fiscal year, and as you see, it is part of what we have here as supplementary estimates.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

I want to clarify, Mr. Pentney, that I'm well aware it's not a new program. What I'm talking about is new money in the supplementary estimates. My question, to which I'd like an answer a little more precisely, is why we need an extra $3 million under this head.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm sorry, Mr. Scott, which area did you mention?

[Craig Scott, NDP, Toronto—Danforth, ON]

We're looking again at “Funding to address challenges in the management of security inadmissibility, protect classified information...and obtain assurances against torture”.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, these are the estimates that have been given to me by the department for their ongoing responsibilities in this area. It's a very sensitive area, an important area, so they have been tasked, as you will hear in the second hour of this, in answer to....

I appreciate that you had quite a few questions. I was satisfied that their estimates as to what they will need and what to continue on were reasonable under the circumstances, so I had no hesitation in including that—

[Craig Scott, NDP, Toronto—Danforth, ON]

Is it your understanding, Mr. Minister, that there is not any particular new need for, say, assurances in cases involving potential torture, that there is not an upsurge in the likelihood of its being needed? That's really where my question is going.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We always hope that these things aren't needed, in the sense that we'd like to see a reduction in the kinds of issues that require this. But that being said, this is an ongoing matter, and I indicated, I think in some detail, how careful we are when we seek assurances when we do this.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

Did I understand you correctly, when you gave the example of extradition, that Mr. Kenney's ministry would be involved in seeking diplomatic assurances as well, but that it is in your ministry that the actual process of seeking assurances goes on in extradiction cases? Or is it done elsewhere?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's within my department. When we receive a request, for instance, from a foreign country to extradite somebody from Canada, this is part of the discussions that go on between the two countries. The country will, among other things, obviously, set out what the charges are, what the circumstances are surrounding the issues, and why it is that they want an individual.

On the other hand, it's up to us to consent to that, and one of the things we look at, among other things, is the seriousness of the crime. We're not going to extradite somebody for a very minor incident—or for something that is not a crime in Canada; that's another level of it. But the assurances have to be a part of it.

The best example, of course, is that if it's a jurisdiction—for instance, if it's one of the American states—that has a death penalty, we seek those assurances. We have to be satisfied that that individual is not going to face the possibility of a death penalty if convicted. That's part of the process, and we have to have those assurances or we will not send somebody out of this country. As I indicated to you, being removed from a country is a very important thing in the life of somebody.

[Craig Scott, NDP, Toronto—Danforth, ON]

I appreciate that. Thank you.

The clarification I need is whether, on the assurances or the agreement between the two countries, you as minister sign off or whether that is done somewhere else.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I do. I actually sign the document of extradition. Generally it's accompanied, if there's a solicitor involved...or a letter to the individual explaining what my decision is. But the actual document is signed by me on behalf of....

[Craig Scott, NDP, Toronto—Danforth, ON]

That helps a lot.

The Courts Administration Service bundle with respect to that process—not to get too far into the officials side of our time.... If we take an example of, say, somebody who has been sought for extradition to Sri Lanka—we know there is a history of torture there, and Minister Baird has made it very clear he is very concerned with the human rights situation there—it would come to you on an assurances issue.

Where would the cost be incurred in the system as it exists and with respect to the extra money you are looking for?