Evidence of meeting #59 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was international.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Shawn Barber  Acting Director General, Global Partnership Program, Department of Foreign Affairs and International Trade
Matthew Bunn  Associate Professor of Public Policy, Belfer Center for Science and International Affairs, Harvard University
Terry Wood  Senior Co-ordinator, International Nuclear Cooperation, Department of Foreign Affairs and International Trade
Graeme Hamilton  Senior Program Manager / Deputy Director, Global Partnership Program, Department of Foreign Affairs and International Trade
Greg Koster  Counsel, Criminal Law Policy Section, Department of Justice
Carole Morency  Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

5:05 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

—plus the pleadings of the Federal Court decision in Schmidt v. the Attorney General of Canada.

Upon reflection in regard to all of that, and I remain very sympathetic to the motion, the reality is that I think it is improper for a legislative committee to undertake this study for a very simple reason. We are a legislative committee, and our response to any problem, perceived or real...and I don't know if this problem is perceived or real, but regardless, our solution is legislation. And the legislation is there.

If the allegation is that the legislation is not being complied with, I'm not sure what Parliament or a parliamentary committee can do about it. That's a matter for the courts, and this matter is before the court; it has been pled specifically in Schmidt v. the Attorney General of Canada. They will adjudicate it; they will hear evidence, and if there's a section not being complied with, they will do what they need to do.

I'm concerned on sub judice, although I do agree that it's only sort of tangential; it's pled, but it's not the centre of the lawsuit. My main opposition to this motion is that I don't believe that a parliamentary committee such as ours could factor a remedy even if we found that there was a problem. I hope that the documents tabled by the parliamentary secretary dispose of the motion, but if they don't, I will be forced to vote against it.

Thank you, Mr. Chair.

5:05 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you very much.

Our next commentator is Mr. Marston.

5:05 p.m.

NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Thank you, Mr. Chair.

I appreciate the comments as to what the committee can do. Committees are tasked with many tasks, but one of them is to make recommendations to government, not give directions to government.

The standards were what was being called into question, not the specific letter or the word of the legislation. From the standpoint of the standards, and whether or not this committee would look at studying whether the standards that are applied are to the level that they should be, there's some question on that.

Coming out of the discussions and the information that we could get in testimony with a study, we may well be able to make a reasoned explanation or recommendation to the government. I think that was worthy of consideration.

5:10 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you, sir.

Ms. Boivin, go ahead.

5:10 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I will be brief.

I would like to respond to my Conservative colleague. I want to emphasize my appreciation for the fact that he took the time to read the motion. That's what we have to do when serious motions are put forward.

Here's how I have understood the parliamentary secretary's and Mr. Rathgeber's statements. They say that, in any case, the courts would be there to do their job if ever an error was made. That reminds me a bit of what would happen when I was working in labour law and a collective agreement was being drafted. Some people around this table may not agree with me, but I have always said that, when we produce something, we have to make sure it's as perfect as possible, even though perfection is unattainable.

Canada's legal system has rules. Jurisprudence and various other things provide us with tools, unless something totally new is created, in which case we have to go off the beaten track. I can understand that we may have a bit more difficulty in such cases. The best example is that of experts who talk to us about bills introduced by the government or the Senate and say that we have problems. You will tell me that this is their interpretation, but they say that we have problems when it comes to the charter, and that a given provision does not comply with the charter.

That's exactly the type of discussion or debate the Minister of Justice faced when section 4.1 was being studied and Department of Justice experts issued an opinion. I don't think it's appropriate to say that, in any case, the courts will do their job when we get to that stage. On the contrary, we should ensure, to the extent possible, that people subject to trial—those for whom we work, Canadians—do not have to go through the courts to find out whether or not the legislation complies with the charter.

There have been some challenges, and I don't think the fact that they were successful before the courts means that the courts are interfering in the wonderful world of legislative authority. All they are doing is restoring the right. The committee and House parliamentarians should have seen that. Section 4.1 was adopted so that people wouldn't have to go before the courts.

I will tell you the same thing I told my clients when we were drafting a collective agreement. I would tell them that, if I did my job properly, they wouldn't see me again, and if I didn't do my job properly, they would see me again, as all kinds of things would be unclear and there would be grievances arising from interpretation. If we do our job as legislators properly and ensure that our laws are consistent with charters and with the division of powers under the Canadian Constitution, in principle, there shouldn't be any problems.

I find our approach to be a bit casual, and I think we are trusting somewhat blindly if we think that, in any case, the courts will ultimately take care of things. As you and I know, anyone who has had to go before the courts knows how expensive that is. We are familiar with the issues in terms of access to justice. I am not sure I want to say to Canadians that, since the legislation may be illegal, all they have to do is go before the courts and challenge its legality under the charter.

The legal action taken by Mr. Schmidt may be sounding the alarm. That gave us all a bit of a jolt and made us wonder whether the tests are really being carried out properly or, as the parliamentary secretary said, whether the system has always worked well over the past 30 years.

We know that many appeals under the charter have been successful. I would like to say to the parliamentary secretary that all those appeals mean something. If I was the lawyer in charge of the case, I would be asked why I had said this matter made sense, yet our case was criticized by the Supreme Court of Canada. Don't tell me that, over the past 30 years, no appeals under the charter have been successful before the Supreme Court of Canada. On the contrary, we could come up with a whole list.

That doesn't mean that Department of Justice experts won't sometimes say so. I have prepared many such legal opinions, where we say that a given theory makes sense and state what we think is important, but where another argument is possible. At least, we know that the exercise is being carried out.

I'm worried about the fact that we are somewhat indifferent. That concern has made me suggest that the committee view the matter from another angle. I don't think it's enough to say that this is what the law stipulates, this is how things are done, and that, for an argument to pass the test, it must be bona fide and reasonable, likely to be heard and accepted by the courts. Usually, the courts will accept and hear just about anything submitted to them. However, that doesn't mean a careful analysis has really been carried out pursuant to the charter.

I think our obligation is not to rely on the courts in the future, as that does not necessarily contribute to Canadians' well-being. We have to do our work properly from the outset in order to avoid that kind of a situation.

5:15 p.m.

Conservative

The Chair Conservative Mike Wallace

Merci.

Our next commenter is Mr. Mai.

5:15 p.m.

NDP

Hoang Mai NDP Brossard—La Prairie, QC

Thank you very much, Mr. Chair.

I just want to support what my colleague Madame Boivin has been saying.

I'd like to thank the Parliamentary Secretary to the Minister of Justice for her answer regarding the motion. I listened to and I read the answer, and I got the feeling that this is the mechanism and this is how it works, but I'm still not sure what happens in practice. As Madame Boivin mentioned, there are a lot of cases where, with the system that is in place, things have not been checked, or there was something wrong. I think the purpose of this motion and this study is for us to really understand.

Perhaps to speak to what Mr. Rathgeber was saying, I might not have as much experience as a lot of people here, but I was sitting on the finance committee, and we looked at not necessarily just things, specifically, but at getting recommendations to actually find ways to make things easier.

I find that one of the problems with the way the system is right now is that it costs Canadian taxpayers a lot of money. Bringing legislation to court and having the whole issue in front of the court costs a lot of money. It costs taxpayers, whether it's from the federal government perspective or the provincial government or things like that.

There are a lot of issues with respect to that—

5:15 p.m.

Conservative

The Chair Conservative Mike Wallace

Mr. Mai, I can help you out a little bit.

We did check to see if the motion was within the scope of this committee and its function, and it is. So the motion is in order to be debated and....

5:15 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

To be debated and voted upon.

5:15 p.m.

Conservative

The Chair Conservative Mike Wallace

Yes.

5:15 p.m.

NDP

Hoang Mai NDP Brossard—La Prairie, QC

I'd like to thank you, Mr. Chair. Hopefully that will answer Mr. Rathgeber.

5:15 p.m.

Conservative

The Chair Conservative Mike Wallace

Okay.

Is there any further discussion on this item?

Mr. Casey.

5:15 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

I won't take long. Mr. Cotler spoke last week, and there'd be nothing I would even be able to express that would hold a candle to the lucidity and completeness of his arguments, but there was one point he wished me to raise, which I simply want to get on the record, in the course of his presentation at the last meeting.

There was some question as to whether or not there was any sort of ceremony to mark the 20th anniversary of the charter. I can advise that on April 17, 2002, there was a special ceremony attended by 1,500 high school students, Prime Minister Chrétien, and Justice Minister Martin Cauchon at the National Arts Centre.

In specific response to a couple of the points raised by Mr. Rathgeber, there have been numerous instances of laws introduced by this government and others that have been found to be unconstitutional. I disagree with his interpretation that this committee can't do anything if the law isn't being followed. It is entirely open to this committee to change the law to some mechanism that is more workable.

Whether the section 4.1 review, as it's presently framed by the people who are doing the review, is the right way to go is something that we should be scrutinizing. Is there a role for the Library of Parliament in this? I think that is fair game for the committee to look at.

I applaud my colleague for the motion, and I'll be voting in support of it.

5:20 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you very much.

Seeing no further discussion, I will call the vote.

5:20 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I call for a recorded vote.

5:20 p.m.

Conservative

The Chair Conservative Mike Wallace

Oh, you want a recorded vote.

5:20 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Yes.

5:20 p.m.

Conservative

The Chair Conservative Mike Wallace

A recorded vote has been called.

(Motion negatived: nays 6; yeas 5)

That's the end of today's agenda.

Just so committee members know, when we return after our break we will be dealing with Bill C-273, the private member's bill from Ms. Fry.

5:20 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Sorry, which one?

5:20 p.m.

Conservative

The Chair Conservative Mike Wallace

It's Bill C-273 on cyberbullying.

If you have witnesses whose names have not been submitted, make sure you get them in so we can make those arrangements for that week. We'll be dealing with it that week.

Thank you very much, and the meeting is adjourned.