Justice Committee on Dec. 9th, 2014

[Ian McCuaig]

Oh, yes, but that's absolutely beyond the kind of thing that I would be—

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Would you say that the Bank of Canada is accessible about those and—

[Ian McCuaig]

Oh, yes, absolutely. For any government or related institution in Canada, I don't think there are any problems with accessibility on that.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

Just last, in the point of proposed section 18.6, it does say specifically “that an administrative sanction”. Administrative means, obviously not the Criminal Code, but it means an administrative sanction that is authorized under the regulation. So I can understand.... Let's remind ourselves that this does not exist right now, and the fact is that, if there was incorporation by reference to a particular—

[Ian McCuaig]

A Canadian Environmental Protection Act offence is the exact kind of administrative sanction that this is talking about—

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

But that does not exist right now.

[Ian McCuaig]

No, it does exist right now. It's in the Canadian Environmental Protection Act and it's in the regulations and it's—

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

But if you read proposed section 18.6, it specifically says it can be if under certain conditions.

[Ian McCuaig]

Oh, absolutely, I agree. This exception is—

[The Chair, Conservative, Mike Wallace]

Okay, thank you very much for those questions and answers.

Our final questioner for this afternoon is Madam Boivin from the NDP.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

I think this group of witnesses has done a good job of identifying the concerns.

What I have gathered from your respective testimony, Ms. Proud, Mr. Walter and Mr. McCuaig, is that everyone agrees on Bill S-2, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.

We understand the idea of modernization and how quickly regulations, agreements and similar documents are prevailing in Canada. Of course, this process is not easy. I listened with interest to the questions of my colleague, Mr. Albas, as both of us were sitting on the Standing Joint Committee for the Scrutiny of Regulations at the same time. Other individuals around this table have perhaps also been members of that committee.

To outside observers, that committee may appear to be the most useless of all, but that is because those individuals don't understand what happens in the committee. Once on the inside, however, we understand that this committee is probably the most important one, after the Standing Committee on Justice and Human Rights. That's at least how I see things. That is where the necessary parliamentary scrutiny and control take place.

One of the issues the joint committee has always raised concerning ambulatory incorporation by reference

—that's “ambulatory”, in English—

was accessibility. We are talking about accessibility and using the term “otherwise accessible”. However, the term “accessible” is not very clear, and I'm not sure that “otherwise accessible” is any clearer. It's a matter of determining how it would be possible to apply the power granted under the Statutory Instruments Act.

How can we ensure that this verification will be done in a parliamentary context?

Correct me if I'm wrong, but I think regulations incorporated by reference can still be reviewed and analyzed. However, that is a bit elusive. That's one of the problems.

Isn't this a way to bypass the role and work of our joint standing committee, here in the House of Commons.

You also talked about the need to have

what you call Treasury Board guidelines on what it is. We need definition of accessibility, knowing about the changes.

This is an approval of Bill S-2, but with a big caveat that we still need this. Will it work without those guidelines or is it going to be a free-for-all in a very short time?

[The Chair, Conservative, Mike Wallace]

Who would you like to answer that question?

[Françoise Boivin, NDP, Gatineau, QC]

I want the answer from everybody.

[The Chair, Conservative, Mike Wallace]

Who would like to start?

Madam Proud.

[Karen Proud]

I'm happy to start off. Maybe I'll start with your second question first.

As we're all aware, this is a practice that is going on currently. Incorporation by reference is a tool that is being used by many departments. A dynamic or ambulatory reference is being used, and—I speak on behalf of my organization and my members—so far it works fine. The sky has not fallen, and we have not had major issues, and frankly, incorporation by reference has solved a lot of problems that we have had in the past.

This being a very broad and perhaps new authority for many departments, without the oversight that we're all, I think, suggesting in some shape or form, it could be problematic.

Inconsistency is one thing that drives industry crazy. Inconsistency in how governments apply things that are the same in different ways drives us crazy. Without the oversight and without the guidance from Treasury Board, we're going to run into the sort of situation sooner rather than later in which departments are picking and choosing how they do incorporation by reference.

It's very important that we have that oversight before these authorities are being used widely, especially within departments that have not had the experience using them that some of the departments we deal with have had and have so far done quite well with.

[The Chair, Conservative, Mike Wallace]

Mr. Walter, a succinct answer would be great.

[John Walter]

I agree with what she said. Is that succinct enough?

[The Chair, Conservative, Mike Wallace]

It's succinct.

[John Walter]

Let me add very quickly to it. You spoke about the ability of Parliament or of committees to oversee the use of changes to regulations. I can only tell you that the standards world is changing faster than I've ever seen in the last 20 years. To keep up with new technology, new standards are being brought forward all the time.

I can only repeat Ms. Proud's assertion that the guidelines are needed to help ensure that the right processes are followed. Incorporation by reference is absolutely 100% necessary. We just have to make sure we do it consistently.

[Françoise Boivin, NDP, Gatineau, QC]

I do think everybody agrees on that.

My only fear is that it was already very hard to get the information at the scrutiny committee, and sometimes it was the ministry that was taking six months, nine months, a year even, to give the committee the information that they needed. I'm thinking that when you don't know where the information is, it might be complicated.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions.

Thank you to our witnesses.

We're going to suspend in one moment, but before we do, we have budget requests for Bill S-2 and Bill S-221.

Those budgets have been moved.

(Motions agreed to)

Thank you very much.

We will suspend for a few minutes as we switch over to the next panel.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, I'm going to call this meeting back to order.

We're in our second half, and we've been joined by our justice officials to talk about the clause-by-clause study.

Madame Boivin had asked me previously if she could have the floor, so I'm giving it to her.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

You will recall that, on Thursday, almost two weeks ago, following a motion moved by Mr. Casey regarding the Supreme Court's appointment process, I proposed another motion. I gave the government the benefit of the doubt. I was twice told by the committee's government members that they might support my motion. So I did this in good faith, and I am sure everyone has done the same and invested the necessary efforts.

However, I will use the few minutes I have to plead with the Conservative members on this committee. They are Dan Albas, Blaine Calkins, David Wilks, Robert Goguen, Bob Dechert and our chair, Mike Wallace. To my knowledge, we make our own decisions. The motion I put forward reads as follows:

That the Committee undertake a study on the best transparent process for the nomination of judges in all courts under federal jurisdiction, including the Supreme Court of Canada; and that the Committee reports its findings to the House.

If I may say so, I think that this is a common-sense motion. I'm not saying that because I moved it, but because I think it is non-partisan. It does not prejudge the decision the committee may make following its consideration and imposes no time pressure.

I am very aware of the government's agenda and the bills before this committee. Nevertheless, this is a relevant study in light of what we have experienced since 2011, when I became a member of this Parliament. A number of appointments have been made to the Supreme Court since then. However, there are many vacant positions in the superior courts of various provinces. The staffing of those positions is already included in the budget. I think it is time to do something about this.

In Quebec, we lived with Bastarache Commission in a specific context. We have reviewed the way appointments are made to try to be as non-partisan as possible, in order to ensure to do exactly what the Minister of Justice constantly answers when I ask him about this during House of Commons question periods. I also think that this is truly at the forefront of the accessibility to the justice system issue. The impression Canadians have of justice and the actual justice system is also something to consider. There is often nothing worse than impressions and rumours that do not reflect reality.

When people start to believe that their justice system is somewhat partisan—whether or not that is true—it may be time to stop and reconsider. Studies were carried out on this issue over 10 years ago. Attempts were made to operate in a certain way, but those attempts were interrupted in the middle of the process. All sorts of suggestions have been made, but even specialists do not agree on those issues.

I have no preconceived ideas. Of course, I have some ideas, but I am still hoping that we will someday manage to find a system that, as the minister says, will bring together the most qualified people—in other words, a system where people would not have the slightest doubt about the individual hearing their case.

As all lawyers around this table know, there is nothing more frustrating than having to tell your client, in court, that the day will be difficult because of anything having to do with the judge. We should at least be able to count on complete judicial impartiality. That would actually be good for judges, as well, since they are the primary targets of any public criticisms.

The message I would like to send through this motion is that it is time to at least commit to beginning the process. Although the Department of Justice and the Minister of Justice do not agree, and neither does the Prime Minister, as we often say, committees are masters of their responsibilities, their own procedure and their files.

At some point, we have to stand behind our comments. I think that, if we are independent, despite the Conservative majority, we have to have the courage of our convictions when we believe in something. I think this study is necessary. Some specialists are already considering this, and all sorts of seminars are being held.

It seems to me that, as our constituents' leaders and representatives, we should not be trailing behind all the constitutional experts, lawyers and commentators of the country. We should rather be at the forefront and should undertake this study. I dare hope that my colleagues will vote on the basis of their own convictions and acknowledge the common sense underlying this motion.

We may not even have the time to carry out the study, given all the files we have to consider. However, the Standing Committee on Justice and Human Rights should at least commit to undertake this study, whenever it can find the time, or to commission specialists to carry it out, so that people from all backgrounds, across the country, can submit briefs to us on this issue. I think that goes without saying.

We all know that this is the Governor in Council's prerogative. However, all party leaders have practically committed to make changes and to make the process as open and transparent as possible. However, we see that this has not really happened. That may be the best method, but a study on the topic should at least be carried out again.

This is the motion I am putting forward.

[The Chair, Conservative, Mike Wallace]

Thank you, Ms. Boivin.

Our next speaker to this motion is Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I want to thank my colleague for her motion. This is obviously a very large-scale motion. It calls for us to review the judicial appointment process, not only in the Supreme Court, but in all courts under federal jurisdiction. Yes, we know full well that this is the prerogative of the Governor in Council.

I am wondering whether it would not make more sense to move this motion in the House on an opposition day.

This issue, which is very touchy, should be debated in that arena, in my opinion. That way, the context would be entirely democratic and less restrictive than in this committee.

As you've mentioned with regard to the schedule, and I mean this quite frankly, voting on this would be somewhat theoretic because we now have two government bills, three private members' bills, and a study. Certainly a study of this nature.... I mean, we're studying the nomination of all judges, not just Supreme Court judges, and that would take a vast number of witnesses and sessions. It's just something that we're never going to get through before the next election.

Quite frankly, the motion would be academic, and despite the merit of it, I don't see it happening.