Evidence of meeting #123 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was interpretation.
A recording is available from Parliament.
Conservative
Larry Brock Conservative Brantford—Brant, ON
The answer is no.
Would the minister consider a similar approach to victims' rights as is being proposed in this bill? Specifically, will the minister reinforce the primacy clause in the Canadian Victims Bill of Rights to ensure that the rights of victims are considered, upheld and supported by courts and other criminal justice professionals in every interaction with the criminal justice system, yes or no?
Liberal
The Chair Liberal Lena Metlege Diab
Mr. Brock, your time is up, but I am going to allow equal time as that last question for the minister to respond. It was about 23 seconds.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
My team is reviewing the review of the Canadian Victims Bill of Rights that happened at this committee, I believe, two years ago. A lot of healthy proposals were suggested at that point.
We are always looking to ensure that victims' voices are empowered and that their rights are given primacy in our system.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you, Minister. That didn't take that long. We appreciate that.
Mrs. Brière now has the floor for six minutes.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you, Madam Chair.
Mr. Minister, welcome to the Standing Committee on Justice and Human Rights. Thank you for giving us this hour.
I'm going to ask questions about Bill S‑13.
Why was the non-derogation clause previously used on an ad hoc basis?
Liberal
Arif Virani Liberal Parkdale—High Park, ON
First of all, with respect to my first response to Mr. Brock, I'd like to say that I take the demonstration of anti-Semitism in Montreal very seriously. I've spoken in the House and I'll say it again today: What we saw in Montreal is absolutely unacceptable.
With respect to your question, I would point out that, over the past 40 years, one law at a time, we had to find a compromise regarding the language used to show that we weren't going to derogate from the indigenous rights protected by the Canadian Constitution. What changes with Bill S‑13 is that we are proposing an amendment to the Interpretation Act that will have a broader application and affect any bill and any statute adopted by the federal government.
That will help us in terms of the effectiveness and consistency of the language we use, because we have observed an inconsistency in that regard over the past 40 years. The language used in a bill 15 years ago is not the same as the language used, for example, 15 months ago.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you.
Bill S-13 covers 26 existing statutes. But three of them won't be affected by the bill. Why are those three acts not affected? Why is the Indian Oil and Gas Act left out?
Liberal
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
We're not talking about the Indian Oil and Gas Act. My question is twofold. Why are we not targeting those three acts and, in particular, the Indian Oil and Gas Act?
Liberal
Arif Virani Liberal Parkdale—High Park, ON
I'll let Laurie Sargent answer your last question.
With respect to your first question, we did a lot of consultations for more than two years with indigenous communities, among rights holders. The overriding principle we followed was that nothing should be decided for indigenous people without their participation.
We listened to the rights holders.
In their particular situation, they always wanted to safeguard their own non-derogation clause because it affects their rights, their treaties as such. We decided to maintain their own non-derogation clause. For the most part, they decided that the new comprehensive provision was much better, but in three very specific cases, the decision was made to keep the existing provisions.
I'd ask Laurie to answer the second question.
Laurie Sargent Assistant Deputy Minister, Indigenous Rights and Relations Portfolio, Department of Justice
Thank you for the question.
The Indian Oil and Gas Act is a fairly old act. Of course, the non-derogation clause is different from the one we're amending. There is a whole history to this legislation. Because the provision isn't equivalent and recognizes different rights from section 35 of the Constitution, we decided that it should be set aside for the time being. Obviously, this act could be reviewed in the future. In any event, the provision that will be in force, if Bill S-13 is passed, will be used to interpret that legislation in the future.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Mr. Minister, you said in your speech that this was an important step towards reconciliation and that we were obviously working to respect the rights of indigenous peoples. Can you tell us a little bit more about that?
Liberal
Arif Virani Liberal Parkdale—High Park, ON
For example, the bill affects one aspect of the United Nations Declaration on the Rights of Indigenous Peoples Act. We've also put in place an action plan that deals with this bill and that requires us to move forward with this provision. So this affects one of our task lists.
Since this motion was unanimously adopted in the House last week, it shows very clearly that, for all parties, it's important to always ensure that we don't derogate from laws that protect indigenous rights, whether it's constitutional legislation or treaty legislation, some of which was passed 200 years ago. So it's symbolic, but it also affects the interpretation of the laws. When a court looks at a situation, if there's an interpretation that says indigenous rights will be abrogated and another interpretation that always preserves those rights, the court will always choose that interpretation. We'll interpret our own laws in light of that latter interpretation, which protects those rights.
It's extremely important for all the indigenous peoples we consulted, whether it be first nations, Inuit or Métis, to pass this amendment and advance reconciliation.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you very much, Mrs. Brière.
Mr. Fortin, you now have the floor for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Good afternoon, Mr. Minister. Welcome to our committee.
I read Bill S‑13. If I were to summarize it in a few sentences, I'd say that its purpose is to ensure that existing laws respect the indigenous rights and treaties that are included, recognized and affirmed in section 35 of the Constitution Act, 1982. How will Bill S‑13 affect what is already in section 35 of the Constitution?
Liberal
Arif Virani Liberal Parkdale—High Park, ON
That's a good question. It removes the burden on indigenous peoples. Every time we decide to introduce a bill, we have to emphasize that a non-derogation clause must be included. This bill removes that burden.
It also gives force to the Constitution, since this provision will apply in every interpretation of our laws, especially in the case of a judicial review or a dispute where the judge must assess a bill. The purpose of this bill is to properly guide the choice of interpretation that protects indigenous rights.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Mr. Minister, if I had to plead for respect for the rights of indigenous communities, it seems to me that I would start with the Constitution. Correct me if I'm wrong, but in my opinion, the best protection is to enshrine a right in the Constitution. It becomes a right that takes precedence over any other right or statutory provision. So I have trouble imagining what this amendment to the Interpretation Act will add to the protection that the Constitution Act, 1982 already provides.
Liberal
Arif Virani Liberal Parkdale—High Park, ON
That's a good question, Mr. Fortin, but I'd like to point out two things.
First of all, you're absolutely right that the Constitution is paramount, regardless of democracy.
Second, there are aspects directly related to the act, such as those protected by section 35 of the Constitution. In my opening remarks, I mentioned the Sparrow decision, which talks about whether or not a waiver can be justified; it's a very specific context. The bill tells any judge in any part of the country that when they are responsible for interpreting a federal law, they must always choose the interpretation that protects the indigenous rights referred to in section 35.
That's not the case right now. Over the past 40 years, a non-derogation clause had to be put in place one law at a time. That burden had to be eliminated and judges had to be helped.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
You say that this had not been the case until now, but section 35 exists. I suspect it was passed from the very beginning, in 1867. This section has been around for a long time, but I don't know the exact date. Therefore, I'm not sure I fully understand the usefulness of Bill S‑13. Quite frankly, it seems to me that the protection afforded by section 35 of the Constitution Act, 1982, is more important.
That being said, there are other elements that raise certain questions. If I understood you correctly, you said that this will help strengthen relations with indigenous communities and advance reconciliation. I'd like you to tell me about that before my time is up. How will Bill S‑13 advance reconciliation with indigenous communities? Is there a demand for that? Did any of the representatives of the indigenous communities tell you that section 35 of the Constitution wasn't enough? Were they unanimous in that regard?
Liberal
Arif Virani Liberal Parkdale—High Park, ON
Indeed, they were unanimous, except for the three groups I just mentioned in response to Mrs. Brière's question.
Second, we consulted a number of groups, a number of rights holders as such, and they all asked us for that.
My third point is to reassure them that their rights will be protected in any federal bill, and interpreted in that context.
I can tell you about a case that took place in British Columbia, which may be a useful guide for you. That dispute concerned the rights of a mining company. The judge's decision was influenced by the fact that the provincial interpretation law requires that indigenous rights enshrined in the Constitution and the treaties always be protected. It's the Gitxaala decision, and I can provide you with the Internet link to that case law.
Such a mechanism can help provincial courts. At the federal level, we will add this assistance and tool.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you very much.
We'll now go to Mr. MacGregor for six minutes.