Justice Committee on Dec. 1st, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting 41 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of October 31, the committee is meeting to begin its study of Bill C-9, an act to amend the Judges Act.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I would like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your microphone, and please mute yourself when you are not speaking. For interpretation for those on Zoom, you have the choice at the bottom of your screen of either the floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

I will remind you that all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

On our agenda today, we will be proceeding to the clause-by-clause consideration of Bill C-9. If time permits, we will try to continue in camera our progress on our study of the draft report on the government's obligation to the victims of crime.

On our first item of business today, we will have officials from the Department of Justice with us for any technical questions.

I would like to welcome Shakiba Azimi, counsel, judicial affairs section, public law and legislative services sector; and Patrick Xavier, acting deputy director and senior counsel, judicial affairs section, public law and legislative services sector.

If we're ready to start clause-by-clause consideration of Bill C-9, I would like to provide members of the committee with some instructions and a few comments on how the committee will proceed.

As the name indicates, this is an examination of all clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote.

If there are amendments to the clause in question, I will recognize the member proposing each one to explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the bill and in the package that each member received from the clerk. Members should note that amendments must be submitted in writing to the clerk of the committee.

The chair will go slowly to allow members to follow the proceedings properly.

Amendments have been given an alphanumeric number in the top right corner to indicate which party submitted it. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it. During debate on an amendment, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment to an amendment has been moved, it is voted on first. Then another subamendment may be moved, or the committee may consider the main amendment and vote on it.

Once every clause has been voted on, the committee will vote on the short title, the title and the bill itself. If amendments are adopted, an order to reprint the bill may be required so that the House has a proper copy for use at report stage.

Finally, the committee will have to order the chair to report the bill to the House. That report contains only the text of any adopted amendments as well as an indication of any deleted clauses.

[Rob Moore, Conservative, Fundy Royal, NB]

You should be done by now.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

I know we are all pretty well versed in this, but I feel that it's still my duty to go through it.

To begin the clause-by-clause study, the chair calls clause 1.

(Clauses 1 to 11 inclusive agreed to)

(On clause 12)

We have amendment NDP-1.

Mr. Bachrach, do you want to speak to it?

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

I'm happy if you just want to call the vote, but perhaps I should introduce it.

[The Chair, Liberal, Randeep Sarai]

Go ahead and introduce it.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

Thank you to the committee for allowing me to sit in for my colleague, Mr. Garrison. I'll do my best here.

NDP-1 is an amendment that Bill C-9, in clause 12, be amended by replacing the line 13 on page 6 with the following:

alleges sexual harassment or that alleges discrimination—or improper conduct that is substantially similar to discrimination—

I believe this was based on a concern brought to the committee by the National Council of Canadian Muslims, which appeared before you as a witness during the consideration of Bill C-9.

The goal here, if I understand it correctly, is to avoid complaints being summarily dismissed at the screening stage. It's to ensure that complaints are heard and investigated through that first stage, to increase public confidence in the process. I think that's a summary of why that amendment was brought forward.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Okay.

Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I'm just wondering if we can hear from counsel on this.

[The Chair, Liberal, Randeep Sarai]

Sure.

Would either one of you, Ms. Azimi or Mr. Xavier, want to comment on this?

[Patrick Xavier, Acting Deputy Director and Senior Counsel, Judicial Affairs Section, Public Law and Legislative Services Sector, Department of Justice]

Sure. I'm happy to comment on it.

I think the term “substantially similar to discrimination” is a bit vague. It doesn't really have a clear legal meaning, so it's discrimination or it's not. For something that is “substantially similar” to it but is not discrimination, exactly what that means and how it could constitute misconduct would seem a bit unclear.

We're not aware of any kind of instrument that would define what constitutes “substantially similar to discrimination” and how it might constitute misconduct.

[The Chair, Liberal, Randeep Sarai]

Is there any other debate on this?

Mr. Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I just have a question for counsel.

Could we drop the second part of that so that all it reads is “alleges sexual harassment or that alleges discrimination”?

[Patrick Xavier]

I think the clause already reads, “that alleges sexual harassment or discrimination on a prohibited ground within the meaning of the Canadian Human Rights Act”. I think that would revert the provision to the original wording.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

The question is whether it changes the import to drop the phrase that includes the term “substantially similar to discrimination”.

[Patrick Xavier]

Yes, if that term were dropped, then so long as we retain discrimination on a ground as set out in the Canadian Human Rights Act, that would be fine. That provides a clear legal standard that screening officers can assess complaints against.

[The Chair, Liberal, Randeep Sarai]

I guess we'll vote on this, Mr. Clerk. There's no further debate.

Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I guess my point, Mr. Chair, is that this is not very clear. I think it will complicate the definition. I think, as counsel has indicated, it wouldn't give the clarity that's required for the intention of the amendment.

Certainly overall, in the context of the bill, I think it will render the overall definition to be incomplete and would not give the clarity required for the decision-maker in this process.

[The Chair, Liberal, Randeep Sarai]

Do we want to vote?

Mr. Bachrach.

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

I believe the intention was to avoid an overly prescriptive definition at the very first stage, so that the preliminary investigation could then gain greater clarity in terms of whether it indeed fit the more specific legal definitions that counsel has indicated.

The concern is if there's a case where it's unclear if it meets the specific definition, that the bill should err on the side of moving those complaints through to the first stage of investigation as opposed to dismissing them and excluding them from the process, based on limited information at that initial, pre-investigation stage.

I believe that's the intention.

[The Chair, Liberal, Randeep Sarai]

If there are no further comments, I guess we'll go to a vote on it.

(Amendment negatived)

We'll go to NDP-2.

Would you like to introduce it?

[Taylor Bachrach, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

NDP-2 is an amendment that Bill C-9, in Clause 12, be amended by adding after line 31 on page 6 the following:

(2) If the reviewing member dismisses the complaint, they shall inform the complainant in writing of their decision and the reasons for it.

The rationale here is that the complainant should be given full and complete information on the reasons for the decision, not simply a summary of the reasons and the decision itself.

[The Chair, Liberal, Randeep Sarai]

Is there any debate?

Go ahead, Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Again, I would seek some clarity from counsel on this.

[The Chair, Liberal, Randeep Sarai]

Sure.

Go ahead, Mr. Xavier.

[Patrick Xavier]

What this amendment seems to do is codify the existing procedural fairness obligation of the council to provide the complainant with notice of the decision, and the reasons for the decision. That's already a right complainants have.

The thinking behind proposed section 87 under clause 12, which requires the CJC to set up a policy on how to notify complainants about the outcomes of decisions, is this: The CJC would establish the policy, then the policy would come under review by the federal courts whenever a complainant applies for judicial review of the council. If the policy is found deficient in some way, it could simply be amended and corrected. You would therefore have an evergreen document that could evolve with the law on the duty of procedural fairness, as owed to complainants. That was the thinking.

The federal courts have already been clear that complainants have this right, so the CJC's policy will have to reflect this right. Whether or not to codify it in the statute is, of course, entirely up to this committee. There's no harm in it.

One thing the committee might consider turning its attention to is the possibility that.... As it is, it might be useful to add a caveat that the reasons should not include any personal or confidential information, or information that might not be in the public interest to disclose. The only reason it might be useful to add a caveat like that is because.... You see that caveat de facto added in other parts of the bill. If the report of a hearing panel is required to be made public, there's always the possibility of redacting it, in accordance with the public interest reasons for issuing a publication ban or holding a hearing in camera. That's to ensure confidentiality, or the public interest reasons for holding hearings in camera or issuing publication bans, can be respected, in terms of what's issued publicly. It might be useful to add a caveat here that personal or confidential information should not be released.

It might also be useful to note that the same alleged misconduct—I mentioned this the last time I was here—can provoke a complaint from a wide variety of complainants. The victim of the misconduct can complain, people who have direct knowledge of events can complain, and members of the general public who hear about it in the news can complain. Arguably, not all complainants are necessarily entitled to the same level of reasons. It depends on the context, so adding a caveat that personal or confidential information should not be disclosed might be helpful, in terms of allowing the CJC to tailor the reasons accordingly.