Justice Committee on March 21st, 2024

[The Chair, Liberal, Lena Metlege Diab]

Good morning.

I call the meeting to order.

Welcome to meeting number 99 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on February 15, the committee is meeting in public to study the subject matter of the supplementary estimates, 2023-24, under the Department of Justice.

Today's meeting is taking place in a hybrid format. Members are attending in person in the room and remotely using the Zoom application.

Witnesses are all attending in person today. The members attending by video conference have been sound-tested and are aware of our procedure, including interpretation, so I won't go through that lengthy explanation this morning.

I want to inform the members that we're studying the subject matter of the supplementary estimates for the first hour. There will be no votes on the items.

I want to welcome today the Honourable Arif Virani, Minister of Justice and solicitor general of Canada.

It's not solicitor general. Solicitor general was back in the 1980s. The reason I know that is that I was in high school and I participated in the first model Parliament. I was nominated or elected—I don't know if it was a nomination or an election—as the solicitor general. After that, they deleted solicitor general from the books.

Welcome Attorney General.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Was Mr. Virani already a member of Parliament at that time?

[The Chair, Liberal, Lena Metlege Diab]

I'm not sure he was even born.

Also, with Minister Virani, we have officials assisting us today.

Thank you for being here.

We have with us Shalene Curtis-Micallef, Deputy Minister and Deputy Attorney General of Canada; Michael Sousa, Senior Assistant Deputy Minister, Policy Sector; Bill Kroll, Chief Financial Officer and Assistant Deputy Minister, Management Sector; and Elizabeth Hendy, Director General, Programs Branch, Policy Sector.

Welcome to you all.

Thank you all for being with us today.

We will do the normal round of questioning and I will call witnesses.

Before we start, I want to say to the minister and his department that the letter was received from Nova Scotia Legal Aid thanking us for the support of a project for supporting racialized inmates incarcerated in federal and provincial correctional institutions in Nova Scotia. I want to put that on record.

Minister, you're ready to make a statement first. Please proceed.

[Arif Virani, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Chair, and members of the Committee.

Thank you for inviting me to join you today.

I would like to begin by acknowledging that we are meeting on the traditional unceded territory of the Algonquin Anishinaabe Nation.

As I am sure you have seen, a few weeks ago, I introduced Bill C‑63, the Online Harms Act. I want to both explain the vital importance of the Online Harms Act and dispel misunderstandings about what it does and doesn't do.

The premise of this legislation is simple: we all expect to be safe in our homes, neighbourhoods and communities. We should be able to expect the same kind of security in our online communities. We need to address the online harms that threaten us, and especially our children, every day.

Let me start by talking about our children.

There are currently no safety standards mandated for the online platforms that kids use every day. In contrast, my children's LEGO in our basement is subject to rigorous safety standards and testing before my two boys get their hands on it. I know that these days my children spend much more time online than playing with their LEGO. The most dangerous toys in my home right now and in every Canadian home are the screens our children are on. Social media is everywhere. It brings unchecked dangers and horrific content. This, frankly, terrifies me. We need to make the Internet safe for our young people around the country.

As parents, one of the first things we teach all of our kids is how to cross the road. We tell them to wait for the green light. We tell them to look in both directions. We trust our children, but we also have faith in the rules of the road and that drivers will respect the rules of the road. We trust that cars will stop at a red light and obey the speed limit. Safety depends on a basic network of trust. This is exactly what we are desperately lacking in the digital world. The proposed online harms act would establish rules of the road for platforms so that we can teach our kids to be safe online, with the knowledge that platforms are also doing their part.

Now, let's talk about hate crimes.

The total number of police-reported hate crimes in Canada has reached its highest level on record, nearly doubling the rate recorded in 2019.

Police across the country are calling the increase “staggering”. Toronto Police Chief Myron Demkiw said this week that hate crime calls in Toronto have increased by 93% since last October. Communities and law enforcement have been calling on governments to act.

Bill C-63 creates a new stand-alone hate crime offence to make sure that hate crimes are properly prosecuted and identified. Under our current legal system, hate motivation for a crime is only considered as an afterthought at the sentencing stage; it is not part of the offence-laying itself. The threshold for criminal hatred is high. Comments that offend, humiliate or insult do not hit the standard of hatred. They are what we call awful but lawful. The definition of hate that we are embedding in the Criminal Code comes straight from the Supreme Court of Canada in the Keegstra and Whatcott decisions. We did not make up the definition of hatred that we are proposing.

It has been disappointing, though not surprising, to see the wildly inaccurate assertions made by some commentators about how sentencing for this new hate crime provision would work. I have heard some claim that, under this provision, someone who commits an offence under the National Parks Act would now be subject to a life sentence. That is simply false.

In Canada, judges impose sentences following sentencing ranges established through past decisions. Judges are required by law—and every member of this committee who is a lawyer will know this—to impose sentences that are proportionate to the offence committed. In other words, the punishment must always fit the crime. If judges impose sentences that are unfit, we have appeal courts that can overturn those sentences.

You may be asking, “Well, why not specify that, Minister? Why put a maximum sentence of life in the new hate crime offence-laying provision?”

Let me explain.

First, it's important to remember that a maximum sentence is not an average sentence; it's an absolute ceiling.

Second, the new hate crime offence captures any existing offence if it was hate-motivated. That can run the gamut from a hate-motivated theft all the way to a hate-motivated attempted murder. The sentencing range entrenched in Bill C-63 was designed to mirror the existing sentencing options for all of these potential underlying offences, from the most minor to the most serious offences on the books, such as attempted murder, which can attract, right now, a life sentence.

This does not mean that minor offences will suddenly receive extremely harsh sentences. This would violate all the legal principles that sentencing judges are required to follow. Hate-motivated murder will result in a life sentence. A minor infraction will certainly not result in it.

Another criticism I have heard is that this bill could stifle freedom of expression. This is simply not true. On the contrary, this bill strengthens freedom of expression. There are people in Canada who cannot speak out because they legitimately fear for their safety. When they speak out, they are mistreated and subjected to truly despicable threats, intimidation and harassment.

This is carefully balanced. We consulted. We looked abroad.

We do not automatically take down material within 24 hours except for child sexual abuse material or revenge pornography. We do not touch private communications. We do not affect individual websites that do not host user-generated content.

This bill protects children and gives everyone the tools they need to protect themselves online. We do not tolerate hate speech in the public square. Nor must we tolerate hate speech online.

We have seen the consequences of unchecked online hate and child sexual exploitation. Ask the families of the six people killed at the Quebec City mosque by someone who was radicalized online.

Ask the young boy orphaned by the horrific attack on four members of the Afzaal family in London, Ontario. Ask the parents of young people right across this country who have taken their own lives after being sextorted by online predators.

Finally, let me set the record straight on the peace bond provision in Bill C-63. Peace bonds are not house arrests. Peace bonds are not punishments. Peace bonds are well-established tools used to impose individually tailored conditions on someone when there is credible evidence to show that they may hurt someone or commit a crime. The proposed peace bond here would operate very similarly to existing peace bonds.

As an example, if someone posts online about their plan to deface or attack a synagogue to intimidate the Jewish community, members of the synagogue could take this information to the police and the court. They could seek to have a peace bond imposed after obtaining consent from the provincial attorney general. Decades of case law tell us that conditions must be reasonable and linked to the specific threat. Here conditions imposed on the person could include staying 100 metres away from that synagogue for a period of 12 months. If the person breached that simple condition, they could be arrested. If they abided by the conditions, they would face no consequences.

I ask you this: Why should members of that synagogue, when facing a credible threat of being targeted by a hate-motivated crime, have to wait to be attacked or to have a swastika graffitied on the front door before we act to help them? If we can prevent some attacks from happening, isn't that much better? Peace bonds are not perfect, but we believe they can be a valuable tool to keep people safe. In the face of rising hate crime, our government believes that doing nothing in an instance like this would be irresponsible.

I think that's what explains both CIJA's and the special envoy on anti-Semitism's support of Bill C-63.

As always, I am open to good faith suggestions to improve this legislation. My goal is to get it right. I look forward to debating the Online Harms Act in the House of Commons and following the committee's process as it reaches that stage. I am convinced that we all have the same goal here: we need to create a safe online world, especially for the most vulnerable members of our society—our children.

Thank you for your time.

I'm happy to take your questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

We will now begin the first round.

Mr. Van Popta, you have the floor for six minutes.

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

Thank you, Madam Chair.

Thank you, Mr. Attorney General and all of the rest of the witnesses, for being with us here today.

Mr. Attorney General, you're the top lawyer in the land. It's good to have you here at the justice committee.

Canada is a rule-of-law nation. We function well only if citizens of the nation have confidence in the administration of justice. That's your job. This is true for the criminal justice system, as it is for the civil justice system.

That's why it's so shocking to hear from a credible organization like the B.C. branch of the Canadian Bar Association, in a letter from four years ago that was addressed to your predecessor, Mr. Lametti, the following:

Our Supreme Court of British Columbia is presently 7 judges below complement. As a result, parties are regularly arriving at court for trials and hearings [and they're] being sent away because of a lack of judges to hear the cases. [The] parties have...spent substantial time and money preparing for court appearances, and witnesses have also been inconvenienced.

Then it goes on to talk about the financial and emotional costs.

There's an example from a lawyer. You'll appreciate this, of course, being a lawyer yourself. It was, “I have had this problem [of delays] five times I can remember in the last 18 months. [...] It happened twice in Cranbrook [Supreme Court] resulting in the client being unable to enforce a restrictive covenant” before it expired. It's difficult enough to enforce a restrictive covenant, but this person never even had an opportunity to try, so they feel that justice has been denied.

My question to you, Mr. Attorney General, is why is justice being denied to people in my home province of British Columbia?

[Arif Virani, Liberal, Parkdale—High Park, ON]

I would say to you that I am acutely aware of the need to fulfill judicial vacancies. I would note for the record that in seven months in office I have appointed 74 judges thus far, and there are more to come in the immediate days to follow.

I think it's important, for comparison purposes, to reflect on the record of the previous government, which we replaced in 2015. The average number of appointments annually by that government was 65. By that metric, I'm working twice as fast as the previous government.

It's important to understand how delays occur in the criminal justice system and the civil justice system, but also who is responsible for the delays. The administration of justice in this country is, in the main, the purview of the provinces, and delays are also caused by a lack of courts and a lack of court staffing across provinces in this country.

You mentioned “confidence in the administration of justice”. I share your concern. It's entrenched in our charter, and it's a fundamental part of what I do. What I've seen fit to do is ensure that our JACs—our judicial appointments committees—have quorum and that they are able to do the work they are required to do in terms of nominating judges, such that they present recommendations to me.

Alternatively, what I have seen in provincial levels of government in terms of their own judicial appointments processes is stacking judicial appointments committees with staffers of the governing party. That relates to my province, not yours, but I think that actually undermines confidence in the administration of justice, because it injects partisanship in the appointments process. That's not what we need. We have ensured a non-partisan process that is robust and that helps us establish judges of the highest quality to represent the diversity of the country. I'll continue to appoint people of that nature.

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

Thanks for that answer.

You've said that you are appointing a record number of judges. Fair enough—I don't argue with that—but the chief justice of Canada, Richard Wagner, talked about the government's inertia regarding vacancies and the lack of satisfactory explanations for these delays.

This is what he says: “The slowness of appointments is all the more difficult to understand since most judicial vacancies are predictable.”

Now, you've said that you're appointing more judges than the Conservatives ever did, but of course, sir, the circumstances are quite different than they were a decade ago, when the Conservatives were the governing party. You have the reality of a demographic of a large number of aging baby boomers, so it is your job to fill those vacancies. It is your job to stand up to the challenge of the day. My question is whether your government is up to those challenges.

[Arif Virani, Liberal, Parkdale—High Park, ON]

In terms of the number of judges we have appointed since 2015, it's over 700. Last year, David Lametti and I appointed 100 judges in total. That's never been done in Canadian history. As I said to you, I've appointed 74 in seven months. That is a faster pace than has ever been seen and twice as fast as the previous government.

Is there an issue with respect to appointing judges and the speed at which it is taking place? This is a top priority for me and has been since I took over in this job. In terms of structural changes I've done, I have convened all of the heads of the judicial appointment committees. I have written to them about the need for urgency in terms of making suggestions. I have worked with my deputy and other officials in government to facilitate the speed with which security clearances are obtained. I've made structural changes such that the JACs now sit for three years and their assessments are valid for three years. Every time I tour anywhere in this country, I talk about the need for people to apply: people of the highest quality who represent the diversity of this country.

Other aspects that relate to the need for judges are informed by the courts themselves. The courts tell me that we need a specific expertise, a family law lawyer, a person who has expertise in insolvency matters.... Sometimes, provinces that don't have significant francophone populations still require bilingual jurists, because of the need to address francophone litigants. We are always attentive to the needs of the court, we remain so and we are working very closely with those chief judges to meet the needs of their courts quickly.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Mendicino, you have six minutes.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thanks very much, Madam Chair.

Good morning, Minister.

Thank you to you and your officials for your introductory remarks with respect to this important piece of legislation. I think we're all united in wanting to see a thorough debate about this given the social harms that are at play, in particular with regard to vulnerable Canadians, young Canadians, women and others.

I really want to zero in on the part of the bill that deals with a digital safety commission because, on my first reading of this proposed legislation, the powers that would be imbued within this new commission are extensive. Again, on my first review of this legislation, it would make certain content inaccessible. It would create new investigative powers. It would create a forum in which there could be hearings that could be closed to the public given certain sensitivities that may be in play, as well as privacy considerations. The commission would have the power to create regulations and codes of conduct and also levy quite significant penalties.

Given that, would you agree, Minister, that the chair of this commission will have quite a significant authority in those areas?

[Arif Virani, Liberal, Parkdale—High Park, ON]

This is a big step forward for Canada. We thought really long and hard about how to structure it. We looked at different examples around the world, including the e-safety commissioner in Australia, but we also thought very hard about the confidence that I think Canadians need to have in this new officer, given the powers they will wield.

That's why you'll find in the bill what is a very pronounced declaration that we will say the confidence of Canadians will be ensured by having a vote cast in the House of Commons and the Senate in Canada to support the implementation and appointment of that new digital safety commissioner. That gives Canadians, through their elected representatives and through their parliamentarians, a direct line of accountability.

I think the measures we're taking are significant, but I would also point to the fact that most people are aware of Frances Haugen, the famous Facebook whistle-blower who testified at Congress. She described this as best-in-class, world-leading legislation for ensuring the accountability we need to see of social media companies, including the significant penalties of up to 6% or, in the case of a contravention offence, 8% of global revenue.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

On the vote, are you worried that it could become the subject of partisanship? You and I have participated in many votes, and the opposition has every right to use the tools within its reach to encourage debate.

My question is whether or not, given the functions within this particular commission, including voting on the chair of that commission is potentially susceptible to making this commission political.

[Arif Virani, Liberal, Parkdale—High Park, ON]

On the issue of protecting children, empowering adults and protecting minorities who are vulnerable, I think we have to rise above partisanship. I don't mean to sound Pollyanna-ish.

As a case in point, among the legislation we've consulted around the world, there's one piece that's been promoted by the Conservative government of Rishi Sunak in the last 14 months. Conservative governments around the world and Liberal governments around the world are acting in this area because the need to act is severe. That's the first point.

The second point is that I believe we can co-operate. I believe that empowering all parties—from the smallest party or an independent member to the official opposition or the government—to vote on this demonstrates that we want Canadians to have confidence, and we're determined to ensure that they have confidence in such a significant office.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

It's clear you've given a lot of consideration to the model of choosing who will be the first chair of this commission once it's in effect.

Would you agree that the chair will have powers that make the role quasi-judicial? In other words, they will be similar to the role that judges play and the role of other individuals who are responsible for the administration of tribunals, which will adjudicate on the kinds of issues that are contemplated in this bill?

[Arif Virani, Liberal, Parkdale—High Park, ON]

There is no doubt that determining whether the safety plan meets the standards that are required in issuing orders and determining whether offences have occurred and issuing penalties have aspects of quasi-judicial functions.

What's also important is that, as a lawyer should, I ascertained and verified that we would also have procedural fairness at every step of the way for the parties that are involved, as well as the possibility for judicial review in a court of law after the fact. You get Facebook making a determination. That's reviewed by the new digital safety commissioner. The digital safety commissioner's decision can also then be reviewed in a court of law.

I'm steadfast in my belief that Canadians have confidence in our world-class jurors and in their ability to execute an impartial determination about the veracity and validity of those decisions. That's important for procedural fairness. It's important for confidence in the administration of justice.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

That's quite clear through your intervention.

Are there any other positions that are quasi-judicial in their nature and are subject to a vote in the way the digital service commission is being proposed in this legislation through both the House and the Senate?

[Arif Virani, Liberal, Parkdale—High Park, ON]

I would need to consult with my officials and get back to you on that. I'm not sure if my officials have the answer to that.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

If you can do that, Minister, it would be very much appreciated. Thank you for your answers.

I'll yield the rest of my time to the Chair.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much. It's much appreciated.

Mr. Fortin, you have the floor for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Chair.

Thank you for being here, Minister.

I have several questions running through my head, but I'll have to prioritize them. I wish I had more time, but I understand that's the way it has to be done.

First, I have some questions about the legal aid system for immigrants and refugees. I'm sure you understand that this issue is of great concern to the Bloc Québécois. In Quebec, the amount owed by the federal government is a problem. In fact, the Quebec government is not getting paid, yet it continues to spend on newcomers.

There's also the question of official languages. A total of $1.2 million has been earmarked for official languages and I'm interested in hearing how that money will be distributed among the provinces.

In addition, there's obviously the whole issue of systemic racism. You want to help judges impose sentences that take this into account. How is that going to work? How are we going to define systemic racism?

There's the question of cybersecurity, in courthouses, etc.

There are plenty of important issues, essential even, that I won't necessarily be able to address this morning, unfortunately. However, I will try.

There's also Bill C‑63, which you told us about in your opening remarks. I'm not sure how it relates to the Supplementary Estimates (C), but it is an important question, regardless. With respect to this bill, I am curious as to why you didn't introduce the age verification process, as proposed by Senator Julie Miville-Dechêne. Her proposal seemed relatively wise to me, but there's no mention of it at all in Bill C‑63.

The Bloc Québécois is in the same boat. We've proposed abolishing the two religious exceptions in the Criminal Code, which I think is essential in the current context. How is it possible that someone can still build their defence around the idea that they committed a hate crime or spread hatred because of a religious text? That is completely absurd and contrary to the values shared by all Quebeckers and, I'm certain, by the rest of Canada too.

These are all essential questions, but I'm going to focus on two important elements.

First, our committee recently passed a bill that aims to create a commission to review errors in the justice system. This is obviously something that had to be done; congratulations. I think it was high time for a major clean‑up. The commission will comprise nine members. I've tabled an amendment to the effect that these nine commissioners should be bilingual. In fact, I'm a little surprised that this wasn't planned from the outset. Still, it seems a very modest goal. Nine bilingual commissioners across Canada shouldn't be too hard to achieve. However, I've run into an objection from some of my colleagues, including one of your Liberal colleagues.

I'd like to hear your thoughts on this. If we want the justice system to be bilingual, shouldn't we necessarily make an effort by asking for bilingualism among these nine commissioners? It's not as though there are 900 of them; there are nine.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Fortin.

As far as legal aid is concerned, we've moved—

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I'm sorry to interrupt, but I think you misunderstood. I said that these were subjects I would have liked to discuss. However, I've got about three minutes left and I'd like you to answer the question I asked you about the miscarriage of justice review commission.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I'd just like to mention something quickly, Mr. Fortin.

In the last fiscal year, we've already paid out over $80 million for legal aid.

Also, our dedication to official languages is clear.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Minister—