Public Safety Committee on April 19th, 2018

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I understand my colleague's argument.

However, from a technical standpoint, can the mandate of a sitting judge not be suspended while the judge is serving as a commissioner? Is there not a way to withdraw that judge's legal powers while serving a term as commissioner?

[The Chair, Liberal, John McKay]

I'm not sure I understand Mr. Paul-Hus' question, but Mr. Davies...?

[John Davies]

To be honest with you, I can't answer that. I think your question is, can you be a sitting judge and take a leave of absence while you do this? I'm not aware of anything like that.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

The problem Mr. Spengemann raises is that a judge cannot serve both the executive and the judiciary. I wanted to know whether a judge could be deprived of his or her legal powers while serving as commissioner, which would open a possibility.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

I'm a little surprised to hear from my colleagues across the way who seem to put a lot of faith in the judiciary when it suits their needs, that the selection of a judge to serve as the commissioner is somehow going to put somebody in a conflict of interest, that a judge who can't seem to sort him or herself out would be in some sort of conflict of interest.

Keep in mind that somebody who is called upon can simply refuse if they want to not serve as the commissioner. They don't have to get hauled off the bench against their will to come and serve as the commissioner. This would be somebody who would obviously want the job, and this is a full-time job. I don't see why we would exclude or limit the pool of candidates for something as important as national security by not accepting either this amendment or the amendment that's been proposed by our party, which is going to be very similar in nature.

I'm sorry, I have much respect for Mr. Spengemann, but I'm just not buying the argument.

[The Chair, Liberal, John McKay]

Mr. Spengemann, do you want to respond?

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Just to address the comments raised by Mr. Dubé and Monsieur Paul-Hus in terms of carving out an appropriate role for a sitting judge, I think for that very reason the cleaner answer is to seek a retired judge who is no longer part of the judiciary.

The problem is that this person, she or he, will be serving in the executive branch as a sitting member of the judicial branch, and that crossover raises even the perception of a conflict of interest that's systematic. Therefore, retired judges would be much preferable and there is no shortage of retired, talented judges who could fill these roles.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

The CSE commissioner told us that we'd be better off to expand the pool because we have a limited pool now for this position. That is exactly what he told us.

My question to the officials would be this. Currently, does the Privy Council Office not vet and deal with conflict of interest issues in all matters of appointments anyway?

[John Davies]

Yes, I think the conflict of interest raised here was whether you can be part of the judiciary and the executive at the same time. When you ask to be part of the government as part of the executive, you're making decisions that another part of the judiciary will eventually be asked to rule and comment on. I think that's the conflict of interest. It's not necessarily a personal conflict of interest that PCO would vet normally.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I apologize. I can't recall who asked the question of which witness, but it was asked if even retired judges would be in a potential conflict of interest given that they had played the role before, that they have colleagues and such. Witnesses rightfully pointed out that this would not be a concern. I feel that, the way the system is structured, judges regularly make decisions based on decisions of other courts and other judges. I understand the point that's being raised, but at the end of the day there is a concern about having a sufficient number of candidates who are willing, as well, to fill the role.

I'm also concerned by this accountability to the executive. While it's part of the executive branch from a technical perspective, the commissioner is approving, or not, actions of ministers in the same way an acting judge would be approving warrants for national security agencies and others. I think this notion that they would somehow be conflicting with each other is no different from an instance when a court case gets referred to the Supreme Court and there are duelling perspectives there, and such.

Again, I think that having a larger pool of candidates is appropriate.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I agree that we need a large pool of candidates to draw from. In my opinion, a sitting judge now, who would step down from that role if he were appointed, as we heard from experts earlier, he's a retired judge, so it would fit.

What are your thoughts on a supernumerary judge? How would that fit with this? Would that expand the pool even more or does that present more problems?

[John Davies]

I may need a minute on that.

The feedback is that a supernumerary judge is still a sitting judge.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Would you be of the opinion that a sitting judge or a supernumerary judge, if appointed to this position, would then immediately step down, or is that not the requirement?

[John Davies]

It's possible. It would depend, I guess, on the individual and their position and when they know for sure.

[The Chair, Liberal, John McKay]

Seeing no further debate I'm going to call the question.

Take note that, if NDP-14 is adopted, CPC-14 cannot be moved, as they amend the same lines. If NDP-14 is defeated, so also is CPC-14, as it is identical.

I know that's pretty brutal.

(Amendment negatived [See Minutes of Proceedings])

Next up is NDP-15.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Once again, without wanting to call into question the person who had filled this position, I think that having the intelligence commissioner limited to one term, which is what the amendment proposes, gives the maximum independence possible without having to be at all concerned with the renewal of the term. Interestingly enough, this was a suggestion made by Monsieur Plouffe, who would be the person who will be occupying this role, it stands to reason, given the changes in the legislation, and who is presently the CSE commissioner. Given that someone who occupies what is essentially a similar role right now, which will be evolving, says that this would be appropriate to ensure that they're not distracted by a renewal of term, I believe it's an appropriate amendment, as I said, to maximize the independence of the position.

[Michel Picard, Liberal, Montarville, QC]

The function itself requires complete independence and being both a judge and a commissioner would create a conflict of interest, which wouldn't be appropriate.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I'm not sure this comment concerns the amendment. It limits the mandate to a non-renewable term.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I can't support this amendment because we already know that the appointment in the first place is an arduous process. To find the right individual—and for the amount of time it takes to do that—for five years and then they're gone, regardless of how good they were, we're going to be in a spot where we're going to be fighting to try to find a person. I'm sure it will lead to vacancies in the position.

Having that secondary term, the reappointment as is currently written in proposed subsection 4(2), makes sense. I can't support the amendment.

[The Chair, Liberal, John McKay]

Is there any other debate?

(Amendment negatived [See Minutes of Proceedings])

NDP-16 is out of order as it requires a....

Sorry, I'm getting ahead of myself again. I apologize, Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Currently, the commissioner's position is part-time. However, in our opinion, it would be entirely appropriate for this position to be full-time only, given the nature of the work, real-time monitoring, and so on. Given the accountability objectives we want to achieve by creating this position, it would be entirely appropriate for the individual to be fully dedicated to this task.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

The ruling is that NDP-16 encroaches on the royal prerogative of the government, and therefore, it is inadmissible. That ruling applies to PV-2 and to CPC-15 as well.

Mr. Dubé and Ms. May, I see your hands. You can challenge the chair on the ruling, of course, but if you're anticipating some debate, the debate is out of order.

If there is something else you wish to add—

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Under the terms of the motion that this committee passed which forces me to be here, I'm allowed to speak to my amendments, although they are deemed put forward. Prior to the ruling—when I know the ruling has now been made—I would appreciate the chance to fulfill the so-called opportunity I have to appear before this committee, which I am forced to do.

[The Chair, Liberal, John McKay]

I think you're correct on that.

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Chair, before we move to Ms. May's comments on her amendment, I'm wondering if I could seek clarification on the decision, on two points.

For me as a parliamentarian, it's the first time I've been involved in a committee process for legislation that has been referred before second reading. In the sense of things being able to be outside the scope of the bill, I'm wondering whether that impacts at all.

Secondly, given that it's government legislation, there have been a few amendments in this bill that have had similar rulings. I know that for private members' business, you can't supersede that prerogative, but when it comes to a government bill, is there not an ability in that case to make this type of amendment?