Arif Virani

[Business of Supply, April 29th, 2019]

Clearly, the opposition members do not like the answers again. They are hollering at me across the aisle. If they had the ability to listen to the answers, maybe they would internalize some of the evidence before them.

The most important point in all of this is that they continue to mislead Canadians about the fact that paragraph 715.31(f) of the remediation agreement under the Criminal Code specifically states that what the Prime Minister's Office did was stand up for the employees, pensioners, suppliers and clients of a corporation. That is a perfectly valid purpose under the legislation, which I would urge them to read in the Criminal Code. That is what the Prime Minister did and what any government should do: stand up for jobs.

[Business of Supply, April 29th, 2019]

Madam Speaker, what I find fascinating is the continuing ability of the members opposite to distort actual evidence on the record. What was indicated in the testimony provided by the former attorney general was this. When she asked the Prime Minister a specific question, he indicated to her it was her decision and her decision alone. In fact, it remains a decision of the government and of the former attorney general alone. That has been reiterated over and over again. That is called the statutory framework and the rule of law doing exactly what they should.

[Business of Supply, April 29th, 2019]

Madam Speaker, now he is heckling me from across the way because he does not appreciate what I am saying, nor does he have the respect to listen to what I am saying.

The second response is that he again infers that some sort of interference occurred. Clearly, he did not listen to the evidence I just put into the record. The two key witnesses before the committee both reiterated, at length and with impassioned pleas, that the rule of law has not been jeopardized in this case. Nothing unlawful occurred. Nothing criminal occurred. It is a complete distortion on the part of the member opposite. It would become him to do much better in this House, since he is a man of some experience in the chamber.

With respect to the application process for Supreme Court judges, we will always defend an application process that ensures functional bilingualism and emphasizes the diversity of the bench. What we have done with the appointments process is like night and day compared to what was done by the previous government in terms of ensuring that we have qualified jurors who represent the faces of the Canadians before them.

The process we have put in place is a good one and a strong one. Are leaks a concern? Absolutely, leaks are a concern. They do not come from the Minister of Justice. He has said this in this House. They do not come from the Prime Minister's Office. The Prime Minister has reiterated that as well.

[Business of Supply, April 29th, 2019]

Madam Speaker, I thank the member for Timmins—James Bay for his contribution today and on other days. I appreciate that he finds it fascinating that I or anyone would stand up to defend the independence of the judiciary. As someone with 15 years' experience at the bar, I will always stand up for the independence of the judiciary and defend it. That is not what has been impugned in this case.

[Business of Supply, April 29th, 2019]

Mr. Speaker, before I begin, I would like to inform you that I will be splitting my time with the member for Spadina—Fort York.

I would like to address the House on the important aspect of this debate, one that our government takes very seriously: the independence of the Public Prosecution Service of Canada and the integrity of Canada's rule of law.

The Public Prosecution Service of Canada, or PPSC, is a federal government organization that was created on December 12, 2006. The Director of Public Prosecutions Act sets out the roles and responsibilities of the director of public prosecutions and the prosecutors that are authorized to act on the director's behalf. The PPSC fulfills the responsibilities of the Attorney General of Canada in the discharge of his criminal law mandate by prosecuting criminal offences under federal jurisdiction and by contributing to strengthening the criminal justice system.

The creation of the PPSC reflected the decision to make transparent the principle of prosecutorial independence, free from any improper influence. Under the Department of Justice Act, the Attorney General is responsible for the regulation and conduct of all litigation for or against the Crown or any department.

With respect to the conduct of civil matters, the Attorney General does not have exclusive decision-making authority over litigation positions. When it comes to civil litigation, there is often a high degree of policy involved in determining what position, among the available and viable legal arguments, should be taken in a particular case. Civil litigation differs sharply, in this respect, from criminal prosecutions.

The Attorney General's role in prosecutions must be independent, and he or she must receive orders from nobody, as an attorney general of England said in 1925. Specifically, he or she must act independently. The Supreme Court has found this to be a foundational constitutional principle of our democratic form of government.

The determination of who should be prosecuted for which crimes, which prosecutions should continue and which should not and what sentences or penalties ought to be sought must all be made solely on the basis of evidence and with regard to the fair and effective administration of criminal law and the criminal justice system. It remains, nevertheless, advisable for the Attorney General to inform him or herself of the relevant context, including the potential consequences of any given prosecution. The PPSC reports to Parliament through the Attorney General of Canada. The Director of Public Prosecutions Act states that the director of public prosecutions acts “under and on behalf of the Attorney General”.

The relationship between the Attorney General and the director is premised on the principles of respect for the independence of the prosecution function and the need to consult on important matters of general interest.

In 2006, the Director of Public Prosecutions Act created the independent Public Prosecution Service of Canada. The act formalized the Attorney General's role in federal prosecutions by giving authority for the initiation and conduct of prosecutions to the director of public prosecutions, the DPP. The director acts as the deputy attorney general of Canada in initiating and conducting federal prosecutions on behalf of the Attorney General.

In most cases, the Attorney General him or herself will not be involved in prosecutorial decision-making, although the director of public prosecutions requires the director to inform the Attorney General of any prosecution that raises important questions of general interest. That is found at section 13 of the relevant legislation. Thus, the statutory framework ensures that the Attorney General will be advised of important criminal cases.

As we know, the Attorney General may issue directives to the director of public prosecutions, which may be general or about specific prosecutions. This is set out in section 10 of the act. When a directive is issued, it is issued through a fully transparent process. It is published in the Canada Gazette, where every Canadian can review it.

As well, a general directive must be preceded by consultation with the director of public prosecutions. The Attorney General may also, after consulting the director of public prosecutions, assume the conduct of a prosecution. This too is done through a transparent process where the Attorney General must publish notice of the intent to assume conduct of a prosecution in the Canada Gazette.

The notion of the director of public prosecutions' independence relates to the prosecutorial decision-making process and all step incidental to it. The director of criminal prosecutions is regarded as an independent officer, exercising quasi-judicial responsibilities.

Safeguarding the director's independence is the requirement that all instructions from the attorney general must be in writing and be published in the Canada Gazette, as I have mentioned. Additionally, the PPSC must provide the attorney general with an annual report for tabling in Parliament.

Prosecutorial independence is a cornerstone of our democracy, reflected in the relationship between the Attorney General of Canada and the director of public prosecutions. It reinforces confidence in the judicial system by ensuring that prosecutions are not seen to be improperly influenced by politics. Instead, prosecutions of federal offences are carried out by experienced and skilled prosecutors right across this country, many of whom I know as Parliamentary Secretary to the Minister of Justice and also in my former capacity as a former Crown counsel to the Attorney General of Ontario, where I had the opportunity to work with many distinguished legal minds and lawyers who prosecuted cases on behalf of the Department of Justice federally.

As confirmed in a statement published on February 12 of this year, the director of public prosecutions, Ms. Kathleen Roussel, stated that “I am confident that our prosecutors, in this and every other case, exercise their discretion independently and free from any political or partisan consideration.”

Canada is a nation governed by the rule of law. This basic premise is not only written into our Constitution, but is also found in the actions of our political actors and in the structure of our executive, legislative and judicial institutions, as well as how they relate to one another. Upholding the Constitution requires not only respect for the supreme law of the land, as set out in the provisions of our Constitution, but also the rules and practices that reflect and support constitutional values.

In our parliamentary system, we strive to adhere to and respect well-established constitutional principles and conventions. Foremost among them is the principle of the separation of powers, which our Supreme Court has emphasized is a principle that is fundamental to the working of our Parliament and our courts.

Justice McLachlin, while a judge before the court in 1993, in a case called “New Brunswick Broadcasting Co. v. Nova Scotia”, said that:

It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.

Our government is unwavering in its commitment to maintaining public confidence in the administration of justice, as well as the independence of the judiciary. Our government will always stand up for the rule of law, and the evidence before the judiciary committee earlier this year confirmed that the rule of law is indeed intact.

Let me refer to some of that evidence. The evidence from the former attorney general, the member for Vancouver Granville, before the justice committee was that:

I do not want members of this committee or Canadians to think that the integrity of our institutions has somehow evaporated. The integrity of our justice system, the integrity of the director of public prosecutions and prosecutors, is intact.

The evidence continued from a different witness, who said:

I think Canadians should feel assured that they work in a democracy under the rule of law....

The witness continued:

I think Canadians need to be assured that their police and investigators, with the powers of the state, operate independently, and that the prosecution service, the state charging people with offences, is completely independent. There is a legislative and statutory shield around that, which demonstrably is working

That is the evidence of the former clerk of the Privy Council. It is important that there was complete alignment in the testimony from those two key witnesses before the justice committee on the important point raised today in this motion.

As a government, we will always strive to provide Canadians with the transparency they deserve in a way that preserves, rather than undermines, solicitor-client privilege, the right to a fair hearing in cases that are currently active, the integrity of the position of the director of public prosecutions and the rule of law in our country. It is fundamental to our democracy and fundamental to our legal system, and it is something that all parliamentarians would strive to uphold.

[Federal Courts Act, April 29th, 2019]

Mr. Speaker, I am pleased to have the opportunity to speak today to Bill C-331. The international promotion and protection of human rights is something I take great interest in as a representative of a very engaged community of global citizens in Parkdale—High Park and as someone who was a former war crimes prosecutor on a Rwandan genocide tribunal in Arusha, Tanzania. I thank the NDP member opposite for moving this bill and prompting this very important discussion this morning.

Under existing law, the superior courts of the provinces and territories can hear lawsuits involving events that occur outside of Canada if there is enough of a connection to Canada. This was raised by the member for St. Albert—Edmonton. Lawsuits alleging that Canadian companies have been involved in violations of international human rights abroad that involve claims for negligence or other violations of Canadian or foreign law are based on existing bodies of law.

The question of whether the common law also allows a person to claim damages in a superior court specifically for a violation of customary international law is the issue in the case of Nevsun v. Araya, which was heard by the Supreme Court of Canada in January. That decision is under reserve, and it is important that we hear from the court on this particular issue.

Unlike the superior courts, the Federal Court generally does not handle cases against companies or individuals for actions taken outside of Canada. The Federal Court's jurisdiction is limited both by the Federal Courts Act and by the Constitution.

The Federal Court mostly hears cases involving judicial review of decisions of federal boards and tribunals, lawsuits against the federal government, and cases involving patents or maritime law. Civil claims between private parties don't usually end up in Federal Court, except in those areas.

The bill would amend the Federal Courts Act to provide that the court may exercise jurisdiction over certain cases involving violations of international law outside of Canada. As the member for New Westminster—Burnaby has said, this bill was modelled on the U.S. Alien Tort Statute, or ATS. It provides, in full, that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The ATS has been controversial in the United States, and there has been a great deal of litigation about its scope. This has included disagreements about what kinds of claims are covered and about the application of the statute to foreign defendants and corporations, again something that has already been mentioned in the course of this morning's debate.

Bill C-331's main provision is a little more complicated than the ATS, but the idea and the targets are similar. I want to make three observations about the kinds of cases in which the Federal Court would have jurisdiction.

First, Bill C-331 appears to give the Federal Court jurisdiction over existing types of legal claims and would not create new ones. It would provide that the Federal Court would have jurisdiction to hear cases involving claims respecting conduct that “arises from a violation of international law”.

Jurisdiction delineates the scope of the court's authority, either in terms of territory or in terms of subject matter. Jurisdiction is not the same thing as the right to a legal remedy, and that is an important distinction. For example, the Federal Courts Act gives the Federal Court “jurisdiction in all cases in which relief is claimed against the Crown.” However, that does not mean that the Federal Court can address any complaint a Canadian might have about the federal government. The act gives the court jurisdiction, but the court can only give a remedy if one is provided for by Canadian law, such as the law governing Crown contracts if the claim is one of breach of contract.

Second, the bill grants jurisdiction to the Federal Court rather than to the provincial Superior Courts. The Supreme Court of Canada has held that the Federal Court can only hear certain kinds of cases. It needs permission from Parliament, in the form of a statutory grant of jurisdiction. In addition, the case must also be governed by an existing body of federal law.

Accordingly, Bill C-331 will allow the Federal Court to hear cases based on federal law, rather than on provincial law or foreign law. This could include cases where there is a violation of both international law and a federal statute, such as the Carriage by Air Act.

The third point I want to make is that lawsuits under Bill C-331 would appear to involve only defendants who are subject to the jurisdiction of Canadian courts. According to the State Immunity Act, as well as international law, foreign governments and their officials generally cannot be sued in Canadian courts. Because Bill C-331 would not amend the State Immunity Act, these rules would remain in place. Similarly, Bill C-331 would not modify the principle that Canadian courts only hear cases that have a sufficient connection to Canada. That nexus was elaborated on again by the member for St. Albert—Edmonton.

In summary, Bill C-331 could allow the Federal Court to hear some new cases involving violations of international law abroad. However, it appears that those cases would need to fit within existing legal remedies or pre-existing causes of action. They would need to be based on federal law, and they would need to have a sufficient connection to Canada.

I would also like to speak briefly to two procedural aspects of the bill. Bill C-331 would provide that the cases to which it applies would not be subject to limitation periods provided in federal law. This would allow people to bring certain old claims even if they missed the deadlines that ordinarily apply. For example, claims against the Crown in respect of matters outside of a province are ordinarily subject to a six-year limitation period. This limitation period would no longer apply under the bill.

Bill C-331 would also specify when the Federal Court could stay proceedings to allow a case to go forward in a different court. This would roughly echo the principle of forum non conveniens, which Canadian courts use to decide when to stay a lawsuit because it would be more appropriate for it to proceed in a different court.

In conclusion, I would like to thank the sponsor of the bill for bringing this important issue before the House, and I look forward to hearing more of the second reading debate on this bill.

I would also like to take this opportunity to highlight the recent appointment of the first Canadian ombudsperson for responsible enterprise, Ms. Sheri Meyerhoffer. The Minister of International Trade Diversification appointed her on April 8, 2019. The ombudsperson will review allegations of human rights abuses arising from the activities of Canadian companies abroad.

This is a role that I have heard extensively about, and not just from my constituents in Parkdale—High Park but from people around the country who share the concern of the member for New Westminster—Burnaby about ensuring that international human rights are protected not just in Canada but abroad, including when Canadian corporations are involved.

For companies found to be involved in wrongdoing abroad, the ombudsperson can recommend measures, which could include the withdrawal of certain government services, such as trade advocacy. The ombudsperson can also make specific recommendations to companies, including in relation to compensation, an apology or corporate policy changes.

Giving the ombudsman's role some enforceable powers and some teeth is a critical aspect of this mechanism.

The appointment of this ombudsperson underscores Canada's commitment to advancing responsible business conduct by Canadian companies abroad and respect for the fundamental rights of people around the world.

That is exactly the type of reform that we need more of in this country. It is the type of reform that I am sure the member for New Westminster—Burnaby would share with us, as all parliamentarians should, in terms of promoting the understanding and enforcement of international human rights obligations.

[Criminal Code, April 12th, 2019]

Mr. Speaker, I am pleased to rise today to speak to Bill C-417. I want to thank the members of the Standing Committee on Justice and Human Rights for their study on the bill and the hard work they did to advance discussions and debate on the issue of juror mental health.

I support the amendments made by the Standing Committee on Justice and Human Rights and I urge all hon. members to do the same. Before I address the amendments made to the bill, I would like to talk about the bill itself and about the purpose of section 649 of the Criminal Code and the way it compares to offences in other countries.

The underlying objective of this bill is no doubt a laudable one, as it proposes a Criminal Code amendment that seeks to help jurors who face mental health challenges following jury duty. It proposes to do so by amending section 649 of the Criminal Code, which has been identified as posing an impediment for jurors needing mental health support after the completion of a jury trial. Like other members of this House, I believe that it is important for jurors to get the support they need in the aftermath of their jury service.

Specifically, the amendment proposed in Bill C-417 would permit jurors to discuss jury deliberations with health care professionals after the trial in order to address health issues that have arisen as a result of their jury duties. It would do so by adding an exception to the offence of disclosure of jury proceedings under section 649 of the Criminal Code.

As has been mentioned by the sponsor and other members of this House, the proposal seeks to implement a unanimous recommendation of the House of Commons Standing Committee on Justice and Human Rights' May 2018 report entitled “Improving Support for Jurors in Canada”.

With few exceptions, section 649 prohibits jurors from disclosing any information relating to jury deliberations or other information not shared in open court. The prohibition in section 649 applies to matters intrinsic to the jury deliberation process, such as the opinions, thoughts, statements, arguments and votes of individual jurors. It also applies, for example, to the slightest comment between jurors while walking out of the courtroom or while exiting the courthouse.

The purpose of the prohibition is to promote free and frank debate in the jury room and allow for an independent and effective jury free from the pressures of public scrutiny or fear of reprisal. It also supports the finality of verdicts and public confidence in the administration of justice.

Jurors may discuss evidence or other information disclosed in the courtroom, since such information is publicly available. What this means, for example, is that there is currently no legal impediment if a juror wishes to seek mental health support in relation to a gruesome video or photograph presented as evidence in court.

Indeed, as was mentioned in earlier debates, many provinces and territories—Alberta, British Columbia, Ontario, Quebec, Saskatchewan and Yukon—offer juror support programs that tackle the mental health consequences of this aspect of jury duty.

Section 649 targets out-of-court discussions about jury deliberations and makes it a summary conviction offence to disclose such information.

The offence applies to every juror and every person providing support services to a juror with a physical disability.

It may also interest members of the House to know that some provincial and territorial legislation, applying to both criminal and civil jury proceedings, establish an offence that seeks to address a similar issue as that in section 649. For example, Yukon’s Jury Act prohibits any person who was a member of the jury from disclosing or discussing in any manner the nature or content of jury discussions.

In testimony provided to the justice committee during its study on jurors, Ms. Tina Daenzer, who had been a juror for the Paul Bernardo trial in the 1990s, described that part of the trauma of serving on a jury came from what jurors were not allowed to discuss.

More recent, Mr. Mark Farrant told the justice committee during its study of Bill C-417 that after he had served on a jury in a murder trial, many mental health professionals were unwilling to take him on as a client at all because of perceived legal conflicts due to the jury secrecy rule, which I was describing. Even though jurors are able to talk about whatever becomes part of the court record, including horrific and traumatic evidence, jury secrecy still operates as a barrier to some jurors in accessing mental health care for their own trauma. Bill C-417 would change that, which makes this such an important bill.

Internationally, a similar rule prohibiting the disclosure of jury deliberations is found in the United Kingdom and in various states in Australia. The justice committee's report takes note of legislation in the Australian state of Victoria, which includes an exception that permits a former juror to disclose information related to deliberations to a registered medical practitioner or a registered psychologist while being treated in relation to issues arising out of their service.

In the United States, once a trial is over, jurors are generally free to discuss the events of the trial and jury deliberations, unless a specific court order bars them from doing so. What that means is that jurors in the United States can talk with nearly anyone about juror deliberations, including a talk show host on national television or across the Internet. This approach, which offers limited protection for juror privacy, is significantly different from the Canadian model.

I think we would all agree that Canadian citizens may be reluctant to serve on juries if it is contemplated that their deliberations would be made public or if they may be subjected to probing and intrusive questioning about discussions and opinions expressed during deliberations. It thus remains critical to ensure the privacy, safety and security of jurors who perform the invaluable civic duty of serving on a jury.

Against this backdrop, I would like to turn my attention to the substance of Bill C-417 and why, as I have already mentioned, the government supports the bill with the amendments that were adopted at committee. The amendments have added clarity to the proposed change to section 649 and they are consistent with what the bill seeks to achieve. One of the amendments was discussed earlier. It is about specifying who is a health care professional by clarifying that it must be a professional who is regulated or licensed in the province or territory, similar to what is found in the Australian example. The impact of this amendment is that it would provide for greater clarity that jurors could only disclose information to a member of a regulated health profession with governing rules of conduct and codes of ethics, including duties of confidentiality.

Such a change is consistent with ensuring that the integrity of the jury secrecy rule is maintained, notwithstanding the new exception to section 649 that is being proposed.

The other amendment is relatively minor, addressing a discrepancy in the language versions of the bill.

Finally, the justice committee agreed on an amendment to the bill to provide for a coming into force date of 90 days after royal assent, to give the provinces and territories time to prepare for the implementation of the change in the law. As the sponsor of the bill noted at committee, the purpose of the amendment is to give provinces and territories the time to get up to speed with the change.

The justice committee's amendments strengthen this bill, responding to the issues raised before the committee. As such, the government will be accepting the committee's recommendation to adopt this bill, as amended, at third reading.

[Criminal Code, April 12th, 2019]

Mr. Speaker, I appreciate the commitment of the member opposite to this issue and his work on the justice committee as vice-chair.

I reiterate the comments he made about the consensual approach the committee took with this bill. The committee looked at this bill, and I agree that it should be sent to the Senate and proceeded with forthwith. There have been some discrepancies about other justice bills that are before the Senate, but I will not go into those. Those were raised previously by Ms. Ambrose.

There were a few amendments made to the bill at committee that do, in fact, strengthen it. One in particular was the issue about ensuring people can indeed come forward and receive counselling and other supports they may need. The issue had to do with who they would be dealing with and the professional qualifications that should be required of those individuals who are delivering the counselling. Perhaps the member opposite could speak to that important amendment.

[Budget Implementation Act, 2019, No. 1, April 12th, 2019]

Mr. Speaker, I am very proud to represent the member for Guelph's daughter, in terms of having her as a constituent.

What I can say to her, and to many others who live in Parkdale—High Park, is that this is exactly what we are trying to do as a government, broadly. The very first thing we voted on after selecting the Speaker was reducing the taxation burden on middle-income Canadians. That is critical because it puts more money in the pockets of families like his daughter's.

By doing that, what we empower them to do, through things like the middle-class tax cut and the Canada child benefit, which targets people who are raising families, is to take control of their own spending and to spend on what is important for their own families, whether that is purchasing their first home or putting their kids in a new course.

[Budget Implementation Act, 2019, No. 1, April 12th, 2019]

Mr. Speaker, I thank the member opposite for her continued advocacy on behalf of her constituents and for indigenous peoples in Canada. It is a contribution to this House and it is an important voice that is being heard.

In the work that was done on Bill C-91, which is the indigenous languages act, first, we took the important step of co-developing that act, meeting with first nations, Métis and Inuit leaders around the country. I participated in those consultations, as did the former minister of heritage, as well as the current Minister of Heritage.

Secondly, we have tabled historic legislation, because we know that the policy of assimilation manifested by the residential school system was one of gross assimilation and effectively cultural genocide, as was described by Beverley McLachlin. We know that when we restore language capacity, we restore people's connections to their culture, their self-esteem and their education, and their economic outcomes improve.

With respect to this specifically, this issue was raised by the TRC calls to action 13, 14 and 15 and were responded to by virtue of tabling this very legislation. The monetary amounts complement the important statutory instrument.

With respect to the committee issues that she is raising, I am not aware of how committee proceedings proceeded, nor what the basis was for making a determination or predetermining who would fulfill the role of the official commissioner.

I will always stand behind our government's commitment to indigenous reconciliation and the fact that it informs every single mandate letter for every single minister in this cabinet, the fact that we have tabled language legislation, child welfare legislation and that we have lifted 81 boil water advisories and are on track to continue to lift all of them by March 2021.