Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 56 - Evidence - February 27, 2019
OTTAWA, Wednesday, February 27, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 4:18 p.m., to give consideration to the bill; and, in camera, for the consideration of a draft report.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, we will continue our consideration of Bill C-58, an Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
It is my great pleasure to welcome the Honourable David Lametti, Minister of Justice and Attorney General of Canada.
[English]
Welcome, minister. It’s your first appearance at this committee. It’s supposed to bring you good luck. All the members around the table wish you good luck in your new assignment. You will become familiar to this committee through the weeks and months ahead because many other bills will be referred to this committee by the Senate Chamber. We will certainly be happy to welcome you and the officers of the department, to whom we have always paid great attention. They will certainly be able to inform you accordingly.
You know the procedure, I’m sure, because you have had the opportunity to get experience with the workings of parliamentary committees. We welcome your opening statement. Following that, honourable senators will have an opportunity to ask questions or make comments on the subject to which you have been invited to testify today.
I note that you are accompanied by Nancy Othmer, Assistant Deputy Minister, Public Law and Legislative Services Sector. Welcome, Ms. Othmer.
[Translation]
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you to everyone for being here this afternoon. I would like to start by stating that I am here to work collaboratively with you. Justice is important to me as it is to you, and I am here to work in good faith on this file, and also on others we are studying.
It’s my pleasure to be here today to speak to this committee about the amendments proposed by the Government in Bill C-58. I know this committee takes its responsibilities very seriously, and the study of this bill is a case in point.
Bill C-58 represents an important step forward towards a government that is open by default, and that makes information of interest to Canadians freely available on the Web. The bill significantly raises the bar for government transparency in Canada. I know that the former President of the Treasury Board and Minister of Digital Government has already appeared before you to answer questions. Therefore, I propose to focus my remarks on the proposals relating to the disclosure of judicial expenses, as I know this is of most pressing concern to committee members.
[English]
As you know, our government made a commitment to enhance the openness of its operations. As technological innovations march on and the availability of information continues to expand, Canadians are increasingly calling for, and rightly expect, greater transparency and accountability in the operations of their government and public institutions. This includes greater accountability for the expenditure of scarce public resources.
The operations of the courts and administration of judicial expenses are not immune from these expectations, nor should they be. Public confidence in the courts and the judiciary is fundamental to our democracy. The moral authority and legitimacy of all in our institutions, not least the judiciary, relies on it. As in other areas, transparency in relation to the expenditure of public resources is key to maintaining public trust in our judicial institutions.
[Translation]
In crafting these proposals, the government sought an approach that would respond to public expectations for enhanced transparency while respecting the principle of judicial independence. This principle is fundamental to our democracy, and senators are right to ask how the proposals might impact upon it.
The starting point of these proposals is our conviction that greater transparency will foster rather than erode public confidence in the courts and the judiciary. We proceed on the basis that Canadians are fair-minded and reasonable and that, provided with sufficient information and context, they will make reasonable and informed judgments. I note that these very assumptions underlie the legal test for whether there has been an interference with judicial independence.
With respect, I would urge honourable senators to consider each of the judicial independence concerns that have been raised to date through the lens of the reasonable person. With this optic in mind, let me turn to the key criticisms of the proposals.
[English]
First, it is asserted that it is an infringement of judicial independence to have the Commissioner for Federal Judicial Affairs and, by extension, the Registrar of the Supreme Court, as members of the executive, determine what is covered by the judicial independence exemption provided by Bill C-58. It is proposed instead that the Chief Justice of the court in question or a committee of Chief Justices make the final determination regarding judicial independence.
The policy decision to have the Commissioner for Federal Judicial Affairs and the registrar make these determinations rather than the judiciary was deliberate. They are arm’s length from the core executive and were established by Parliament precisely to protect judicial independence. They have the mandate, expertise, relationships and context to ensure that judicial independence is respected. Indeed, this is their stock in trade.
We are confident that having the Commissioner for Federal Judicial Affairs make decisions relating to disclosure of expenses will ultimately maintain public confidence in the administration of justice.
I would go so far as to say that because Chief Justices may be seen to have a stake in the outcome, having the Commissioner for Federal Judicial Affairs exercise the exemption helps insulate Chief Justices from public criticism. This both protects the judiciary and upholds public confidence since the Commissioner for Federal Judicial Affairs is one step removed from the process. He cannot be perceived to have any vested interest.
I understand the commissioner has already taken steps to establish an advisory committee on the implementation of the new obligations. I am confident he will work collaboratively with Chief Justices to ensure that judicial independence is well protected. Likewise, I expect the commissioner to ensure that as much information as possible is disclosed to meet Canadians’ expectations of transparency in the use of public funds.
And where there could be an impact on judicial independence resulting from the release of information, Canadians will understand and expect that it be protected from release for that very reason. I would also note that the provisions touching on the judiciary would only come into force one year after Royal Assent, which will provide plenty of time to implement any new obligations.
[Translation]
I now turn to the concern that the proposals have a disproportionate impact on itinerant courts, suchas the Federal Court and the Tax Court of Canada, because of the greater travel costs resulting from the operation of these courts, and that disclosure of this information would consequently undermine judicial independence.
I do not take the concerns of itinerant courts lightly. In many parts of our vast country, the delivery of justice relies on the willingness of judges to travel to remote communities, often in difficult circumstances. While extensive travel demands are particularly acute for the judges of our federal courts, they are a reality for many provincial and territorial superior courts as well.
However, I believe that concerns that high work-related travel expenses for some judges could somehow be used to undermine public confidence could be addressed by providing the relevant contextual information to explain the expenses. For example, we could point out that judges of federally-established courts such as the Federal Court and Tax Court of Canada need to travel so frequently because of the Ottawa residency requirement. The same is true for judges having to travel long distances in the territories and other remote regions.
[English]
I would be happy to address other concerns about impacts on judicial independence when responding to your questions. However, before closing, I would like to speak briefly to suggestions that we move away from an individual expense regime and instead publish information on judicial expenses aggregated by court.
The government has listened carefully to the concerns raised by witnesses appearing before this committee and in the other place. The robust discussion of the impact of these proposals on judicial independence has not only ensured that parliamentarians are fully informed but in my view fosters public confidence in the vitality of our institutions that support our democratic system.
The discussion before this committee has been unusual in that it has permitted Canadians to hear the perspective of the judiciary directly from judicial representatives. Canadians can have confidence that the legislation that is ultimately passed by Parliament will have benefited from a full discussion of all the relevant policy considerations and constitutional principles.
In terms of proposals to aggregate judicial expenses, the committee has heard some strong arguments in favour of this approach and will properly give these arguments serious consideration. However, I would like to add some additional considerations to the mix.
The publication of aggregate expenses would have a differential impact depending on the size of the court and risks either overshooting or undershooting the mark. In the case of small courts, it could leave the judges feeling almost as exposed as under an individual expense regime. By contrast, in the case of very large courts, aggregate numbers may be almost meaningless.
Additionally, the release of only aggregate expenses could leave Canadians wondering what the global amounts are paying for. This highlights the need, under an aggregate approach, for complementary measures to make up for the loss of transparency — at a minimum, the publication of the specific policies under which claims are processed and administered. Indeed, if such requirements were not included in the legislation itself, I would expect that the judiciary, and the commissioner and the registrar, would ensure that parallel accountability measures were in place, as I know they are as concerned as the government about responding to Canadians’ legitimate expectations for transparency in the expense of public funds.
Finally, to the extent the approach shifts from individual to aggregate expenses, the rationale for the proposed judicial independence exemption recedes. Were such changes introduced to the regime, the scope of the judicial independence exemption may well need to be adjusted accordingly.
[Translation]
Any alternate regime including one involving aggregate expense must be carefully calibrated to take into account the multiple factors at play. Ultimately, any amendments to Bill C-58 must meet Canadians’ expectations of enhanced transparency, respect the fundamental principle of judicial independence, and foster public confidence in our judicial institutions.
[English]
With that, I will be pleased to answer your questions.
[Translation]
I will be pleased to respond to your questions.
The Chair: Thank you, minister. Several senators would like to continue this discussion with you.
Senator Boisvenu: Minister, welcome to the committee. We would like to see you as often and at the earliest opportunity when you are invited to appear.
I truly appreciated your presentation on the judiciary. I will let Senator Dalphond ask you questions about that later. I will be focusing on other aspects of the bill we are studying.
The Senate Law Clerk appeared before the committee last week. I asked him a question regarding information circulating in the Canadian Armed Forces to the effect that codes are used in documents subject to access to information requests to prevent specific people from being identified. Therefore, without the key to the code, the people named in the documents cannot be identified.
Is there a provision in Bill C-58 that prohibits the use of codes when a department or government organization drafts official documents? I am referring to official documents concerning the armed forces because this is now public knowledge. In short, we must prohibit the use of codes in official documents because when a coded document is received it is practically impossible to obtain specific information.
Mr. Lametti: I don’t have the answer in my notes for that particular case. However, there is always the possibility of getting an exemption to protect judicial independence overall. So that could be part of the answer. I’ll ask Nancy Othmer if she has a more specific answer in this case.
[English]
Nancy Othmer, Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice Canada: If I understand the question correctly, I’m not sure there’s anything specific in the current proposal to address your question. Maybe you could suggest to me why you think that would be a necessary aspect of the proposal, because I’m not quite sure I understand the underlying concern.
[Translation]
Senator Boisvenu: According to a Canadian Forces member who appeared before us, searches in the armed forces archives are based on the use of codes. For example, if Corporal Lemay is on trial against the armed forces, and you want information about the corporal, the archival documents contain a code. So Corporal Lemay won’t be called by his name. He might have the designation “rabbit” instead. This makes it almost impossible to find information on specific cases due to the use of these codes. So will the Access to Information Act prohibit the use of these codes that end up concealing information that may be needed in the future?
Mr. Lametti: Right. So it’s more about doing research using the act.
Senator Boisvenu: Exactly.
Mr. Lametti: Unfortunately, that’s a question for my colleague Minister Philpott. What concerns us here is the issue of judges and judicial independence. I can forward your question to my colleague and come back to you with an answer.
Senator Boisvenu: If it’s virtually impossible to find any information because of these codes, do you think that’s a breach of the Access to Information Act?
Mr. Lametti: Again, I’ll forward your question to my colleague.
Senator Boisvenu: Okay, thank you. The destruction of government documents under the Access to Information Act is a crime. In my opinion, this is as serious a crime as if documents were requested in court proceedings. We all know that on February 7, a file was released publicly, which made headlines, the famous SNC-Lavalin file. Since then, have no documents in the possession of the federal government been destroyed?
Mr. Lametti: This doesn’t relate to Bill C-58—
Senator Boisvenu: But it’s related to the Access to Information Act. If the document is destroyed, it prevents access to the documents.
Mr. Lametti: I am bound by the sub judice convention, according to which I cannot express an opinion on matters currently before the courts. There is a gap between Parliament and the courts, and I must respect that.
Senator Boisvenu: So you don’t know, since this matter came to light, whether documents have been knowingly destroyed within the Department of Justice, which could impede the Access to Information Act.
Mr. Lametti: As a matter of principle, I can’t comment on this matter, and it’s inappropriate to ask a question about it.
[English]
Senator Gold: Minister Lametti, it’s so nice to have you here with us. I know other colleagues will want to return to the question which was the focus of your remarks. I do have a question on solicitor-client privilege. It was not discussed much before the committee, but I wonder if you could help us understand it better.
There are changes proposed in Bill C-58 that explicitly give access to information notwithstanding solicitor-client privilege as opposed to privilege in general, as the current act provides. This issue was raised by the Canadian Bar Association in a couple of different ways and also by individuals before us. They raised two concerns, and I would ask you to comment on them.
First, as we know, the Supreme Court and the Federal Court have set quite demanding requirements for any legislation that seeks to compel the disclosure of privileged records. The evidence must be absolutely necessary to achieve the legislative purpose. The approach must minimally impair the privilege, and there must be an opportunity for the lawyer’s client to assert and protect that claim of privilege, and there is nothing in Bill C-58 that incorporates such criteria.
Second, there is also nothing to ensure that the Information Commissioner or Privacy Commissioner are necessarily legally trained. Even if they are, they’re not judges. So the bar and others have suggested that we simply maintain the status quo here to protect both the role of judges and the courts by insisting on protecting solicitor-client privilege.
Could you comment on whether you think their concerns have merit or whether they’re missing the mark somehow?
Mr. Lametti: As you know from recent events, our government, and in particular my office, takes the principle of solicitor-client privilege very seriously. We do have a number of recent decisions in 2016 by the Supreme Court in that regard.
In our view, the bill meets the requirements set out by the Supreme Court.
First of all, the privilege will continue to abide. It won’t be waived at any point. It does allow for the commissioners, in a very central and one-step-removed position, to be able to assess without ever waiving the privilege. So we do feel this step is in full constitutional accord with the principle of solicitor-client privilege.
Senator Gold: What the bar suggested, in order to ensure that he or she who makes the decision as to whether or not something is subject to the privilege has the experience, the capacity and the training to do so, that it would be better if a claim could go to the Federal Court to be reviewed. Do you want to comment on that?
Mr. Lametti: That is an objection that has been raised. I’m well aware of that. It would force the court to often be deciding on solicitor-client privilege with respect to its own court. So we thought that making the decision point a neutral place would be more effective, without in any way undermining the principle itself.
Senator Gold: But I think, unless I’m incorrect, it’s not only claims of privilege made by a court or a judge. It’s a more general provision in the act. So it appears in a number of different places, without having to open up my big binder to find it.
Mr. Lametti: Again, I certainly understand the concern raised by the Canadian Bar Association, the Federation of Law Societies of Canada and others.
The idea, once again, is to create a neutral decision point that is effective, that is consistent and that will never be in conflict. Although I appreciate, as you have raised, there may be other instances where there isn’t a conflict. This is just a better way to deal with a very delicate and important principle of our system.
Senator Gold: Thank you.
[Translation]
Senator Pratte: Thank you, minister, for being with us today. In principle, I am always in favour of the greatest transparency possible. In the case of judges’ expenses, I must say that I have some hesitation, for two reasons. I would like to hear your comments on these two reasons.
I am not sure that the reasonable person test can be used. I know it’s a very useful concept in law, but in the world of media and social media, I’m not sure that this criterion is good. I don’t know how the public will react or understand if judges’ expenses are published on an individual basis.
Second, unlike us who can easily defend ourselves if a scandal ever occurs, whether based on facts that are true or false, in the case of judges, the question is: Who defends the judge whose expenses are controversial? In principle, it should not be the judges who have to defend themselves. Is it the chief justice? Is the chief justice prepared and trained to do so? Is it the commissioner or the registrar in the case of the Supreme Court? Who defends the judge who is caught in a controversy? This is my second concern with respect to judges’ individualized expenses.
Mr. Lametti: I share your global values on this issue. I think the Canadian people have already been very reasonable about the House of Commons and the Senate. You have taken very important steps for your institution. We did the same thing. So far, I sincerely believe that the people of Canada have welcomed what has been done, either in the Senate or in the House of Commons. I think our fellow citizens are very reasonable, and I think they will accept the effort that is being made to make the system more transparent.
I believe that the role of defending judges is that of the commissioner, in collaboration with the registrar of the Supreme Court. In my opinion, we will develop the reflex to defend judges. The system also includes safety valves, in that it is possible to exclude certain expenses, which will facilitate the acceptance of the system.
I am therefore confident that the system will work well, especially over time.
Senator Pratte: You don’t share the concern of people who say that giving an increased role to the commissioner or the registrar is giving the executive some form of control over the judiciary?
Mr. Lametti: Not at all, because the commissioner will be independent. He won’t be part of the executive. He will be appointed by the executive, but he will play an independent role. I sincerely believe that this will protect judges. If the commissioner makes the decision to exclude certain information, it will be accepted as a good decision, precisely because he is independent of the judicial system and the executive. Having a role in between the two will help him in his work.
Senator Pratte: Don’t you think that proceeding in a consolidated fashion would be a first step in an environment that is not at all used to this kind of transparency? Consolidating expenditures could be an interesting first step to eventually go further, as the Access to Information Act will be revised in one and five years. Couldn’t this approach be an interesting first step?
Mr. Lametti: Yes, perhaps. Without making promises or creating expectations, I am ready to hear ideas. I am very sensitive to the fact that some courts have significant expenses, not only the Tax Court of Canada and the Federal Court, but also some superior courts across the country, especially when it comes to serving minorities. I am very sensitive to the argument, but the transparency and integrity of the system must always be protected.
I am here in good faith to hear your ideas. I am not here simply to say that the act is the act. I’m here to listen.
Senator Pratte: Thank you very much.
Senator Ringuette: Thank you for being here, minister. My question is perhaps along the same lines as Senator Pratte’s. As senators, over the last five years, we have experienced a significant expenditure-related phenomenon. There was a public outcry, and with reason, to increase transparency and make all these documents public on a regular basis, as called for in Bill C-58. Senator Pratte talked about the reasonable person test. I follow the news, however, so far I haven’t seen any criticism or questions about judges’ expenses, on an individual or collective basis. Where does this whole issue come from to say that, from now on, judges, on an individual basis, will have to be accountable?
[English]
I haven’t heard any public outcry. I haven’t even seen a media article questioning an expense. I need to understand where this comes from.
[Translation]
There is always an element that leads to a bill. I don’t consider that to be the judges’ expenses, but I defer to your reliable answers.
Mr. Lametti: Thank you for the question. First, we have a responsibility as a government to oversee government spending in all its aspects. This responsibility is quite heavy and choices must be made. We can’t keep raising taxes. At some point, we have to decide and say that it’s enough or that it’s not enough. We must act responsibly with public money, especially when difficult choices are required.
Second, the experience in the House of Commons and the Senate has been very positive. Transparency is a priority for the government. So you have to try to be transparent everywhere.
We have great respect for the judicial system. Among my mentors, moreover, are judges. They have a very positive impact on me. So I have a lot of respect for them. However, it must be admitted that judges are well paid. They deserve it and so do we. We must therefore be responsible with taxpayers’ money. We must try to find a balance between the transparency and accountability of our government, with judicial independence on the other side of course.
Senator Ringuette: Thank you.
Senator Carignan: Minister, I’m glad to hear you talk about transparency. It’s entirely appropriate, especially with this bill. I was looking for your mandate letter, and the only one I found was the one addressed to the former minister, Ms. Wilson-Raybould. The only changes to the French version are “Monsieur le ministre” instead of “Madame”. Even the conclusion was the same, because it still says “Veuillez agréer, Madame la ministre, l’expression de mes sentiments distingués”.
Is this the mandate letter you were given? I understand that the mandate you received from the Prime Minister’s Office is exactly the same as that of the former minister.
Mr. Lametti: I understood. I admit that I have not looked at the letter, but I had understood that it was the same letter as that of my predecessor.
Senator Carignan: You haven’t read your mandate letter?
Mr. Lametti: I was informed that it was the same letter as that of my predecessor.
Senator Carignan: We learned today that, as soon as you were appointed, you were to have a discussion with the Prime Minister’s Office about SNC-Lavalin and that he would have clear instructions about that. However, I don’t see them in your mandate letter.
Mr. Lametti: I’m here to talk about Bill C-58. There are certain solicitor-client privileges, and there are cabinet confidences. There is also a privilege, as lawyers know, over litigation. Since a case is currently before the courts, I can’t comment on it, so as not to influence the proceedings.
Senator Carignan: I understand that you had discussions with the Prime Minister’s Office about your mandate that are not reflected in your mandate letter.
Mr. Lametti: That is the privilege of cabinet and at its discretion. I cannot comment on that. Therefore, I have no comment.
Senator Carignan: Several witnesses told us about the obligation to document. There should be a provision in the legislation that requires documentation. There seems to be a practice in government where people put their pencils on the table, talk to each other and avoid documenting meetings, minutes and agreements in order to avoid having to produce these documents. Is this a practice that has been reported to you?
Mr. Lametti: With respect, I have no comment on that because it is part of the privilege.
Senator Carignan: Have you ever heard of a practice where people don’t take notes to avoid having to produce a document, as several witnesses have told us?
Mr. Lametti: I have no comment on that.
Senator Carignan: Were any notes taken during your meeting with the Prime Minister when you were given your mandate, notes that could be accessed in 75 years, when the legislation is revised or exceptions are set out to end cabinet secrecy?
Mr. Lametti: This issue is related to the discretion of the cabinet, the Council of Ministers. I therefore have no comments on the issue, either on the meetings or on the practices during the meetings.
Senator Carignan: A number of people talked to you. In your experience, have you ever heard of officials not taking notes during certain meetings to avoid documenting the content of the meeting?
Mr. Lametti: You understand that I cannot comment on that.
[English]
Senator Gold: With the greatest of respect for my colleagues, we’re very grateful for the minister to be here today to speak to this part of the bill. We had hoped to have the Minister of Justice address us even at an earlier stage, but the question, with all respect to my colleague Senator Carignan, about matters which have been repeatedly answered are simply not in order.
I want to go on record and to ask you, Mr. Chair, to make sure that questions that follow my intervention stay focused on the reason for which we invited the minister here in the first place.
[Translation]
Senator Carignan: The minister repeatedly mentioned transparency in his answer to the question he was asked. We are told that information will be published regarding the mandates of ministers, including the mandate letters. I have focused on the letter and the mandate the minister received from the Prime Minister’s Office. The obligation to document has been raised by witnesses.
Let me say right away that I will be proposing a draft amendment, requesting that the legislation be amended to include the obligation to document the content of meetings and the decision-making process. Other witnesses have told us that they have seen this practice. I feel that all my questions have been legitimate and relevant to the bill. I understand that the minister has invoked cabinet secrecy or a certain privilege. I hear him, and I think his point of view has been heard.
Senator Gold: Can I reply to the answer, Mr. Chair?
The Chair: Since the minister is appearing before this committee for the first time, since the mandate letter accompanying his appointment is public and invokes transparency, I think the question is perfectly admissible. Clearly, the witness can determine for himself whether he considers that the question put to him is covered by cabinet secrecy or by solicitor-client privilege. I think the witness responded very well by saying that he was not in a position to give a specific answer, because he felt bound by the principle of privilege, the principle of cabinet privilege or of the solicitor-client relationship. Therefore, the questions were entirely admissible. They were not directly related to a particular case being debated or discussed in a committee in the other place. As long as the questions fall within the minister’s responsibilities, I believe they are legitimate.
However, the witness is always free to invoke privilege if he feels it is his responsibility to invoke it to cover the confidentiality of the information. I believe that, with this opinion, which I respectfully submit to you, we are in a position to continue, with Senator McIntyre, followed by Senator Dalphond.
[English]
Senator McIntyre: Thank you, minister, for your presentation. I will not address the issue of judicial independence but another aspect of Bill C-58.
My first question is one of clarification on the issue of the commissioner’s orders. As I understand, under Bill C-58 the commissioner’s order will be legally binding without the need for certification. The current commissioner disagrees. She prefers to have the orders certified.
In a way, I understand the commissioner’s concerns for this reason: If a government institution complies with the commissioner’s order, that’s the end of the matter. On the other hand, if an institution doesn’t comply with the order, it could seek a review of the matter by the Federal Court. Assuming that a government institution neither challenges nor complies with an order, the commissioner could enforce the order through mandamus proceedings, which is a long process and obviously will delay access to information.
In your opinion, is the commissioner’s order legally binding or, as recommended by the commissioner, should it be certified by the court?
Mr. Lametti: The commissioner obviously raises a valid concern. There’s a balance here. Most of the time, government institutions are quite respectful of the commissioner’s orders and will do what the commissioner says, therefore not necessitating a certification in every case, which would create an additional cumbersome layer at every single point for every single order.
For the most part, the orders will be complied with. Where they are not complied with, there is a safety valve, which is the mandamus order. There is always that stick or hammer, if you will, that can be used in order to compel more recalcitrant participants. But, again, we have a very respectful system. Orders of government do tend to comply with orders of commissioners in our system. In the average run-of-the-mill case, the majority of cases, we feel there isn’t a need for that additional step of certification.
Senator McIntyre: My second question has to do with meetings between staffers and lobbyists. Minister, as you know, the lobbyist registry does not specifically indicate which lobbyist met with an office-holder. Would you support an amendment to make any meeting between a lobbyist and an office-holder part of proactive statements?
Mr. Lametti: Again, as I said at the outset of my remarks, the justice part of the bill is that which pertains to the judiciary, independence of judges, et cetera. I can channel your question to my colleague, who is responsible for that part of the bill.
Senator McIntyre: Please do. Thank you, minister.
Senator Pate: Thank you, minister, for appearing.
I want to go back to the first question that Senator McIntyre asked, because we’ve had evidence here and from the commissioner before other committees around the length of time it takes and the barriers for certain groups such as Indigenous peoples and prisoners to apply. In fact, Correctional Service of Canada is one of the worst offenders in terms of not complying with time frames and, as the commissioner has also indicated, has not complied with orders or direction from the office.
Given the vulnerability and the access to justice issues presented by the difficulty of them even getting access, I used the example of Ashley Smith previously. It took us two visits to the Federal Court after the Privacy Commissioner ruled that Correctional Service of Canada had not fulfilled their obligations to produce records, and we still didn’t get records until a different process was implemented.
Could we get documents from you about how often private organizations or individuals have had to go to court to enforce these records, the role of the Department of Justice has been in that, and the advice they’ve given to the Privacy Commissioner in those instances?
Mr. Lametti: We can certainly do that.
Senator Pate: That’s great. Thank you very much.
[Translation]
Senator Dalphond: Minister, you will not be surprised that I thank you first for being here today. We had been waiting for the Minister of Justice to appear for some time. We heard from the Treasury Board, whose perspective reflects the views of managers of public funds and that is defending itself, but we have not had the views of the Department of Justice.
We have heard the concerns of the Canadian Superior Courts Judges Association and the Judicial Council with respect to judges, which have strongly resonated with me personally, as a former judge. I am delighted that you are here today, and that the Department of Justice is concerned about the same issues as I am, and that my professional inclination is shared by other lawyers in the Department of Justice, which may also be the case with our chair, given some of his previous comments.
That being said, minister, I understand from your presentation that you are open to a solution that would achieve two objectives, which are both of great importance. One objective is transparency in the use of public funds, because in a democracy, taxpayers’ money is used, and they have the right to know how it is used. Second, we must also put in place a system that upholds judicial independence and takes into account the fact that judges are appointed for life, asked to speak through their judgments, and to remain silent outside the courtroom. Politicians do the exact opposite, as they talk a lot in the Houses, in the Senate and in the House of Commons, who make speeches everywhere and take positions on sensitive issues, for which judges would be criticized if they did.
We must therefore understand that, when we manage or are members of a judicial institution, we are subject to rules that are very different from the rules of Parliament. We have to be careful when comparing a senator’s office, a minister’s office and a judge’s office.
During the hearings, it also became clear to me that judges were not against transparency. In their submissions, they made a suggestion, solution B, which is this—
[English]
Proactive disclosure, but based on a court, just on the aggregate of the expenses incurred by the judges as a whole instead of individually.
Am I right to understand that this is something you’re open to? You say at the same time that we have to make sure that the information that would be released in the aggregate is sufficient enough to provide to Canadians the ability to judge how the money is spent and what the real cost of justice is, not only of the courthouse and the salary of the judges, but also the ancillary expenses related to the exercise of judicial functions. You say this has to be done in such a way that preserves the integrity of the judicial systems and provides enough public transparency.
I think we are close to an agreement between this and what was said by the judges and some of the witnesses, namely scholars, who have testified before this committee. You said we should be mindful of the fact that some courts are smaller than other courts.
Could you elaborate on what you have in mind? If we go for an aggregate reporting in order to provide enough information but to account for the fact that some courts — and I will give an example I’m familiar with, which is the Prince Edward Island Court of Appeal, where they have a very good Chief Justice and three other judges. So, reporting in the aggregate is very close to reporting on an individual basis.
Mr. Lametti: I’ll answer in English because the question was posed in English.
Let me say again that I’m quite happy with the current bill in terms of the balance it strikes between being transparent and balancing the principles of judicial independence.
That being said, and without wanting to create expectations that are too high, I’m willing to listen to you because I know you have put, as a committee, a great deal of work into, in particular, listening to judges and members of the bar association. It’s a particular advantage you have had, and therefore I’m going to listen to you. In effect, I’m throwing the ball back in your court to say, what are you thinking?
I have, in my opening remarks, mentioned precisely the question between comparing the Ontario General Division, the Ontario Court of Appeal, to Prince Edward Island. The Supreme Court of P.E.I. is five or six judges, I believe, and then there are three or four on appeal. Effectively, as you have identified, there is the potential for identifying, even in the aggregate, expenses of particular judges.
I’ve also mentioned a particular sensitivity toward judges at the Superior Court level who may have to serve linguistic minorities across Canada and, therefore, will travel more. It may be the case that a francophone judge in New Brunswick or Manitoba will actually have to travel more often to meet the needs of the population in terms of getting a fair hearing. It would seem to me that we would need to weigh that in terms of how we move forward.
I have also said that I think the Canadian public is very reasonable and will understand, under the current scheme, that certain judges will have spent more because they are serving particular populations, or certain courts will spend more because they are itinerant courts — the Tax Court or the Federal Court.
I’m happy with the mix right now, but I’m interested to hear, based on what you have heard, what potential ideas you have, and I will work with you in good faith. But I’m going to say — I’ll put it quite bluntly — I think the burden is on you to convince our government.
Senator Dalphond: The proposals should be coming from us.
Mr. Lametti: That’s right, and we will work together.
[Translation]
Senator Dalphond: My second question is related to the first. Another concern expressed by judges was that the exemption will apply significantly less to a system that provides a comprehensive report per court, as it will be increasingly difficult to attribute the numbers. The risk of compromising judicial independence is therefore reduced. The exemption should not apply often, but judges expressed concern that the exemption may be given by the Commissioner for Judicial Affairs rather than by the Chief Justice of the court concerned, arguing that the Commissioner for Judicial Affairs is a member of the executive. Mr. Giroux, could you explain to us the role, the position, of the Commissioner for Judicial Affairs in relation to the Minister and the Deputy Minister, and so on? To whom does the commissioner report, how are they appointed, what mechanisms are in place to ensure their independence so that the public can see that decisions are not made by the executive, but by an independent third party?
Mr. Lametti: The goal is to create a commissioner position that is independent of the department. Yes, the commissioner is part of the department, but has a certain independence and distance. The person will work with the Chief Justice to uphold the principles of judicial independence. So, physically, the commissioner is someone who has some distance from the minister.
That being said, it will be beneficial to judges, because the person will take responsibility for publishing or not publishing certain information. As a result, no one will be able to say that judges are protecting themselves, because an independent officer will make the decisions.
Senator Dalphond: I understand that the office operates independently of the Department of Justice. Is the Commissioner for Judicial Affairs accountable to you?
Mr. Lametti: I’m going to ask Nancy to clarify that.
[English]
Ms. Othmer: We work closely with both the Registrar of the Supreme Court and also the federal commissioner with respect to dealing with human resources and their administration. We keep in close contact, but they’re very independent from us. They have their own statutory creation and responsibilities.
The idea is they were created essentially to help safeguard judicial independence from the Attorney General’s office and the Department of Justice. We have a good working relationship with them, but they fulfil their mandates under their statutory authorities on their own, independently from us.
Senator Dalphond: Thank you.
Senator Batters: Minister, the access to information regime right now seems to be pretty much broken. Increasingly, journalists and others share their ATI horror stories on social media about ridiculously lengthy delays sometimes stretching on for years and pages of fully blacked-out information. I brought a couple of them with me as an example. Every once in a while you see these on social media.
One is from Alex Boutilier of the Toronto Star. On August 21, 2018, he tweeted “Loved ATIP’s CSE,” and this is how the page looked, with everything on it completely blacked out.
Another one on July 17, 2018, again from Alex Boutilier: “PCO completely censors @karinagould’s briefing notes. You can’t even know the titles,” and then shows this. You don’t even know the title of what that particular briefing note was.
Bill Curry from The Globe and Mail tweeted, on July 31, 2018:
This is increasingly what documents look like when you make a request under the Access to Information Act.
And he shows another one with the entire thing blacked out.
Minister, in the last election the Trudeau government promised to reform the ATI regime, claiming a commitment to openness and transparency. Frankly, recent events have shown that it is a bit of a struggle for this government. But with access to information responses like this, journalists and others are now openly mocking that commitment. How will Bill C-58 improve these types of unbelievably secretive and delayed access to information responses even one a little bit?
Mr. Lametti: As I said at the outset of my remarks, I, as Minister of Justice, have responsibility for the part of the bill that pertains to the independence of judges in the system and how we will maintain that.
The issues to which you are referring have been addressed by the primary carriers of the bill, my colleague ministers, Minister Gould and now Minister Philpott. I can transfer your concern, but I believe they’ve already appeared — at least Minister Philpott has, or was it Minister Brison at the time? I believe that minister has already appeared in front of this committee to answer that kind of question.
Senator Batters: Minister, this is a whole-of-government issue.
Mr. Lametti: That being said, we have responded through this legislation to try to improve the system globally. Certainly, I think the practices of our government are a vast improvement on what our predecessors did, so we are moving in the right direction.
Senator Batters: Minister, really, this is a whole-of-government problem. These particular reporters are indicating that this is a worse problem than it was before, despite your government’s promises. How do you react to that?
Mr. Lametti: Again, I can’t make comment on the specific examples you’ve given without having the context.
We are moving forward with this piece of legislation. We think it’s a vast improvement over what we’ve had before, and I am confident that we will get this to a better place.
Senator Batters: Is it the justice lawyers who have drafted government amendments on this particular bill?
Mr. Lametti: Well, as you know, there are justice lawyers who work in the Department of Justice. There are also justice lawyers who are seconded throughout various ministries across the whole of government. That has been the practice in government for a number of decades now in Canada, and I can’t say which actual lawyers drafted actual parts of the bill.
Senator Batters: But I’m asking for the Senate committee. Are you aware, at this point, if justice lawyers have drafted a significant number of government amendments that will be coming to this committee?
Mr. Lametti: We are happy with this piece of legislation as it stands. As I mentioned to Senator Dalphond, we will work in good faith if there are proposals coming out of this committee.
Senator Batters: So you haven’t drafted any? There aren’t any?
Mr. Lametti: I believe there are several examples of potential draft amendments, but I don’t have them in front of me and I’m not sure they pertain to my part of the bill.
Senator Batters: We’ll see. Thank you.
Senator McCoy: First of all, I owe you and the chair an apology for being late. I missed the bus. I got turned around in the old train station, the new Senate building, and by the time I arrived, I missed your comments. I’ll read them in the transcript.
Therefore, my question may be beyond your scope, but you did talk a moment ago about mandamus, so I put my hand up. We’ve had evidence and conversations with retired Federal Court judges. I’ve looked at their locus classicus, if you can say it that way, and the case defines what they do when they think about giving mandamus. It’s quite complex. They don’t give it very often. One of the things they say is they won’t apply it if the official has discretion to act. It must be something that the official has no discretion but must do. So we’re pushing back on that. Maybe I’m wrong, but when you’re talking to your colleagues, you might wish to keep that in mind as well.
I conclude my comments not with a question but with a deep appreciation of the fact that the bill will go into immediate review, because I think it doesn’t do you and your leadership on open data on that side of the house justice, if I can make a pun. Thank you very much.
Mr. Lametti: Thank you for those comments. I have had a preliminary discussion with the commissioner, and certainly the mandamus question. As I mentioned, there is a balance there, and it is a topic of discussion that will come up again. I will do my best to address that issue with my colleagues. I thank you for that.
Senator McCoy: Thank you.
Senator Lankin: Thank you, minister and deputy, for being here. We appreciate it.
Senator Dalphond made reference to being a lawyer and the bias of many around the table, but not all. There are a couple of us that are non-lawyers. I’m one of them.
If I had the leeway, one of my first questions would be to Senator McCoy. Afterwards, I’ll ask you what locus classicus is. It’s beyond me.
Minister, I appreciate the instruction you’ve given us that you can really only significantly comment on your area of the bill. You’ve restricted it primarily to the issue of the judiciary and the review of expenses, so you can tell me if this is out of your scope of the bill. I’m particularly interested in clause 21, which amends section 45 of the act. It’s about the issue of de novo versus judicial review. Is that something that the Department of Justice would comment on if I put my question forward?
Mr. Lametti: It is, but I’m actually going to turn that over to my deputy for a specific answer.
Senator Lankin: If I may, the bill, as it amends the act, replaces current provisions with a de novo review. In my past experience on administrative law tribunals, the principle of judicial review and respecting the expertise of the body that has looked at this is well established, and there’s good reason for it. If there was a judicial review, we would have the findings of the commissioner based on the evidence and the information that was brought forward.
I’m a bit concerned about moving to a de novo situation where new evidence can be presented and evidence that wasn’t considered. It feels to me like there’s a very significant opportunity to undermine the role of the commissioner. We just talked recently here about whether we need to register the decisions or not, and whether they have the effect of a court order not in compliance.
My experience around compliance is not quite as positive as you have suggested. I truly believe that the majority of public service departments do their best, but there are outliers. Some of these outliers — I don’t have the statistics to prove this right now — have been subject to more appeals to court or themselves appealing to court around the decision of the commissioner. I’d like to understand the rationale for this, and I’d like to understand if it’s open for discussion and persuasion.
Mr. Lametti: On the general point I’ve already undertaken to try to get more statistics on various bodies that perhaps don’t cooperate as much as they ought to, to put it nicely, I share your concern with respect to respect for the decision-making capabilities of delegated authorities and administrative tribunals. Under the mentorship of Rod Macdonald, who was my professor at McGill University, and under the mentorship of Justice Peter Cory, who was my justice at the Supreme Court, I have a healthy degree of respect for the decision-making role of administrative tribunals and bodies. So I share that.
With respect to the actual workings of the bill, I’m new to this job, so I will turn it over to my deputy.
Ms. Othmer: The first way I would like to answer your question is to reinforce the idea that a de novo review for the Access to Information Act recommendations that currently exist is the case at the Federal Court right now. So we’re not changing what currently exists.
What has changed, really, is that there’s an order. So instead of a recommendation, there’s an order in place that is subject to a de novo judicial review.
We had jurisprudence that suggested that the Information Commissioner’s recommendations, once they got to court, were really not a question of whether there would be deference to the recommendations. The court held that there would be a de novo look at whether the exceptions were applied properly, whether it was out of time, and the rest of the questions the court might face.
So the de novo is not new; it’s a continuation. What is new is the fact that the commissioner gets to make orders.
I’m going to go out on a limb and say that I think we understand that she probably currently would have made about 12 recommendations a year. Generally, government institutions work with the commissioner to resolve the issues and to respond to the access requests. Twelve is not a lot, and that’s for recommendations. I’m going to get real statistics for you, but I think 12 to 15 is what I think we have.
Now, with an order, I’m not even sure; I’m hopeful that will be even less now, and we will be working toward that. The order happens, and we have 30 days, as government institutions, to either object to the order or go forward.
At some point, let’s say we end up at a de novo hearing. We think the de novo hearing is a better opportunity to revisit procedural fairness concerns that may have occurred during the course of the investigation on three levels. Third parties, the actual applicants who are looking for the information and the Information Commissioner can all be before the court.
I think the Information Commissioner has said that she supports that view, that it’s a good idea to have an opportunity to represent others who might not be represented by lawyers, for example. So the de novo aspect of it, I don’t think, is particularly problematic from the Information Commissioner’s perspective. But we also think it’s a bit of a difference between the general administrative tribunals that you’re accustomed to.
I’m an admin law lawyer. De novo hearings are a little bizarre to me as well, but we think it works on a number of levels, especially fairness for the people who are actually asking to get their information.
Senator Lankin: Perhaps I wasn’t clear. I understand the current system. Part of the purpose of this bill is to elevate the regime and the importance of the regime. Moving from recommendations to orders elevates the role of the commissioner and the seriousness with which we would expect that departments, entities — whatever — will comply with those orders.
It doesn’t seem right to me that the commissioner then becomes a witness in a de novo hearing situation, and it doesn’t seem right to me that there is the possibility of new information being brought in. The decision is the decision. The order is the order. If there are things to be learned from it and corrected in the future, fine.
While I appreciate that someone might think there is greater fairness for applicants in this case, in the majority of cases, the reason we’re going to court is because the department doesn’t agree with the commissioner’s order. It’s not because they’ve said, “No, I don’t want you to release this to the person”; it’s the opposite.
I guess I’m disagreeing a little bit with the rationale, but that’s fair ball. I’m wondering if this is an area that we might have some further discussion with you, minister and deputy, about looking at bringing it to a judicial review regime.
Mr. Lametti: I would be happy to discuss that.
The Chair: Thank you, Senator Lankin.
I’m looking at Senator Boisvenu, who is on the second round. I know we’re committed to have you for testimony for an hour, Mr. Minister. We are past the hour, but I will understand that, since it’s your first visit, you will not be too strict with that. After the question by Senator Boisvenu, I will have the pleasure to conclude.
Mr. Lametti: Absolutely.
[Translation]
Senator Boisvenu: I also repeat our appreciation for having you at our disposal for more than one hour.
Minister, I would like to remind you that your 2015 platform included the following promise:
We will ensure that Access to Information applies to the Prime Minister’s and Ministers’ Offices...
Your platform also mentioned this, and I quote:
Government data and information should be open by default...
Why are emails exchanged between the Prime Minister’s Office and ministers’ offices not covered by Bill C-58?
Mr. Lametti: As I said at the outset, I am here to talk about the judicial independence aspect of the bill, because it is part of the responsibilities of the Minister of Justice.
We are in the process of fulfilling the promise made in 2015, step by step.
Senator Boisvenu: However, it will not be fulfilled in Bill C-58.
Mr. Lametti: As I mentioned, step by step, as a government, we are in the process of—
Senator Boisvenu: This bill will not be reviewed in five years or next year.
Mr. Lametti: Other measures have been taken, but they are beyond the scope of my visit today and they are the responsibilities of another colleague.
Senator Boisvenu: We received about 30 requests for amendments to the bill. Are a number of those amendments from the Department of Justice?
Mr. Lametti: A few, but I—
Ms. Othmer: None at all.
Mr. Lametti: None at all, no? All right.
Senator Boisvenu: Do we know whether the Prime Minister’s Office helped draft some of those amendments?
Mr. Lametti: To my knowledge, no.
Senator Boisvenu: It would have been helpful if an amendment had been submitted in respect of my first question, which was to make communications between the Prime Minister’s Office and the ministers’ offices accessible.
Mr. Lametti: I’m not going to comment on that.
Senator Boisvenu: I understand.
[English]
The Chair: It’s my pleasure to thank you, Ms. Othmer and Minister Lametti, on behalf of the committee. Your testimony has been much appreciated.
There are three points I want to submit to you for your consideration. The first is that one of the elements of our consideration in relation to judges’ expenses is the increased security risk that the identification of judges by their name would create. We have in mind, of course, the assassination of former Justice Alban Garon in 2007, a justice from the Federal Court. I think we owe it to his memory to be very careful if we move in the direction of opening the risk of identifying a judge when a citizen is not happy with a decision and might decide to start a vendetta with that judge, in particular. That’s a point of concern to us and I’m sure you share it.
In that context, I would like to refer you and your officers to an article published by Professor Karen Eltis and Justice Yigal Mersel, entitled Revisiting the Limits on Judicial Expression in the Digital Age: Striving Towards Proportionality in the Cyberintimidation Context. It will be published in the National Journal of Constitutional Law, so it’s fairly recent.
I understand when the bill was drafted, more than two years ago almost, that aspect of consideration was certainly not in the same context that is explained in that article by Professor Eltis on cyberintimidation in the context of judicial activity.
Finally, in relation to the point raised by Senator Ringuette, the sponsor of this bill, we have not been told, in any other system comparable to Canada, that there is such a system of disclosure of expenses with the name of the justices on the internet for all to see and comment and identify, unless we have been badly informed.
We are concerned that we are moving on new ground. There is no model we can refer to. Hence, there is the principle of precaution. When we’re moving in that direction, and since the bill offers the opportunity for a short review, we are concerned that we should take a step-by-step approach. That is the concern of some members around this table.
We wanted to share that with you, because that’s part of what we have to reflect upon in considering this bill at its final stage in this committee.
Mr. Lametti: Mr. Chair, there are examples in England and Wales, as well as Ireland, and we can provide them. We can furnish those examples moving forward.
We are aware of Professor Eltis’s article as well. We will take your comments into consideration as well as the comments to the committee.
[Translation]
Thank you for your requests, and we will try to work together.
[English]
The Chair: Thank you, Mr. Minister, and good luck in your new functions.
Honourable senators, the second part of the meeting was to consider the draft report, but I understand that Senator Boisvenu wants to raise a point.
[Translation]
Senator Boisvenu: With your permission, given the time we have left and the very important events happening in the other place, I would propose that we suspend the meeting until tomorrow.
Senator Pratte: With all due respect, I just don’t understand the connection to the events that are taking place in the other place. We have a job to do, we are going to do our job. We can start now and, if we don’t have time to finish, we’ll finish tomorrow. I don’t understand the connection with what’s happening in the other place.
[English]
Senator Batters: We are seeing today one of the major legal stories breaking in this country, and we only have about 20 more minutes left in our normal committee time. People have to get to other committees. I think rather than starting to deal with any discussion of observations, et cetera, it would be better to pick up tomorrow.
The Chair: Are there other views?
Senator Gold: I appreciate the interest that we all, as citizens, have in what is transpiring, but I have always taken the view that our work as senators is distinct and ought to remain distinct, and we ought to focus on the work before us. It may take us more than the 20 minutes to do this work, but I can see no principled reason why we wouldn’t start and be that much further ahead when we return to our responsibilities as senators.
Senator Dalphond: The last two days have been days where there were some tensions in the house. I don’t know how much we can achieve in 15 or 20 minutes tonight. If tomorrow you’re telling us that you will be more relaxed or you will come more prepared for the meetings and we can do more efficient business than arguing for the next 15 minutes, I will be one to consider that maybe we should adjourn and come back tomorrow with an open mind and be more efficient in our dealings to try to build a consensus between us. So far in this committee we’ve been working in a collegial way, and I’m interested to preserve that collegiality as much as we can.
[Translation]
Senator Carignan: I think we have a number of amendments; I myself have a number of amendments to review with the assistance of the legal drafter with respect to the drafting and argument of those amendments. It seems to me that we usually try to look at the amendments before we look at the final drafting of the report. As there are only 10 to 15 minutes left before the meeting adjourns, I think it would be appropriate to suspend our proceedings and resume them tomorrow, both in terms of amendments and the writing of the report.
[English]
The Chair: The idea to have consideration of the draft report is that since the it is essentially a consolidation of what we have done, it’s not essentially dealing with the amendments. It’s more a summary of what we have been doing in the last 13 or 15 meetings that we have had.
I totally agree with you, Senator Carignan. To start considering amendments the day that we are listening to a witness is not the way this committee should function. We prefer to have a period of reflection. I totally agree with that and support that.
However, the draft report is essentially a resumé of what we have been doing. It’s more a discussion about the choice of words than legal texts.
[Translation]
Senator Carignan: It might be appropriate for the clerk or the people from the Library of Parliament to provide us with a supplement that will take into account the minister’s testimony today. I think you will agree with me that this is very helpful testimony.
The Chair: Absolutely.
[English]
There’s no doubt about that. First of all, we would not have time, in my opinion, to go through the 15 pages of the draft report that has already been circulated. With the time left to us, we would only do a couple of pages, if I might say so.
On the other hand, I understand the preoccupation of keeping the goodwill of this committee to achieve a result. We’re very close to the end.
I know that amendments have been circulated by the President of the Treasury Board, and I understand that they are in your possession now. There might be questions about the text, as Senator Batters seems to have alluded to. We’ll have ample time tomorrow to look into those if honourable senators have already had the opportunity to consider them. I understand that amendments are also coming from the opposition side and even among the independent side. I know we’ll have a number of amendments to consider. There is no doubt about that.
Senator Ringuette: One of the things I wanted to say is that, in good faith, the Treasury Board has forwarded to you, chair, and for all the members of the committee, the proposed amendments from government. Since that’s already in your possession and you can read and reflect on their effect on Bill C-58, I would have liked to have the same politesse to have other proposed amendments that would be discussed tomorrow, but that’s your decision to make.
Essentially, chair, I would like to know if the intent tomorrow is to deal with all the amendments. Or is the intent of the group to meet for one hour and 45 minutes or two hours? I don’t know.
The Chair: We have an allocated time period for the meeting of this committee, which is tomorrow from 10:30 to 12:30, our usual time slot. If we are close to finishing and it is the will of the members to continue to work to wind up, we thought at steering — and when I say that, it’s not my decision but a consensus decision we took at steering. Since the minister was to be here for an hour — and it went more than an hour, and I think it was helpful to have the minister for all the senators around the table — steering was of the opinion that the best way to use the time left was to start looking into the draft report. As I said, the draft report is not amendments; it is essentially a resumé of what the committee has been hearing.
It is helpful to have that draft report. When we considered Bill C-74 and Bill C-86, the draft reports were very essential. A draft report is a very important element of our deliberations.
Of course, if honourable senators think that their minds are more scattered this afternoon and not up to concentrating on revising the text, I’m in the hands of the committee.
But to answer your question directly, it was, as Senator Boisvenu will confirm, the intention to complete clause-by-clause consideration of the bill tomorrow so that the chair is in a position to report to the house, since we have completed our list of witnesses; the minister’s appearance closed the list of witnesses.
We already have a draft report, which has been widely circulated and is almost in good shape and form. We had the contributions of Senators Boisvenu, Dupuis, Pratte and myself to make sure the text reflects the consensus. Of course, tomorrow, a large part of our time will be devoted to the amendments. I understand that the government’s amendments are in sync with a letter I have received, and circulated to the committee, from the Treasury Board chair, who happens to be Minister Philpott.
I need a motion of this committee to print that letter in our minutes because I think there are very important commitments in it for the follow-up within a year’s time, where consideration of the act would be open for review.
I understand that the amendments of the government are in sync with the testimony of Minister Brison, where he outlined precisely the amendments that the government was considering. I think you have a copy of those amendments in hand. They were circulated yesterday; I have the confirmation from the clerk. That’s where we stand.
As I say, I’m in the hands of this committee to make sure that we wind up our consideration of Bill C-58, which I think has been exemplary in terms of hearing witnesses and expertise and raising issues. There are issues, of course, in that letter that will need to be addressed in the future.
We have a proposal of Senator Boisvenu to adjourn. I’ve heard some comments around the table. Are there any other comments, honourable senators?
We’ll deal first with the proposal of Senator Boisvenu, and then I will seek a motion from honourable senators to move that the letter addressed to the chair of the committee and its appendix be added to the minutes of this day’s sitting.
Yes, Senator McCoy? Is it on the motion of printing the letter I received as chair in relation to explanation of the bill?
Senator McCoy: It’s on a related matter.
The Chair: Let’s deal first with that one so we proceed in order.
Are any senators opposed that we print in the minutes of today’s sitting the letter and the appendix from the Treasury Board chairperson in relation to this bill?
Seeing no objection, it is agreed. The letter will be appended in this day’s minutes of our sitting.
Could we come back, then, to the motion of the Senator Boisvenu?
Yes, Senator Lankin.
Senator Lankin: Before we actually adjourn, it’s fairly moot, but I’m supporting that. I wanted to raise a procedural question. May I?
The Chair: Yes.
Senator Lankin: I, unfortunately, will not be here tomorrow, but Senator McCoy is kindly subbing for me and with all the appropriate paperwork. May I share with her my copy of the draft report?
The Chair: Yes, of course.
Senator Lankin: Okay. I just wanted to be sure.
The Chair: As I say, the draft report normally remains a document that is dealt with in camera, unless we have a motion to sit in public to study the draft report. But I see that there is concurrence around the table. Of course, Senator McCoy, being an experienced senator, knows that she has to keep it confidential because the documents remain confidential at this stage.
Senator McCoy: Thank you for your courtesy on that.
On a related matter, I spoke with Senator Dupuis today. She has written out observations in English and French. Have you got a copy of these?
The Chair: I might have received them at my office, but I was not informed.
Senator McCoy: She has identified seven commitments that were made in the letter to which you just referred that she thought ought to be captured, in the words of the minister, in the observations.
The Chair: I will make sure that the document is circulated among the members so when we get to that stage of our work on observations, we will have the document on hand.
Senator McCoy: I think she might have forwarded copies to the clerk.
The Chair: She might have sent it to the clerk.
Senator McCoy: I’m sure the clerk will help all of us. I undertook to bring this to put it on the record, so I have fulfilled my undertaking.
The Chair: It’s noted and will be circulated.
Senator McCoy: Thank you.
The Chair: We’re back to Senator Boisvenu’s motion. Any other comments?
Do I need to call a vote? Is there consensus?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators.
The meeting is adjourned to the call of the chair tomorrow morning at 10:30 to proceed with clause-by-clause consideration of the bill and study on the report and observations.
(The committee adjourned.)