Hon. Peter Harder moved second reading of Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada.

He said: I wish to acknowledge, as I rise today, that I rise on the traditional and unsurrendered territory of the Algonquin Anishinaabe people.

Honourable senators, I’m pleased to share my support for Bill C-18, the online news act. Before we get into the details of the bill, I hope we can agree that action is needed to address the challenges faced by the Canadian news sector at this time.

A healthy democracy depends on well-informed citizens, and well-informed citizens depend on a free and independent press. Yet, with each passing year, we witness news outlets struggling to deliver on their mandates of providing Canadians with fair and unbiased information. As we all know, colleagues, a free and independent press is one of the foundations of a safe, prosperous and democratic society. Ensuring the viability of news outlets is thus necessary and timely.

We can also agree that our news consumption habits have changed forever. Long gone are the days of the broadsheet setting the agenda for public debate. Today, whether through our personal searches on the web or social media, the news reaches us via a number of digital platforms. Put simply, the business model of these digital platforms is to capture billions of dollars in advertising in exchange for our eyeballs.

But while the news business is doing the heavy lifting in covering news and the events of the day and reporting on issues that matter to our communities — be it local, national or international — little of the value of that work goes back to them.

If we agree that news has a crucial value in producing an informed electorate, then we must address the present imbalance that threatens our democracy. This legislation follows on the heels of a similar effort in Australia, but other countries are implementing or planning comparable laws.

New Zealand, for example, announced in December 2022 that its own legislation would draw heavily on what they called Canada’s “objective, futureproof and transparent” approach.

The aim of Bill C-18 is to create a news ecosystem that promotes the creation of high-quality news content and reflects Canada’s diverse voices and stories. We know that this type of content is central to our social and democratic discourse and to the health of communities that make up this country. Without a healthy media — not just here in Ottawa, but in all communities, large and small — the public’s capacity to hold their leaders accountable will atrophy. Voters will become less informed — or misinformed — on what’s at stake in elections. Policy prescriptions aimed at creating a better society are barely illuminated, if they are discussed at all.

We have seen how the spread of misinformation and disinformation around the world can damage societies. A robust, questioning media is one of the most effective antidotes to these disorders.

We all understand that freedom of expression and freedom of the press require that news reporting be done with full editorial independence, free from undue governmental interference. It requires that Canadians be able to continue to express themselves online, including by sharing news content.

Further, we must also acknowledge that, ultimately, our freedom of expression as Canadians depends crucially on the quality of the news content and information that we create and consume.

(1550)

Bill C-18 focuses its support on the entities that create high‑quality news content, eligible news businesses, the outlets they operate and the journalists they engage.

To be sure, the services that aggregate the reporting of others for their users have a role to play in the Canadian information ecosystem. These online services represent great advancements in how we access news and, more widely, how we share information.

Ultimately, these services, which act as gatekeepers to online information, are only as good as the information they curate. The success of some platforms as gatekeepers of information has allowed them to leverage a position of dominance in online advertising. This dominance creates an imbalance that undermines news businesses’ revenue streams and continued creation of quality news.

That is why Bill C-18 aims to level the playing field between dominant online platforms and the news businesses. Bill C-18 will support news businesses and their outlets when they primarily produce the kind of rigorous journalism and reporting that Canadians expect of professional news.

The government estimates that, annually, approximately C$215 million in compensation could go from digital platforms to eligible news businesses in Canada.

The online news act provides a legislative and regulatory framework that is flexible, modern and encourages market fairness. It will set the table for platforms to sit down with media outlets of all sizes, equipped with the ability to bargain collectively, bringing players to the bargaining process on a more equal footing. This is the path forward for a better balance of bargaining power in the Canadian digital news ecosystem.

The anticipated impact of Bill C-18 is significant regardless of whose financial estimates one uses. The Parliamentary Budget Officer, for example, estimated the bill could result in $329 million in total compensation for news businesses. When you look at the definition used for broadcasters compared to the rest of the news industry, you will see it is far broader, so the breakdown on the broadcast side is likely higher. These potential discrepancies are worthy of committee discussions. It can’t be denied that these payments will provide a lifeline for our country’s struggling news businesses.

Key amendments introduced in the other place have improved the bill in several ways, such as changes to the criteria for news business eligibility, the rules exempting platforms from the regime and other elements that reflect calls from stakeholders to improve Bill C-18’s ability to support a wider range of news businesses, including smaller news outlets and diverse perspectives.

Who will benefit from this bill? First off, news businesses must apply to be eligible for participation in bargaining. The Canadian Radio-television and Telecommunications Commission — the CRTC — will designate news businesses as eligible if they meet a set of criteria intended to support rigorous, quality journalism that informs Canadians on important issues. There are four ways for news businesses to be eligible: as a qualified Canadian journalism organization under the Income Tax Act; as licensed campus, community or Indigenous broadcasters; as a Canadian organization covering news of general interest; or as an Indigenous news outlet. These carefully considered criteria are designed to ensure that only rigorous journalism benefits from this new regime.

You will recall that the first path to eligibility, which is the qualified Canadian journalism organization designation — also known by the acronym QCJO — was developed in support of the Canadian journalism labour tax credit introduced in the 2018 Fall Economic Statement. It specifies that to qualify, news businesses must produce original reporting on issues and events that matter to Canadian readers, including news, features, investigations, profiles, interviews and analyses or commentaries.

These qualified news organizations are reviewed by a diverse and independent advisory panel of active or retired faculty of post-secondary journalism schools across the country. By leveraging the QCJO standard, we can keep the eligibility criteria for new businesses in harmony with existing legislation with proven experience and keep the amount of red tape, government intervention and duplication to a minimum.

These QCJOs must also adhere to key journalistic principles, including a commitment to research and verifying information before publication and presenting diverse perspectives and analyses. An eligible news outlet will also have a policy for correcting errors and honestly representing sources.

The other place added a second route to being classified as an eligible news organization or business. Parties agreed that campus, community and Indigenous broadcasters licensed under the Broadcasting Act do provide a great amount of local news and information across the country even though they may not meet the QCJO definition. These broadcasters were added in recognition of their unique role and contribution to the Canadian news landscape.

News businesses that are not designated as QCJOs can also apply to be eligible if they report on current events of general interest, including coverage of democratic institutions and processes, and demonstrate rigour through editorial oversight and adherence to recognized professional journalistic standards.

This route requires that an organization regularly employs two or more journalists. This two-journalist threshold promotes consistency by reflecting the existing rules for qualification in the criteria for a QCJO. It also favours a higher standard of reporting by ensuring that the news content in question benefits from the editorial perspective and independent insights of another professional journalist. The two-journalist requirement is a crucial factor for ensuring that Canadians have access to independent and rigorous journalism.

One other important amendment that was added in the other place now specifies that this rule does not require journalists to operate at arm’s length from the business. In other words, this allows for a framework that is more inclusive of start-ups and small news outlets, including those serving a diverse readership and more rural communities whose owners or operators may also be practising journalists themselves. Outlets in small Prairie communities, Canada’s North and other isolated towns and villages, as well as ethnic media, will benefit from this bill. In many cases, these communities have but one local outlet upon which they can count.

A fourth and final path to eligibility was added by the other place. The last route by which a news business can be considered eligible is an Indigenous outlet. Indigenous organizations operating in Canada are eligible if they cover matters of general interest and the rights of Indigenous peoples, such as treaty rights and the right of self-government. Bill C-18 is platform-agnostic and will provide support to all types of news organizations. Print, digital and broadcast are all eligible under Bill C-18 if they meet the criteria.

Promoting the sustainability of Indigenous media in our country not only benefits the diversity of our media landscape in supporting news media content that adequately reflects our nation’s Indigenous cultural diversity; this aspect of Bill C-18 also reflects our and the government’s commitment to advancing reconciliation with Indigenous peoples.

There have been some questions as to why our national broadcaster should be eligible under Bill C-18 since the CBC/Radio-Canada already receives public funding.

(1600)

In many parts of our country, CBC/Radio-Canada is the only source of reliable, fact-based journalism. Canadians rely on the information of our public broadcaster. It is only to the advantage of the tech giants that our public broadcaster is excluded from bargaining over the value of their online content. Furthermore, why should Canadian taxpayers contribute to the bottom lines of these platforms by letting the content they helped pay for be used for free? Taken together, these eligibility criteria for news businesses offer clear guidance for outlets wanting to benefit from the regime. In being inclusive of a diversity of businesses, including small and independent businesses, the criteria support the bill’s purpose of contributing to the sustainability of the news marketplace.

As I have mentioned, Bill C-18 will encourage digital platforms — that have dominant market positions — to enter into voluntary commercial agreements that fairly compensate Canadian news businesses for the use and sharing of their news online. The CRTC will play an important role in ensuring the legislation results in fair agreements that contribute to the sustainability of the news sector. As an independent regulator, part of its job is to uphold freedom of expression and journalistic independence.

The CRTC is an expert in media regulation, as well as fair and transparent public processes, and offers final arbitration. The commission is well positioned to implement the regulatory tools included in this bill that prevent digital platforms from unduly favouring or disadvantaging certain news businesses, thus preserving the independence of the press.

The commission’s role will be to help pave the way to fairly negotiated agreements, including developing a code of conduct and monitoring the marketplace to ensure that the framework continues to meet its objectives. In the rare case that parties cannot agree, it will facilitate final offer arbitration — an option that Bill C-18 presents properly, in my view, as a last resort.

One of the CRTC’s roles will be to grant exemptions from parts of the act to platforms. To do so, platforms will need to demonstrate that they are contributing to a sustainable news sector by entering into fair commercial agreements with news businesses that reflect the diversity of the Canadian news marketplace.

Platforms — defined as “digital news intermediaries” in the bill — wishing to be granted an exemption have a clear road map. This means making deals with outlets based in small communities from coast to coast to coast. This means making agreements with news outlets producing coverage in both official languages, with Indigenous media and with outlets representing Black and racialized groups. This means there should be agreements with a balanced number of outlets from each region of the country. Agreements will have to guarantee that journalists and editors can still cover the issues and the stories that matter without interference, respecting the independence of the press and freedom of expression.

New criteria introduced in the other place ensure that platforms must also enter into agreements with smaller players, such as not‑for-profit outlets, news businesses serving diverse populations and Indigenous news outlets. This is another reason we can be optimistic that this bill, once implemented, will have a positive impact in our news ecosystem.

The rules for exemption from the regime provide platforms with clear and transparent criteria to guide them in taking a balanced and fair approach when making deals. The focus is on the scope of the agreements and the range of the marketplace they cover. The CRTC will grant an online platform exemption from the act, provided the agreement reflects this balanced and fair approach. These exemption criteria are objective and designed to advance the goals of the framework. To be clear, the CRTC will not pick winners and losers. The framework is fundamentally based on free negotiations between news publishers and platforms, setting a level playing field for those agreements. It provides safeguards to ensure that, ultimately, agreements further the public interest objectives of the legislation.

Transparency is built into the regulatory process at every step. This includes the decisions on both eligibility and exemption. The regulator will be able to assess whether any agreement between news businesses and platforms poses a risk to journalistic independence, safeguarding the freedom of the press.

The information from this process will also feed into another key innovation in Bill C-18: the annual report by an independent auditor on the impact of Bill C-18 on the digital news marketplace. Giving the CRTC the ability to assess agreements makes it easier to follow the outcomes and impact of the act. This is how we can assess how well it is meeting its goal of enhancing fairness in the digital news marketplace.

The CRTC’s public processes provide the opportunity for commentary and course correction down the line, if needed. Public processes make it possible to better gauge the impact of the legislation on the long-term viability of the Canadian news sector. It’s one of the reasons Canada’s innovative and flexible approach is seen by our like-minded countries as a model of objectivity and transparency.

[Translation]

Honourable senators, I would be remiss if I failed to recognize the essential role that the media play in protecting the vitality of our languages, culture and identity. It is also important to ensure that Canadians have access to in-depth fact-based information in the official language of their choice. That’s why Bill C-18 requires platforms to enter into a series of agreements with the media, including the local and regional press organizations of every province and territory and anglophone, francophone and official language minority communities.

I’m also pleased to see that organizations, such as Hebdos Québec, have expressed their strong support for this bill. I’d like to share with you an excerpt from a statement made by Hebdos Québec, which I believe reflects the sentiment of many media outlets across the country. It said, and I quote:

 . . . it is not about technology but a difference in negotiating power. Individually, newspapers have no choice but to turn to platforms unless they want to lose a large part of their readership and advertising revenue.

Google and Facebook are the only options for many editors, while the platforms can ignore the requests of any editor.

The government will be there for Canadians because they expect the government to act in a transparent manner to protect their local journalism; because the government must protect the future of a free and independent press; because we need to ensure that Canadians have access to fact-based information; and because we must work together to protect the strength of our democracy.

[English]

Now, I’d like to take this opportunity to address some of the concerns I’ve heard around this bill. Much of the commentary around Bill C-18 has involved unfortunate misrepresentations about “pay per click” and “ending free speech online in Canada.” Unfortunately, this commentary seeks to frame this legislation as yet another threat to the internet as we know it here in Canada.

(1610)

I’m sure that many of you are hearing some of these issues surrounding the bill. But, of course, it isn’t hard to connect the dots.

When commentators claim that Bill C-18 will “break the internet,” what they mean is that Bill C-18 will impact the profit margins of the dominant platforms. It will require that these platforms share advertising revenues fairly with the people who create and publish the news content that appears on the platforms’ services. Australia has similar legislation, and let me assure you that the internet is still working there. I’m sure it will also work in New Zealand as that country puts forward its own regime in the coming weeks.

When some say that Bill C-18 will result in links being blocked online, what they mean is that big platforms are not above playing hardball. We all watched as Meta, in response to new online news legislation in Australia, pulled links to news, as well as information on essential services, including weather reports. We now know from whistle-blowers that Meta calculated the withdrawal to maximize chaos and damage. But Canadians will not be intimidated. Dominant digital platforms should have to bargain fairly and in good faith, and that is what this bill provides.

To be clear, Bill C-18 would target the most dominant platforms, which act as key intermediaries in the ways that Canadians access news. They would have these platforms negotiate agreements to fairly share the benefits they derive from the full scope of ways they make news content available to users of their services.

Bill C-18 is not a pay-per-click scheme for news. Those commentators who suggest this idea are, to my understanding, misrepresenting the framework. They see it through a conventional approach to online licensing — essentially a copyright lens. But Bill C-18 sits alongside the Copyright Act. In the context of a digital platform exercising significant power imbalances, it imposes a bargaining framework to require fair and good-faith negotiations. Bill C-18 is not copyright legislation; actually, it’s more in the form of ensuring fair competition in this area.

Another myth: There are observers who say that Bill C-18 is a “link tax” or mandates “payments for links” and conclude that the bill will incentivize clickbait over high-quality journalism and, worse, that it will end free linking on the internet. But that is not what Bill C-18 does. Nowhere does the bill mandate any kind of tariff or payment for a link. What it does require is that when links to news are made available by platforms that have significant power over news businesses, those platforms have to come to the table and bargain; that is all.

This is a framework designed to empower news businesses in the digital economy. It is designed to help those businesses better leverage their news content and more fully realize the benefits of their efforts. It is designed to check the power of some of the world’s most dominant platforms so that fair negotiations can take place. It does not introduce a tax but, rather, it adjusts the marketplace to one that appropriately recognizes the value of news content and those who create and produce it.

Recognizing the appropriate value of news content to the most dominant platforms means counting all the ways this content features on their services.

One of the ways platforms benefit is by using this news content, and the ability to access and share it, to attract Canadians to their services. Links play a central role in this offering from platforms to Canadians.

We saw that links to news content have a value to platforms when Google continued to refuse to pay publishers in the European Union under a copyright approach that includes headlines and snippets but does not include hyperlinks. The results from the EU experiment have been found wanting, to say the least.

Lengthy court battles over unwieldy digital rights management systems have not delivered timely help to news businesses. That is precisely why Bill C-18 creates a marketplace that considers all the ways news content is made available.

Another important point I would like to make is the following: Freedom of speech is not threatened by this bill. Bill C-18 does not contain provisions that would allow anyone to block news links. Bill C-18 does not contain provisions empowering anyone to prohibit the quoting of news.

Instead, Bill C-18 imposes obligations on the most powerful entities in the online information ecosystem. It includes an obligation on platforms to not unfairly exploit the positions they hold as gateways to information online by redirecting crucial advertising revenue from the same news publishers whose work they feature on their services.

Online platforms have long touted their services as the “digital public square” — as online spaces where citizens can connect to share ideas and make decisions about their lives, their communities and their place in our broader society. These platforms have enriched themselves immensely, becoming some of the most valuable enterprises in the history of the world, by using network effects to essentially hold an audience captive.

However, the quality of the discourse in the public square can only be as good as the quality of the content through which people become informed and reach their understanding. Even as these platforms enrich themselves, new businesses — the ones that create the content on which Canadians rely for their information — are going out of business at an alarming rate. While it is true that the number of other independent outlets is growing — thanks to the increased development of products for the web — it is also true that Canada has lost over 460 outlets since 2008.

What is more, those losses have come in communities that are isolated and often served by only one outlet to begin with. Last month, Postmedia, which operates more than 100 large and small newspapers across the nation, announced cuts of 11% to a staff that is already overstretched.

More recently, British Columbia-based Overstory Media Group announced layoffs affecting publications like The Georgia Straight, Vancouver Tech Journal, The Coast, Burnaby Beacon, Fraser Valley Current, New West Anchor, Calgary Citizen, Tasting Victoria, Oak Bay Local, The Westshore, Victoria Tech Journal, Eat Tri-Cities, Calgary Tech Journal and Capital Daily.

It is hard for me to imagine that no one in this chamber has seen their home community untouched by layoffs or closures. As senators, our perspectives and ability to represent the concerns of our constituents are being weakened by this atrophy. If we don’t already, we will soon lack the information required to make the best decisions for the welfare of our fellow citizens.

Some have argued that only big media benefit from Bill C-18. The evidence from Australia is the exact opposite. The whole point of the legislation is to get as many outlets as possible to the negotiating table. There is strength in numbers. By coming together, the smaller outlets will be in a stronger negotiating position and they will finally get fair compensation for the content their journalists create. And it is that content that will drive advertising and subscriptions.

What Bill C-18 does is level the playing field so that news businesses may receive a fair share of the benefit when their works are made available on dominant digital platforms. It ensures that Canadian journalists can continue to create quality content to be discussed in the digital public square. By ensuring the continued creation of quality Canadian news content online, Bill C-18 fundamentally supports the sustainability of the news sector and, in so doing, the freedom of expression of all Canadians.

Finally, I cannot overstate the importance of this bill for the future and sustainability of local news. It is critical that we support Canadian news media by fostering the best conditions for them to continue to produce journalism of the highest industry standards that reach our citizens, no matter where they are.

(1620)

This issue is not to be taken lightly, given the number of Canadian jobs and businesses that are at stake, but it’s also because the heart of this issue lies in the vitality and sustainability of our very democracy. Citizens need to be able to make informed decisions about who they want to lead them, what benefits and policies they believe will benefit them and their communities and what services they can afford to pay for and those they can do without. This is particularly important in an age when citizens increasingly gravitate to what are simply the loudest voices.

Just as governments shouldn’t pick winners and losers, big tech monopolies should not have that right either, yet that is precisely what is happening leading up to the introduction of this bill. In an attempt to thwart it, the web giants have already negotiated content licensing agreements with some of the largest names in the Canadian news business: The Globe and Mail, the Toronto Star and Le Devoir, to name just three.

Bill C-18 allows many smaller outlets to come together as one to negotiate similar commercial agreements. Without legislation, those smaller outlets will wither on the vine and the lucky few larger players to whom the platforms have offered short-term deals can kiss them goodbye when their term is up.

Let me conclude by saying that while this bill is a priority for the government and has enjoyed multi-party support in the other place, this bill is urgent and essential for the news sector. Every month of delay risks further layoffs. It goes without saying that this bill requires appropriate and robust consideration in this place, but its passage ought to be expeditious, because most of the outlets it would serve are in a perilous state. I therefore urge this chamber to advance this bill as quickly as possible to committee so we can continue that review.

Thank you.

Hon. Julie Miville-Dechêne: Welcome to the Senate, Senator Gold. In Iran, the Islamic Revolutionary Guard Corps has for months been functioning as the strong arm of a regime that imprisons and executes its political opponents. For years, this group has been destabilizing the entire Middle East with its terrorist activities. The United States designated the Islamic Revolutionary Guard Corps as a terrorist group long ago, but Canada is waffling over what would be a strong signal to an Iranian regime that systematically violates its citizens’ rights. Why not take action on this very issue by designating the Islamic Revolutionary Guard Corps as a terrorist group?

Senator Omidvar: Thank you, Senator Gold. That’s very good to hear. As Canada is considering other measures, will it also turn its eyes not just on sanctioned entities and the owners of sanctioned entities but also on directors, who are apparently present in Canada without any retribution for their association with these sanctioned entities? Will the government also take a broader look at who is sanctioned?

Senator Gold: Thank you for the question. As I just tried to explain, this decision must be made based on the counsel and advice of our national security agencies. To date, that isn’t what our experts have recommended that we do. Thank you.

[English]

Senator Miville-Dechêne: Even though you’re still considering the matter, Canada claimed in the past that it was reluctant to impose this designation because it was worried about penalizing conscripts. However, according to security expert Michel Juneau-Katsuya, that argument doesn’t hold water because rank-and-file fighters are not the ones who would be affected. It would be the highest ranking officers who have assets and who could engage in interference in Canada or try to cross our borders. I would remind you that there are already 73 other groups on the list of terrorist organizations and that many of them are not very well known or not very active. Isn’t it time to add the Islamic Revolutionary Guard Corps to that blacklist?

Senator Gold: Thank you for the question. I don’t know the answer to the specifics. The data is important. Measuring performance and tracking progress are important. All of those things are necessary if we’re going to actually sustain progress over time. I’ll have to make inquiries and report back as soon as I can get an answer.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): I thank the honourable senator for her question. As I’ve said a number of times here, the government holds the Iranian regime accountable and, as I said, has imposed a broad range of very strong sanctions. Any decision to designate a particular group must take into account the advice of several national security entities. The government is considering the matter, but for the time being, it feels that the current sanctions against many individuals and a number of entities are appropriate. However, as I said to my colleague, Senator Omidvar, the matter is under review.

Senator Gold: Obviously, the situation at Roxham Road is having a financial impact, but there’s a much broader issue at play here. This also involves our international obligations to refugees and our commitment as a country with fundamental values, which means that those who come here are treated in an appropriate and humane manner. The Government of Canada is working with the Government of Quebec and also, as I said in response to your earlier question, the U.S. government in this regard to find a fair and equitable solution for everyone, including both Canadian taxpayers and those seeking asylum here in Canada.

[English]

Hon. Denise Batters: Senator Gold, the Auditor General noted in her recent COVID pandemic spending report that, “As of September 2022, the agency and the department had identified employees that claimed COVID-19 benefits.”

In that quote, “the agency” is the Canada Revenue Agency, and “the department” is Employment and Social Development Canada.

When MPs last week questioned officials from these two federal government entities that ran the CERB program about this, they were informed that 49 employees at the employment department were fired for claiming the benefit for themselves. The tax agency official would not state how many cases of employee CERB fraud had occurred at that government agency, saying only that it was “not many.”

Neither department referred these federal government employees found in such flagrant violations to law enforcement. Why not?

Senator Gold: Thank you for noting my position. Regarding the budget to which you refer, I wish it were as vast as you imply.

But seriously, Senator Batters, I was not briefed in particular on this issue. I will take those questions and make inquiries, and in due course, I will have an answer for you.

The Hon. the Speaker pro tempore: Senator Harder’s time has expired. Honourable senators, do we agree to give five more minutes?

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Brian Warr, Deputy Speaker of the Newfoundland and Labrador House of Assembly.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Moncion, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

Hon. Marc Gold (Government Representative in the Senate) tabled the reply to Question No. 151, dated April 26, 2022, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding Employment Insurance.

Senator Gold: I want to thank the honourable senator for his question. The Government of Canada takes the needs and feelings of victims very seriously. Everyone needs to live in safety, but I want to reiterate that a judge’s decision in applying the law must be understood and respected as an important part of our justice system. The Government of Canada has confidence in our justice system, including the appeal processes that are carefully regulated in our legislative system.

[English]

Hon. Marc Gold (Government Representative in the Senate) tabled the reply to Question No. 150, dated April 26, 2022, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding the proposed Canada Disability Benefit.

Hon. Denise Batters: Would Senator Dalphond take a couple of questions, please?

[Translation]

Senator Dalphond: It would be my pleasure, Senator Batters.

Hon. Pierre J. Dalphond moved second reading of Bill C-9, An Act to amend the Judges Act.

He said: Honourable senators, it is my pleasure to rise to commence second reading debate on Bill C-9, An Act to amend the Judges Act, as sponsor of this legislation.

This 25-page bill proposes to modernize the complaint process in relation to the conduct of about 1,200 federally appointed judges sitting on the Supreme Court of Canada, the provincial courts of appeal, the Federal Court of Appeal, the provincial and territorial superior courts, the Federal Court and the Tax Court.

For those of you who were in this chamber on June 15, 2021, you may recollect that I delivered a speech on that very topic while initiating second reading of Bill S-5. We then adjourned for the summer, and an election was called. I don’t think that was in reaction to my speech.

For those who were in this chamber on December 7, 2021, you may recall that I tried again, while initiating second reading of Bill S-3. Further to a ruling by the Speaker of the other place that it was a money bill, Bill S-3 did not proceed further in the Senate and was reintroduced in the Commons as Bill C-9.

Both Bill S-3 and Bill C-9 are identical, subject to one amendment adopted in committee at the other place. Today, it is my third attempt to have the Senate adopt the bill to reform the Judges Act in connection with the complaint process. So, as they say in the language of Shakespeare, hopefully, the third time is the charm.

Colleagues, as you know, judges hold special positions of responsibility in our democratic society and system of laws. They’re expected to conduct themselves in a manner consistent with their independence, impartiality and ability to fulfill their functions. This includes outside the courthouse.

To guide them, the Canadian Judicial Council published a written document called Ethical Principles for Judges. In 2021, this document was updated and modernized after years of consultation with chief justices, puisne judges, the public and key justice system stakeholders from across Canada. Incidentally, our colleague Senator Cotter was involved in the redrafting of these principles.

The 2021 document provides judges with guidance in the courtroom and outside the courthouse and gives the public a better understanding of the role of the judiciary.

Bill C-9 is about an issue related to judicial conduct, namely, the processing of complaints against judges. The bill proposes a process that is fair to the judge, transparent to the claimant and the public, effective in achieving resolution, cost-effective, respectful of judicial independence and worthy of Canadians’ confidence and trust.

My speech will start with a brief historical context regarding the judicial function, then will describe the current complaint system and its shortcomings, ending with a review of the main provisions of Bill C-9.

(1510)

[Translation]

You will recall the historical context. Over the centuries, it quickly became apparent that it was better to have disputes settled by third parties considered wise enough or knowledgeable enough rather than at the pleasure of a king, or by resorting to violence.

In the Magna Carta, snatched from King John by the English barons on June 12, 1215, we find the idea of the rule of law, habeas corpus, which seeks to protect free men from arbitrary arrest, and the right to be judged by one’s peers. Several great British authors see it as the primary source of judicial independence from royal authority and from Parliament, which over time became one of the fundamental principles of democracy in the United Kingdom.

I’ll skip a few centuries to get to the middle of the 1860s. Mindful of the importance of the independence of the judiciary, drafters of the Constitution of 1867 made sure that, once judges are appointed, they couldn’t easily be removed, hence section 99 of the Constitution Act, which states:

 . . . the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

In other words, the executive can’t act alone and each chamber has veto power.

[English]

In 1971, Parliament amended the Judges Act to create the Canadian Judicial Council — a body chaired by the Chief Justice of Canada, and comprised of every chief justice and deputy chief justice of the courts of appeal, superior courts and the federal courts.

The council’s dual mandate is fostering the continuous education of judges and overseeing the conduct of judges. As a critical part of this mandate, the council received sole authority to investigate allegations of misconduct against federally appointed judges. Furthermore, a process to dismiss a judge could no longer commence before Parliament until the Minister of Justice had received a report recommending that the judge be removed from office.

Over the last 50 years, the number and the nature of complaints made to the council has evolved considerably. In the early years, the council received, on average, 10 complaints per year. However, in the last 15 years, it has been about 600 per year.

In its last annual report, the council noted that from April 1 to March 31, 2021, there were 551 complaint-related matters reviewed. Many were not prima facie valid complaints — for example, complaints filed against a judge appointed by a province, or related to the fact that the party was unhappy with the judgment. Of the complaints, 203 were closed, 285 were closed under the authority of the executive director, 18 were reviewed by a member of the Judicial Conduct Committee, 3 others went before a review panel and 1 matter was before an inquiry committee.

[Translation]

By imposing a process whereby judges investigate allegations of misconduct against their colleagues, the Judges Act protects judges from acts of intimidation or retaliation by the executive power or a party dissatisfied with a ruling or the popular pressure of the day.

In addition, since the act provides that we, parliamentarians, can’t remove a judge after having received the report and recommendation of the judges responsible for the investigation, Canadians can rest assured that this draconian measure will only be taken when it is truly justified. The Supreme Court has established in previous rulings that the investigative process must ensure procedural fairness for judges subject to an investigation and preserve judicial independence at all times.

During the 2010s, the Judicial Council adopted various amendments to its internal rules to make its complaints process more efficient. However, these efforts couldn’t eliminate the obstacles created by the requirements of the act itself.

In the opinion of several organizations, including the Judicial Council, the Canadian Superior Courts Judges Association and the Canadian Bar Association, the structures and procedures set out in the Judges Act must be modernized. After all, they were created in 1971, when the council received about a dozen complaints per year. It is high time to adapt to the new situation.

Worse still, we’ve seen that these procedures can be abused by some of the judges under investigation, which undermines the public confidence that the system that was put in place in 1971 was supposed to inspire.

[English]

In regard to the shortcomings of the current model, several issues have emerged as causes for concern: Two of these are the length and cost of judicial conduct proceedings.

Inquiry committees constituted by the council from time to time are considered to be federal administrative tribunals. As such, their decisions, whether interlocutory or final, are reviewable by the Federal Court, as well as by the Federal Court of Appeal, and, with leave, by the Supreme Court of Canada.

This gives a judge, subject to the process, an opportunity to initiate as many as three stages of judicial review, in connection with many decisions from an inquiry committee, including interlocutory decisions.

This has proven to be a recipe for adversarial zeal and abuse of process with individuals launching judicial review proceedings, seemingly to effect delay rather than pursue valid legal interest. Judicial conduct inquiries can be delayed for years as a result.

In a recent case, a complaint process initiated in 2012 resulted in a recommendation from the council — that a judge be removed from office — that became final only nine years later.

Commenting on this case after the Federal Court of Appeal’s decision was rendered in the summer of 2020, in a press release, the council said:

Specifically, over the past decade, we have all witnessed public inquiries that have taken far too long and have been far too expensive. We have witnessed countless applications for judicial review, covering every imaginable aspect of the process. These have been enormously time-consuming, expensive and taxing on our federal courts. Furthermore, all costs, including those incurred by the judge who is at the centre of the inquiry, are fully funded by the taxpayer. The judge at issue continues to receive full salary and pension benefits as time passes. This leaves the perception that the judge benefits from these delays. Highlighting this problem, we refer to a painfully obvious pattern, as opposed to any individual case: a pattern that is contrary to the public interest and access to justice.

At the close of this process concerning that particular judge, on February 25, 2021, the Chief Justice of Canada, the Right Honourable Richard Wagner, said:

As Chairperson of the Canadian Judicial Council, I reiterate the need to adopt legislative reforms that Council has long called for in order to improve the judicial conduct review process, and thereby maintain public confidence in the administration of justice. On behalf of the judiciary and the public it serves, I therefore welcome the commitment of the Minister of Justice and the Prime Minister to proceed with those reforms as soon as possible in order to avoid any such saga in the future. As the Minister of Justice said today, “Canadians deserve better”.

(1520)

This was in February 2021. I stand before you in February 2023, trying for the third time to achieve that call to action. I hope this time is the right one and that you will support me so that we can complete the business of the bill that was unanimously adopted in the other chamber.

During that entire nine-year period, until the judge resigned before a motion to dismiss him was contemplateded, the judge continued to receive his full salary and accumulated enough years of service — “service” — to become entitled to pension benefits. In addition, because a judge must serve a minimum of 10 years to be entitled to any pension benefits, he spent 9 years in proceedings. In addition, the legal fees and costs accrued by the council and the judge were assumed by taxpayers, even in relation to an appeal ruled abusive by the Federal Court of Appeal. As a matter of fact, millions of dollars were charged to the public purse.

The 2021 Budget Implementation Act put an end to the accrual of pension benefits by amending the Judges Act to freeze a judge’s pension entitlements as soon as the council decides that the judge’s removal from office is justified. I’m sure you noticed that when we adopted the bill implementing that budget, it was that thick. But it was there; I saw it.

Unless the decision is overturned on appeal or rejected by the Minister of Justice or by either chamber, a judge now is not entitled to the pension benefits accumulated after a decision of the council that their removal is justified. There is no longer a personal financial benefit for years-long judicial proceedings to contest the council’s decision to propose their removal.

Another shortcoming of the current process is that the Judges Act only empowers the council to recommend for or against the removal of a judge. The council cannot impose lesser sanctions for misconduct that falls below the necessarily high bar governing judicial removal. As a result, instances of misconduct may fail to be sanctioned because they clearly do not approach this high bar but instead will deserve a lesser sanction such as an obligation to do training on a specific issue.

There is also a risk that judges may be exposed to full-scale inquiry proceedings, and to the stigma of having their removal publicly considered, for conduct that would be more sensibly addressed through alternative procedures and lesser sanctions.

Amendments to correct these defects would not only render conduct proceedings more flexible and proportionate to the allegations that prompt them; they will provide greater opportunities for early resolution and reserve the costliest and most complex hearings for the most severe cases.

[Translation]

Finally, the Judges Act requires that a recommendation for the removal of a judge be made to the Minister of Justice by the council itself rather than the inquiry committee established to review the conduct of a particular judge. Thus, once the inquiry committee has reached its conclusions, sometimes after a few years, the council must deliberate, with at least 17 members present, and prepare a report and a recommendation to the minister. The members must review the entire file before the inquiry committee, hear the judge’s submissions if he or she wishes to make them, and then decide whether to confirm the recommendation of the inquiry committee.

This approach goes beyond what procedural fairness requires and places a significant burden in terms of time and energy on at least 17 chief justices and associate chief justices.

As the council itself recognizes, this approach is inefficient and contrary to the public interest in terms of the optimal use of judicial resources. This too must change.

I also want to mention the public consultation on the disciplinary process reform conducted by the government in 2016, which revealed strong support for developing a more transparent disciplinary process that is easier for the public to access, especially because of the increased opportunities for members of the public with no legal training to take part in the process.

The government then benefited from discussions with representatives of the council and the Canadian Superior Courts Judges Association, an association that represents almost all 1,200 superior court judges, about their concerns and respective visions for the disciplinary process reform. You can be certain that as a former president of this association and before agreeing to sponsor the bill, I ensured that my former colleagues agreed with its content. I’ll come back to the importance of these consultations at the end of my speech.

For the time being, I must point out that almost all judicial stakeholders support the proposed changes, which will improve the effectiveness, flexibility and transparency of the disciplinary process for judges, while respecting the principles of fairness and judicial independence and reducing the potential for abuse and associated costs. Those are the objectives of the bill.

I will now describe some of the key aspects of the proposed new process.

[English]

The legislation before you will introduce a more versatile process. After initial screening by a council official, any complaint that cannot be dismissed as completely without merit will be referred to a review panel composed of a representative of the public and a representative of the judiciary. After reviewing the matter on the basis of written submissions only, the review panel will be empowered to impose remedies short of removal from office — for example, a requirement that the judge take a course of professional development or issue a public apology. This will enable the effective, fair and early resolution of cases of misconduct that do not require a full-scale public hearing.

Should the review panel decide that an allegation against a judge may indeed warrant removal from office, the proposed legislation requires that the matter be referred to a full public hearing. These hearings will function differently from the current inquiry committees. First, the hearing panel itself will include a lay member of the public and a representative of the legal profession in addition to judicial members. These judicial members will include both chief justices and lay puisne judges. A lawyer will be appointed to present the case against the judge, much as a public prosecutor would do. The judge will continue to have the opportunity to introduce evidence and examine witnesses, all with the aid of his or her own counsel.

In sum, the process will be structured as an adjudicative and adversarial hearing, a format that benefits the gravity of the issues involved, both for the judge and for public confidence in the integrity of justice.

At the conclusion of these public hearings, a hearing panel will determine whether or not a judge should be removed from office. It will then report its recommendation to the Minister of Justice without intermediate review by the council as a whole. This will bring a timely resolution to many of the most severe allegations of misconduct against judges, allowing the minister, and ultimately Parliament, to act swiftly in response to a hearing panel’s recommendation. Canadians can rest assured that this measure, which is intended to be exceptional, would only be taken when it is truly justified.

(1530)

Since 1867, five judges have come very close to having a motion in the House of Commons and the Senate stripping them of their duties. Therefore, it is not an often-used process.

The rigour of the hearing process will give the minister, parliamentarians and the public at large confidence in the integrity of any findings and recommendations. The hearing panel’s report will be made public, ensuring transparency and accountability.

At the conclusion of the hearing process and before the report on removal is issued to the minister, both the judge whose conduct is being examined and the lawyer responsible for presenting the case against the judge will be entitled to appeal the outcome to an appeal panel. This appeal mechanism will replace the current recourse to judicial review through the federal courts. In other words, rather than making the Canadian Judicial Council hearings subject to external review by multiple levels of court with the resulting costs and delays, the new process will include a fair, efficient and coherent appeal mechanism internal to the process itself.

This appeal panel will be made up of five judges, some chief justices and some puisne judges, will hold public hearings akin to those of a Court of Appeal and will have all the powers it needs to effectively address any shortcomings in the hearing panel’s process. Once the appellate panel has reached its decision, the only remaining recourse available to the judge and to the presenting counsel will be to seek leave to appeal to the Supreme Court of Canada. Entrusting the process oversight to the Supreme Court of Canada will reinforce public confidence and avoid lengthy judicial review proceedings through several levels of court.

These steps on appeal will be governed by strict deadlines, and any outcomes reached will form part of the report and recommendations ultimately made to the Minister of Justice.

In addition to enhancing confidence in the integrity of judicial conduct proceedings, these reforms are expected to reduce the length of proceedings by a matter of years.

[Translation]

To maintain public confidence, the disciplinary process for judges must produce results not only in a timely fashion, but at a reasonable cost. The costs should be as transparent as possible and subject to sound financial controls. The bill therefore includes robust provisions to ensure that the costs related to the process are managed prudently.

Currently, the number of disciplinary investigations applicable to judges varies from year to year, which makes it impossible to set a specific budget for costs in any given year. Managers must use cumbersome mechanisms to get the necessary ad hoc funding, which is administered by the Commissioner for Federal Judicial Affairs.

[English]

To remedy this problem, the proposed legislation would effectively divide process costs into two streams. Funding for constant and predictable costs — those associated with the day‑to-day review and investigation of complaints — will continue to be sought through the regular budget cycle and will be part of the budget devoted to the council. The Justice Department estimated that the costs will range between $300,000 and $500,000 per year.

The second stream, however, consisting of highly variable and unpredictable costs associated with cases that proceed to public hearings will be funded through a targeted statutory appropriation established in this bill. In other words, costs associated with public hearings will be paid directly from the Consolidated Revenue Fund.

These are the provisions that make the bill I introduced for the second time a money bill, and, therefore, it was ruled by the Speaker of the House of Commons that it must be introduced first in the House of Commons.

Of course, this is not an open allocation of money from the Consolidated Revenue Fund, but it should be recalled that these hearings are a constitutional requirement. A judge cannot be removed from office absent a judge-led hearing into their conduct. It is thus appropriate that a non-discretionary expense incurred in the public interest and in fulfillment of a constitutional obligation be supported by stable and effective access to the Consolidated Revenue Fund.

Parliament must nonetheless be assured that the scope of this statutory appropriation is clearly defined. It is essential to clearly spell out the type of process expenses as well as guidelines for their quantum. There must be accountability and transparency to reassure Parliament and Canadians that public funds are being prudently managed.

As a result, the provisions establishing the appropriation clearly limit the categories of expenses captured to those required to hold public hearings. Moreover, these expenses would be subject to regulations made by the Governor-in-Council. Planned regulations include limits on how much lawyers involved in the process can charge and a limit on judges who are subject to proceedings to one principal lawyer — not an army of lawyers.

The bill also requires the Commissioner for Federal Judicial Affairs to make guidelines fixing or providing for the determination of any fees, allowances and expenses that may be reimbursed and that are not specifically addressed by the regulations. These guidelines will have to be consistent with any Treasury Board directives pertaining to similar costs, and any difference must be publicly justified.

I note that the Commissioner for Federal Judicial Affairs, who will be responsible for administering these costs, is a deputy head and accounting officer and is therefore accountable before parliamentary committees.

Finally, the bill requires that a mandatory independent review be completed every five years into all costs paid through the statutory appropriation. The independent reviewer will report to the Minister of Justice, the commissioner and the chair of the council. Their report will assess the efficacy of all applicable policies establishing financial controls and will be made public.

Taken together, these measures will bring a new level of fiscal accountability to judicial conduct costs while replacing the cumbersome and ad hoc funding approach currently in place. This is a necessary complement to procedural reforms. Both procedural efficiency and accountability for the expenditure of public funds are necessary to ensure public confidence.

Finally, I will speak about consultation.

[Translation]

During the reform drafting process, the government paid close attention to public feedback that was collected through an online survey and to feedback from key representatives of the legal community, such as the Canadian Bar Association, the Federation of Law Societies of Canada, and the provinces and territories.

As I’ve already mentioned, the council and the Canadian Superior Courts Judges Association were consulted. The participation of their representatives was both necessary and appropriate, because the Constitution dictates that this process must be managed and administered by judges. By consulting the council, the government was able to get feedback from the people directly responsible for administering the judicial discipline process.

Furthermore, by consulting the Canadian Superior Courts Judges Association, the government was able to hear the representations of the judges subject to this process directly.

(1540)

In the same press release mentioned earlier, the Right Honourable Richard Wagner, Chief Justice of Canada, stated, and I quote:

Over the past few years, the Council has consistently called for new legislation to be tabled in order to improve the process by which concerns about judicial conduct are reviewed. The efforts of members of Council to develop proposals in this regard have been fruitful, and we appreciate the openness with which the Minister of Justice has engaged the Council in his consultations. . . . While the Council will take some time to carefully review the proposed amendments, we are confident that these reforms will bring about much needed efficiency and transparency to the judicial conduct review process.

Given that our goal is to design a process that enables judges themselves to fulfill an important and public mission, I hope that our deliberations will be guided by respect for their experience and wisdom.

I also note that on June 9, 2021, the Canadian Judicial Council, as I mentioned earlier, issued new ethical principles for judges, all of which constitute enormous modernization efforts.

[English]

In conclusion, more than 50 years ago, our predecessors had the foresight to draft a judicial conduct process that removed any prospect of political interference by giving the judiciary control over the investigation of its members.

Today, respect for this form of judicial leadership is firmly entrenched. It is a gesture of respect for judicial independence under the Constitution itself and a source of public confidence in the institutions of justice that exist to serve Canadians.

It falls to us today to renew this commitment by modernizing the judicial conduct process, providing its judicial custodians with a legislative framework that contains all the tools needed to protect the public trust. These include tools to enhance efficiency, bring transparency, ensure accountability, provide versatility and maintain the highest standards of procedural fairness. I wholeheartedly recommend the bill before you in this spirit, and I look forward to its passage. Thank you, meegwetch.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, pursuant to the order adopted on December 7, 2021, I would like to inform the Senate that Question Period with the Honourable Seamus O’Regan, P.C., M.P., Minister of Labour, will take place on February 9, 2023, at 2:20 p.m.

[English]

Hon. Senators: Hear, hear!