The Hon. the Speaker: Honourable senators, Senator Ringuette’s time has expired. She is asking for five more minutes. If you are opposed to leave, please say “no.”

Senator Cotter: I wasn’t intending to enter the debate, but particularly Senator Jaffer and Senator Ataullahjan’s observations about the risks of stereotyping and particularly vulnerable, marginalized or racialized communities invite me to pose this question of you. This is the only part of the bill that has given me concern.

You have spoken to the three words that we have been debating and that have been amended out of the bill. The word I’m most interested in your viewpoints on is the word “general.” I accept your observations about “reasonable” requiring an objective articulation, but the fact of the matter is that people who do get stopped at the border are stopped as individuals. For the life of me, I don’t understand why the choice of a word like “general” as opposed to “specific,” even with the word “concern” was adopted. It seems to me the word “general” invites a border guard to use criteria that are not specific to the individual. As a result, it invites the very kind of concerns that our last two questioners posed. Could you speak to that?

Senator Gold: Of course, I’ll certainly make the request. I’m sure the committee will make its request, and they will produce all the evidence, figures and research that they have.

The art of legislating is the art of dealing with the facts that one has and making a decision in public policy that is deemed to be in the best interests of moving the justice system — in this case the criminal justice system — forward in a more just, equitable and humane way.

Again, I have confidence in the process that we have embarked upon. I have confidence that the committee will have access to all the information upon which the government made its decision. I am hopeful that in the process of examining the legislation in second-reading debate, in committee and again in third-reading debate, when we’re back in the fall, that honourable senators will see the merits of this bill as being a major step forward, not perhaps the last step forward or the only step forward, but a major step forward in addressing an unjust situation in our criminal justice system.

[Translation]

Hon. Michael L. MacDonald: Honourable senators, my question is for the Leader of the Government in the Senate and concerns our access to information system. According to an answer to a written question from Conservative member of Parliament Kelly McCauley tabled in the House of Commons, the Trudeau government paid private consultants over $39 million to process access to information requests. This $39 million has been spent just since January 1, 2020.

Senator Gold, the annual report of the Information Commissioner says that in 2021-22, access to information staff in 28 federal institutions had no access or limited on-site access for processing physical files. Given this, how can the government justify paying tens of millions of taxpayer dollars to consultants to censor government documents?

Senator Gold: Thank you for your question. I can’t answer the specifics of your question. I would imagine and hope that questions of this nature would have been posed to officials when they appeared at the various committees looking at Bill C-19, and more than that, I will certainly make inquiries, Senator Duncan, in the event that the bill receives third reading vote this week as planned.

Hon. Frances Lankin: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the impact of subsection 268(3) of the Criminal Code, enacted in 1997, including but not limited to:

(a)the reasons why there have been no prosecutions under this provision since its enactment 25 years ago; and

(b)the extent to which female genital mutilation is currently occurring in Canada and to Canadian girls taken abroad for such procedures;

That the committee make recommendations, as appropriate, to ensure the Criminal Code provision has its intended impact of ending such crimes being perpetrated against girls in Canada; and

That the committee submit its final report no later than December 31, 2023, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

Senator McCallum: How will intellectual property that is in the laptop be handled?

Hon. Senators: Agreed.

(Motion agreed to.)

On the Order:

Resuming debate on the motion of the Honourable Senator Dalphond, seconded by the Honourable Senator Bovey, for the third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), as amended.

Senator Gold: Thank you for the question. With respect, senator, it is not the case the minister does not recognize the problem. The government and the minister thank the commissioner for her report and take access to information seriously. There are more requests, indeed, and they are more complex. The government is taking action.

I am advised that Library and Archives Canada is creating a task force to address the issues. It is reducing the backlog and developing a long-term plan. The government, for its part, added $25 million in Budget 2022 to make documents related to residential schools accessible to all survivors. The government hopes these measures will improve the situation as set out in the report.

Hon. Marty Deacon: Honourable senators, my question is for the Government Representative in the Senate. Senator Gold, about this time last year I inquired about plans to begin a three-year review provided for in the Cannabis Act as I was concerned we would miss the deadline on starting this important work. The three-year mark was this past October, but the only reference made to the cannabis industry by government was the launch of the cannabis strategy table to engage with the industry in this year’s budget document. This will not really look at the public health aspect, and I would suggest this falls short of the kind of review envisioned by the Cannabis Act.

When will the government begin this important review of the Cannabis Act and its impact on Canadians?

Senator Jaffer: Senator Gold, congratulations on an extremely well-thought-out and very difficult speech. Also, congratulations to the minister. As you said in your speech, it is not an easy thing to change politically and in all other ways. I compliment you and the minister. The minister has been very courageous in doing this.

But, senator, you know where I’m coming from and, of course, I support what you said, every single word you said. But to everything you say — that one size does not fit all, that we have to introduce discretion into the justice system, and, as you say, that this is difficult — yes, it’s difficult. I am saying to you not to shoot for the moon. I am saying to you that there are some cases to consider. In my calculation — and we will sort this out in committee — you said 20; I would have said 22, but that doesn’t matter.

The government is making mandatory minimum changes on 20. From what I’ve counted, there are around 73 mandatory minimums, and the judges have held at around 37. My figures may be wrong. I’m not sure — 37 mandatory minimums seem to be unconstitutional.

I say to you that there is now a mishmash out there, 20 and 37, and then there is 73. Would the government look at, in unusual and cruel circumstances, allowing the judge, on mandatory minimums, to have the discretion to not impose mandatory minimums?

Thank you, Senator Gold, once again for an excellent presentation.

Senator Gold: Well, I’ll certainly make inquiries. I will do that, but I really do want to underline the point that this is not a bill about pepper spray. This is a bill about judicial discretion to avoid injustice where circumstances and justice require that discretion be exercised and where the law simply does not allow the judge to have that discretion.

Senator Christmas: Thank you, Senator Gold. I would very much be interested to see what studies and projections were done. I think that kind of data will be most useful.

I also appreciate the reintroduction of community service orders, and I believe the success of that amendment will depend upon a significant increase in support services that are offered to the communities. Quite often judges are so hesitant to refer individuals back to the communities because of the lack of services.

You mentioned some funding increases, but has Indigenous Services Canada been a part of this bill? Will they significantly increase the amount of support services that the communities will need to assist people on community service orders?

Hon. Mobina S. B. Jaffer: Senator Gold, thank you very much for your presentation.

The National Security and Defence Committee has a very competent steering committee, and they chose 12 witnesses. You are saying that we didn’t have children appear before our committee. These witnesses are well-known people who, I’m sure, have studied this material. I think it’s a little unfair to say that they couldn’t speak for the children. I can’t repeat the words you said because I don’t have them in front of me, but I think it’s a bit unfair.

The steering committee had an opportunity to call those witnesses. They could have called children if they had deemed it necessary. As chair, I have done that a number of times. The fact that they called 12 credible people to the committee, do you not think they were able to balance the number of witnesses? Don’t you think you were unfair in the way you addressed those witnesses who appeared before us and provided good testimony?

The Hon. the Speaker: I regret to inform the honourable senator that her time has expired again. Are you asking for more time?

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

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

[English]

An Hon. Senator: On division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)

(At 11:39 p.m., the Senate was continued until tomorrow at 2 p.m.)

Senator Gold: Thank you, senator, for your question. Of course, the government and I share the concern, as we all should, that the application of any legal standard could encourage a bias or racial profiling.

I do believe that the general concern speaks more to the fact that with digital devices, unlike other kinds of measures — and I addressed this in my speech — the officer may have no specific contravention in mind and no knowledge of what he or she may find because they are simply in the moment, although there would have been objective indicators to signal that something may be being hidden.

We had testimony before the committee as to what some of these indicators might be. I believe that it is still very much focused on the individual before the officer who has, in some way or other, in the answering of the normal questions one is asked, given some indication that there is something amiss and, therefore, is then required to go to a second stage of questioning, at which point the officer may very well have reached the conclusion that the threshold has been met.

Senator Gold: The attendance of the official at the party was a mistake and unacceptable. It has been so stated by the minister and by the Prime Minister himself. It shall not happen again.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, senator. The government believes that contractors and subcontractors in the construction industry deserve to be paid promptly. Regarding the specifics of your question, I will have to make inquiries with the government and report back to the chamber.