Some Hon. Senators: Hear, hear!

(Bill deemed read third time and passed.)

Hon. Leo Housakos (Acting Leader of the Opposition): Honourable senators, I ask for leave that the bill be deemed read a third time and passed by this chamber.

Senator McCallum: Yes, please.

Hon. Pierre J. Dalphond moved second reading of Bill S-3, An Act to amend the Judges Act.

He said: Honourable senators, it is my pleasure to rise today to initiate second reading of Bill S-3, An Act to amend the Judges Act. I would like to draw my colleagues’ attention to one of our most important duties as parliamentarians — to serve as good custodians of the institutions we have inherited from our predecessors, which will survive beyond our service in this chamber.

No one here would dispute that our system of justice — and the independent and outstanding judiciary who serve at its core — represents one such institution. Yet, judicial independence and excellence do not flow inevitably from our Constitution, however much we may be tempted to take them for granted. They require the sustained effort and attentiveness of many different actors over time, this chamber among them.

Today, we are called upon to ensure that the legislative framework enabling oversight of the conduct of federally appointed judges is up to the task. We are also called upon to ensure that the process by which Parliament may ultimately be asked to remove a Superior Court judge is one that is and appears fair, effective and worthy of Canadians’ confidence and trust. These are weighty responsibilities, and I look forward to our debate during the course of second reading of this bill and its review in committee.

[Translation]

Allow me to begin by sharing the context for this legislation with you. Drafters of the Constitution, mindful of the importance of the independence of the judiciary, a principle first recognized in the Magna Carta, made sure that once judges are appointed, they could not easily be removed by the government or by Parliament. As we know, this process exists in the U.S. as well, and they call it the impeachment of a judge.

This principle is set out in section 99 of the Constitution Act, 1867, which, in its still unofficial version, 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.

Since 1867, four such motions have been considered, but the judges resigned before either chamber could make a decision. Therefore, it is not an often-used process, but it remains very important in our Constitution for preserving judicial independence and intervening in cases where necessary.

[English]

In 1971, Parliament amended the Judges Act to provide for the creation of the Canadian Judicial Council, a body chaired by the Chief Justice of Canada and comprising every chief justice and deputy chief justice of the country’s superior courts, including the federal courts.

The council, or CJC, was mandated to promote efficiency and uniformity, and to improve the quality of judicial service in Canada’s superior courts. As a critical part of this mandate, the CJC is given the authority to investigate allegations of misconduct against Superior Court judges. When such allegations are determined by the CJC to be so serious as to warrant removal from office, the act directs the CJC to submit a report to the Minister of Justice with a recommendation that the judge be removed from office. The minister must then decide whether to put the matter to Parliament, inviting both chambers to exercise their constitutional power under section 99(1) of the Constitution Act, 1867 — to which I referred earlier — requesting that the Governor General dismiss the judge.

Crucially, this power is tempered by the constitutional principle of judicial independence and the security of tenure it affords to every Superior Court judge in the absence of their proven incapacity or misconduct.

[Translation]

By imposing a process where judges themselves investigate allegations of misconduct against their colleagues, the 1971 legislation protected judges from acts of intimidation or retaliation by the executive power, Parliament, a party dissatisfied with a ruling or the public pressure of the day.

Furthermore, since the Judges Act provides that we, the parliamentarians, cannot remove a judge until we have received the report and recommendation of the justices in charge of the investigation, Canadians can rest assured that this draconian measure will only be taken when it is truly justified, subject to the rigorous safeguards of judicial independence and procedural fairness.

The Supreme Court has established in previous rulings that these are constitutional obligations, and it even extended them to the provincial courts. The Judges Act is the means by which these obligations are fulfilled at the federal level.

The model adopted by Canada for regulating the conduct of federally appointed judges remains one of the best in the world. However, its main elements have not changed since 1971, despite fundamental changes in administrative law and the evolution of public values and expectations, which inform the development of standards for judicial conduct. Consequently, certain structures and procedures under the current framework of the Judges Act may be considered outdated. Even worse, we recently saw that they are not always effective or efficient, which undermines the public confidence that they are supposed to inspire.

[English]

Several issues have emerged as cause for concern. One of these is the length and cost of judicial conduct proceedings. Inquiry committees constituted by the CJC are considered to be federal administrative tribunals. As such, their decisions, whether interlocutory or final, are reviewable first by the Federal Court, then by the Federal Court of Appeal, and possibly, with leave, by the Supreme Court of Canada.

This gives the judge subject to the process — or maybe his or her lawyer — an opportunity to initiate as many as three stages of judicial review. 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 interests. In a recent case, the Federal Court of Appeal refused to hear an appeal regarding a judicial review of the Federal Court, saying this was abuse of process. This has proven to be a recipe for adversarial zeal, as I said, and we need to act. Judicial conduct inquiries can be delayed for years as a result.

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In a recent case, a complaint process initiated in 2012 resulted in the recommendation of the council that a judge be removed from office. That became final only in February 2021, nine years later. But, honourable senators, during that entire period — until the day the Governor General dismisses the judge or until the voluntary retirement of the judge — a judge’s salary continues to be paid and their pension benefits keep accruing; that is until recently. In addition, the legal fees and costs accrued by the council and the judge, before the council’s panels and the courts, are assumed by the taxpayers.

The last Budget Implementation Act we adopted contained provisions to freeze a judge’s pension entitlements as soon as the Canadian Judicial Council decides or recommends that the judge should be removed from office. Unless a decision is overturned on appeal or rejected by the Minister of Justice or by either chamber, the judge will only be entitled to the pension that would have been received up to the date of the hearing panel’s decision that the removal is justified. That should shorten the process by years, or at least it removes a motive or grounds to keep fighting before the courts.

The fact that judicial independence warrants the provision of publicly funded counsel to a judge has meant that, in some cases, lawyers have collected millions of dollars in fees for launching exhaustive legal challenges that are ultimately proven to be without merit, such as in the case I referred to previously. The situation demands correction.

Commenting on the case that took roughly nine years, after the Federal Court of Appeal’s decision was rendered in the summer of 2020, in an open letter to Canadians, the Canadian Judicial Council wrote:

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.

That came in a press release from the chief justices of the superior courts of Canada — a very rare occasion.

The following is from a press release then issued by the Canadian Council, chaired by the Chief Justice of Canada.

At the close of the entire process regarding that judge, on February 25, 2021, eight years after the first complaint in connection with the same judge, 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”.

This bill is the response from the government.

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. It 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.

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 is 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 provoke them; they would provide greater opportunities for early resolution and reserve the most costly and 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, the council must deliberate, with at least 17 members present, and prepare a report and a recommendation to the minister. This approach goes beyond what procedural fairness requires, but it places a significant burden in terms of time and energy on at least 17 Chief Justices and Associate Chief Justices, who must review the transcripts of the proceedings before the inquiry committee, as well as written submissions from counsel and sometimes even oral submissions regarding the inquiry committee. 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.

Those are just a few of the reasons for which the legal process for judges must be reformed. 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 ongoing discussions with representatives of the Canadian Judicial 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. I have the utmost respect for the work of the association and the council, given that in my former life, I was president of the association for a few years and was also a director for over a decade. I was also a member of some of the council’s committees. These are important issues, and I am pleased that the government is proposing improvements to the system.

I will come back to the importance of these consultations at the end of my speech. For now, suffice it to say that nearly everyone involved supports the proposed changes, which I believe will improve the effectiveness, cost-effectiveness, flexibility and transparency of the disciplinary process for judges, while respecting the principles of fairness and judicial independence, which is so essential.

Those are the objectives of the bill. I will now describe some of its key aspects.

[English]

The legislation before you introduces a more versatile process. After initial screening by CJC officials, any complaint that cannot be dismissed as completely without merit will be referred to a review panel composed of representatives of the public and the judiciary.

After reviewing the matter on the basis of written submissions only, the review panel would 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 an apology.

This would enable the effective, fair and early resolution of cases of misconduct that do not require a full-scale public hearing.

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Should a review panel decide that an allegation against a judge may indeed warrant their 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 representation by a lay member of the public and by a representative of the legal profession in addition to judicial members. 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 their own counsel. In sum, the process will be structured as an adjudicative and adversarial hearing — a format that befits 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 would determine whether or not a judge should be removed from office. It would 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, intended to be exceptional, will only be taken when it is truly justified. Therefore, it is not an often-used process and does not intend to be one.

The rigour of the hearings 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 itself will be made public, ensuring transparency and accountability.

At the conclusion of the hearings 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 decision to an appeal panel. This appeal mechanism will replace the current recourse to judicial review before the Federal Court, the Federal Court of Appeal and leave the Supreme Court. In other words, rather than making the 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.

A five-judge panel would hold public hearings akin to those of an appellate court and have all the powers needed to effectively address any shortcomings in the hearing panel’s process. Once it has reached its decision, the only remaining recourse available to the judge or the counsel that was acting before the hearing panel will be to seek leave to appeal to the Supreme Court of Canada. They will be only one step into the legal system, strictly speaking, with the Supreme Court on leave. Entrusting process oversight to the Supreme Court 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 giving 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 to the public purse. The costs should be as transparent as possible and subject to sound financial controls. The bill 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. This 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.

[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 — would continue to be sought through the regular budget cycle. However, the second stream — consisting of highly variable and unpredictable costs associated with cases that proceed to public hearings — would be funded through a targeted statutory appropriation established in this bill. In other words, costs associated with public hearings would be paid directly from the Consolidated Revenue Fund.

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. The type of process expenses as well as guidelines for their quantum must be clearly spelled out. 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 it captures 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 bill and limiting judges who are subject to proceedings to one principal lawyer.

The bill also requires that the Commissioner for Federal Judicial Affairs 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 to be adopted by the government. These guidelines must 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. He could be asked questions about this in the future.

Finally, the bill requires that a mandatory independent review into all costs paid through the statutory appropriation be completed every five years. 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.

[Translation]

During the reform drafting process, the government paid close attention to the public feedback that was collected through an online survey and to the 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 have already mentioned, the Canadian Judicial Council and the Canadian Superior Courts Judges Association were consulted. The participation of representatives from the council and the association was both necessary and appropriate, because the Constitution dictates that this process must be managed and administered by the judges. By consulting the council, the government was able to get feedback from the people directly responsible for administering the judicial discipline process.

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Furthermore, by consulting the association, the government was able to hear directly from the representatives of the judges subject to this process.

In the same press release I 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 the judges themselves to fulfill an important public mission, I hope that our deliberations will be guided by respect for their experience and wisdom.

I would also like to point out that on June 9, 2021, when I introduced this bill in the last Parliament before it died on the Order Paper, the Canadian Judicial Council released the revised and modernized version of Ethical Principles for Judges mainly to provide better oversight of judges’ conduct.

[English]

In conclusion, I began this speech by noting our responsibility as parliamentarians to serve as good custodians of the institutions we inherit, including an independent judiciary. More than 50 years ago, our predecessors had the foresight to craft 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 them. 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 of the tools needed to protect the public trust in a modern and evolving society. These include tools to enhance efficiency, to bring transparency, to ensure accountability, to provide versatility and to 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. Mobina S. B. Jaffer: Honourable senators, I rise today to speak on second reading of Bill C-4, An Act to amend the Criminal Code (conversion therapy).

I want to begin by thanking Senator Cormier, the sponsor of this bill. He has worked very hard on the former Bill C-6 and now Bill C-4. He and his office, including Marilyse Gosselin, have worked exceptionally hard to ensure that Bill C-4’s vision is realized and we will all see that. Thank you for your dedication. I also want to thank my own team, including Madison Pate-Green, for all their hard work and support.

Honourable senators, like many of you, I have received countless emails and calls from Canadians who have views on all sides of this bill. I believe we need to ensure all sides are heard in this debate. One email I received pleaded with me:

If passed into law, parents risk five years in jail for asking a counsellor to help them work through gender dysphoria issues with their child. . . .

If this bill is passed it will prevent members of the LGBTQ+ community from getting the help they desire. During debate on Bill C-6, this bill’s predecessor, the House of Commons Standing Committee on Justice and Human Rights heard testimony from LGBTQ+ Canadians about how counselling helped them understand their identity and reduce their non-heterosexual sexual behaviour. . . .

Parents, teachers, and pastors should all be able to play a supportive role in the life of a young person struggling with gender identity. . . . Harmful forms of conversion therapy should be banned. But Bill C-4 is too broad, and wrongly includes Christian counselling and other support services in the ban.

Honourable senators, we just heard from Senator Cormier — and we will hear from others — that it will make Canadians realize that conversation is not what this bill is about; it is about harming individuals. And I believe, senators, there is still doubt in the minds of some Canadians that this bill prevents conversations. They only have to hear what Senator Cormier said — and I’m sure when the minister comes to the committee it will give them assurance that it is not about banning conversations between parents or counsellors; it is about harming an individual. Just as we did with medical assistance in dying, we have a responsibility to listen to all Canadians across our country and really consider what they are telling us. Given that this is second reading, I will continue listening to all the speeches as this debate continues.

Many Canadians believe that conversion therapy is rooted in the idea that to identify as anything other than straight or cisgender — meaning a person whose personal and gender identity are the same as their birth sex — is a mental illness. There are lots of studies that tell us children who are forced into unaccepting and thus harmful environments will, in turn, often experience detrimental mental health. This can manifest in many ways, such as symptoms of anxiety, depression and, in the worst and most traumatizing circumstances, death by suicide.

David Kinitz is a PhD student in social and behavioural health sciences at the University of Toronto. He very courageously shared his story:

I am a survivor of conversion therapy and I know first-hand how harmful it is. At 16, I decided to self-enrol in conversion therapy out of a desire to be “straight” and act in more masculine ways. My formative years were filled with invalidating experiences and heteronormative pressures that led me to the point of thinking that being queer was something that was incompatible with living in our society, forcing me to want to consider changing, or worse, take my own life.

I’m telling my story because I believe no other youth should go through what I, and so many others, have experienced.

He goes on to say that, “Conversion therapy should be criminalized.”

I am now a health researcher and an advocate of LGBTQ+ equity working on a project at Simon Fraser University led by social epidemiologist Travis Salway. The study hopes to understand experiences of survivors and to recommend healing methods.

Echoing David’s sentiment, in 2012, the Pan American Health Organization found no medical justification in the practice and that it threatened the health and human rights of those who endure it.

In 2016, the World Psychiatric Association reportedly found “. . . no sound scientific evidence that innate sexual orientation can be changed.” Further, the Independent Forensic Expert Group of health specialists regard conversion therapy as deceptive, false advertising and fraud.

Less than 25% of Canadians believe that you can actively convert an LGBTQ+ person to become heterosexual through psychological or spiritual intervention. Support in banning conversion therapy across Canada was highest amongst women, at 62%, and those aged 18 to 31 at 64%. In 2019, an opinion poll highlighted that a majority of Canadians, three in five, are against conversion therapy. That same year, the current federal government publicly called upon all provinces and territories to ban this torturous practice.

Recently, a UN envoy cited a global survey that suggests four out of five people who endure conversion therapy were younger than 25, roughly half of whom were under the age of 18.

Honourable senators, I now want to read to you parts of conversion therapy that are far too often swept under the rug of paralyzing shame and unhealed trauma: beatings, rape, forced nudity, force-feeding or food deprivation, isolation and confinement, forced medication, verbal abuse and humiliation.

According to Article 37(a) of the United Nations Convention on the Rights of the Child:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(1620)

Honourable senators, I know that conversion therapy strips a person of their most basic and intrinsic liberty to be free from persecution, free from hatred and free to be themselves without fear.

Senators, I want to share with you that when we went through the MAID hearings, they were long. We had all kinds of people who spoke to us with different points of view on that bill. When I travel across the country even now, I hear from people who are still not sure, but they were at our hearings and said that at least they were heard.

I genuinely believe that in our country today we need conversations. We need to understand the points of view of other people. If we shut down debate, we are essentially saying that we don’t care how you feel. If we open the door, even if we don’t agree with them, we’ll make them feel heard.

That’s why today, senators, I stand in front of you at second reading and ask that you consider sending this bill to committee so that those people who feel that their point of view should be heard will be heard. I thank you for your attention, senators.

The Hon. the Speaker: If anyone is opposed to leave, please say “no.” Leave is granted.

Hon. Leo Housakos (Acting Leader of the Opposition): Just a clarification, government leader, for the record, we’ve been in discussions in regard to ministerial Question Period. Our side is very comfortable with the content of this motion. We want to verify that we will go back to the tradition of respecting the rule in this chamber that strangers who are not officially summoned senators cannot take a seat in the Senate. Thus, ministers of the Crown, like any witness when they come to the chamber, will be testifying and answering questions from senators from the witness dock. I just wanted to put that on the record that the government leader has acquiesced to that request.

The Hon. the Acting Speaker: Honourable senators, are you ready for the question?

Hon. Senators: Question.

Senator Moodie: Certainly, Senator Boisvenu, that would be the case. But in really heavily evidence-driven conversation like I just presented, I would spend a lot of my time, more than half of my speech, referring to sources. I can provide that to you and the clerks if that is useful, but I don’t think it was valuable to our time here to be referring back to bibliographies.

(On motion of Senator Martin, debate adjourned.)

Hon. Pierre J. Dalphond moved second reading of Bill S-207, An Act to change the name of the electoral district of Châteauguay—Lacolle.

He said: Honourable senators, I will not take as long as I did to talk about the bill on judicial discipline, which is a far more complex topic than the one I will speak to now for a few minutes.

Honourable senators, today I am pleased to undertake second reading of Bill S-207, An Act to change the name of the electoral district of Châteauguay—Lacolle.

This little bill has two short clauses and would finally act on the will of the House of Commons, which in 2018 passed a private member’s bill that had been introduced by MP Brenda Shanahan in 2017 to fix an error made in 2013 by the Federal Electoral Boundaries Commission for the Province of Quebec that has since been criticized by constituents in my senatorial division, De Lorimier.

Unfortunately, after being introduced in the Senate by our former colleague, Senator André Pratte, this bill died on the Order Paper in June 2019 while being considered by the Legal and Constitutional Affairs Committee, to which it had been referred seven months earlier on November 22, 2018.

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The members in the other place fixed this error more than three years ago, but the Senate did not.

Allow me to explain this error by providing some historical context on the Senate division of De Lorimier, which I am honoured to represent in the Senate.

As you all know, in 1867, Quebec, known then as Lower Canada or Canada East, was divided into 24 electoral divisions with precise geographical boundaries, much like the 54 ridings at the time. This was done to facilitate the election of senators and is not seen elsewhere in Canada.

[English]

As you may know, the parliament of the Province of Canada, created by the Union Act of 1840, had two houses: the legislative assembly and the legislative council. The latter was the upper house of the united parliament. In 1854, in response to a request from Canadians, the British Parliament adopted a bill that authorized the election of the legislative councillors, and in 1856, implementation legislation was passed by the parliament of the Province of Canada. Pursuant to this legislation, the new members of the legislative council were to be elected for eight-year terms from 48 divisions: 24 in Upper Canada and 24 in Lower Canada. Twelve members were elected every two years from 1856 to 1862. As you know, Sir John A. Macdonald and Sir George-Étienne Cartier were not very keen on having elected senators. They thought this would be detrimental to the status of elected MPs. Of note, since 1914 — since the ratification of the seventeenth amendment in the U.S. — all U.S. senators have been chosen by direct popular election. This resulted in a transformation of the relationship between the U.S. Senate and the House of Representatives. That has resulted in the real power being in the Senate.

In Canada, to avoid upsetting the elected members of the then upper house of the united parliament, Sir John A. Macdonald wisely suggested to the Crown in 1867 that they appoint nearly all of them to the new Canadian Senate.

In other words, most of the first senators appointed to this chamber had been previously elected. This could be of interest to those who were recently elected by Albertans to represent them in this chamber and now wish to submit their names to the advisory committee on Senate appointments, in order to be considered for appointment to the Senate. In their letter, they should refer to the 1867 precedent.

[Translation]

The 24 senatorial divisions in Quebec correspond to the 24 divisions created to elect 24 councillors to the legislative council in 1856. In accordance with section 22 of the Constitution Act, 1867, even today, Quebec senators are appointed for each one of these 24 divisions, unlike the situation in Ontario. Because Quebec’s area has increased since 1856, part of modern Quebec does not have Senate representation.

At present, my Senate division includes three electoral ridings: Saint-Jean, Châteauguay—Lacolle and Salaberry—Suroît.

Additionally, in my beautiful Senate division, there are three places with the name Lacolle: the municipality of Lacolle, the site of two battles that took place during the War of 1812, with a population of about 3,000; the municipality of Saint-Bernard-de-Lacolle, with a population of 1,600; and one of the busiest border crossings in the country, Saint-Bernard-de-Lacolle, which is located a few kilometres from an equally well-known crossing, Roxham Road, which is used by people wanting to illegally enter Canada to claim political asylum or for family reunification purposes without being turned away as they would be at a regular border crossing.

The two municipalities, both proud of their distinct history and their current circumstances, are located just 11 kilometres apart and near the border with the state of New York. In the minds of people from outside the region, there has always been some confusion between these two municipalities.

What is more, most people who cross the border into the United States, and even the media, refer to the customs station in Saint-Bernard-de-Lacolle as the Lacolle border crossing.

The confusion was compounded in 2013 when the redrawn federal riding in my senatorial division was named Châteauguay—Lacolle.

Châteauguay is the main municipality in the area, so it is only natural that it would be part of the name of the riding represented by Ms. Shanahan, who was first elected in 2015 and has since been re-elected twice, including this October, with a slim majority of 12 votes following a judicial recount that ousted an adversary who had been declared the winner on election night.

However, the municipality of Lacolle is not part of that riding, so adding it to the riding name is a mistake. That municipality is actually located in the adjacent riding of Saint-Jean, which has been represented since 2019 by MP Christine Normandin, a respected lawyer I have had the pleasure of collaborating with.

In other words, the commission responsible for electoral redistribution in 2013 made a mistake when it added the “Lacolle.” The new riding could have been called Châteauguay—Saint-Bernard-de-Lacolle, but not Châteauguay—Lacolle.

The members who reviewed the commission’s work missed this mistake at the time. People in my senatorial division did pick up on it, however. The people of Lacolle, Saint-Bernard-de-Lacolle and other parts of my division reported the mistake to the candidates running in the 2015, 2019 and 2021 elections.

In fact, during the 2015 election campaign, Ms. Shanahan committed to changing the riding name. Once she was elected, she introduced a bill in the other place to change the name Châteauguay—Lacolle to Châteauguay—Les Jardins-de-Napierville. This bill, Bill C-377, was adopted.

This new name emerged from extensive discussions with residents, mayors and regional stakeholders. The name Châteauguay—Les Jardins-de-Napierville was a logical and meaningful choice for several reasons.

First, Jardins-de-Napierville is the name of the RCM, or regional county municipality, that includes 9 of the 15 municipalities in the riding called “Châteauguay—Lacolle.”

Second, the largest city, Châteauguay, is on the northwestern edge of the riding, while the Jardins-de-Napierville RCM includes the nine municipalities in the southeastern part of the riding.

Third, the Jardins-de-Napierville RCM, whose beauty is reflected in the word “jardins,” meaning gardens, is Quebec’s top market gardening region, for which it has earned quite a reputation as well as a prominent place on Quebecers’ dinner plates.

Fourth, the name Châteauguay—Les Jardins-de-Napierville reflects the part urban, part rural character of the riding.

In short, the name proposed in the 2016 bill is uncontroversial. Quite the opposite: All the mayors in the region support the name change, and several hundred people even signed a petition urging us to pass the bill in 2017.

Lastly, the name “Châteauguay—Les Jardins-de-Napierville” meets all the technical criteria set by Elections Canada.

In May 2018, Ms. Shanahan’s Bill C-377 was introduced in the Senate, sponsored by our former colleague André Pratte. Well aware of the situation, Senators Pratte, Dawson and Carignan rose in this chamber on behalf of the three groups represented in the Senate and spoke in favour of the bill at second reading stage. No one spoke against it.

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However, the bill was only passed by the Senate at second reading stage on November 22, 2018, and was then referred to the Legal and Constitutional Affairs Committee for what we hoped would be a short, quick study.

Unfortunately, as this was a private member’s bill and not a government bill, it could not be studied by the Legal and Constitutional Affairs Committee in the seven months that followed, because the committee was very busy studying government bills, including the numerous amendments to the Access to Information Act and the Criminal Code, as honourable senators will recall.

Today I propose that we finish the work that was interrupted in June 2019 by referring this bill to the Legal and Constitutional Affairs Committee, which could quickly proceed to a study that I believe will be rather short.

Having said that, some may wonder if it is still necessary to correct the mistake made in 2013, now that we have electoral boundaries commissions, which fulfill the constitutional obligation to review riding boundaries after every 10-year census.

The redistribution process defined in the Electoral Boundaries Readjustment Act could lead to changes in the boundaries of three ridings in my Senate division and possibly new designations. To answer this legitimate question, I have to point out several things.

First, the boundaries commissions will start their work in mid-February 2022, when Statistics Canada publishes the population numbers from the 2021 census. Then there will be the publication of a proposal on electoral boundaries for each province, prepared by the relevant boundaries commission. Next, there will be public hearings and reports that should be submitted to the Speaker of the House of Commons around mid-December 2022, although that deadline could be extended by two months. The reports will therefore be sent to the House of Commons toward the end of 2022 or the beginning of 2023.

These reports will then be referred to a House of Commons committee, where objections signed by at least 10 members may be filed within 30 days. The committee then has to study the objections received in the 30-day period and draft a report that will be transmitted to the relevant boundaries commissions.

So ends the parliamentary phase set out in the legislation, while adding at least two months to the process.

It will then be up to each of the commissions that received objections to determine if there is good reason to change the boundaries or names of ridings before submitting a final report to the Speaker of the House of Commons, care of the Chief Electoral Officer. That step should be completed in May or June 2023.

The Chief Electoral Officer will then prepare a representation order describing the electoral districts established by the commissions and send it to the government, which is supposed to pass an order-in-council within five days of receipt. This step should be completed in September 2023 or the month after.

Lastly, pursuant to the act, the order-in-council will become effective on the first dissolution of Parliament that occurs at least seven months after the date fixed by the proclamation, which would be April 2024 at the earliest, or possibly May or June 2024.

In short, Canada’s new electoral map, including the boundaries and designations of the 342 ridings, 77 of them in Quebec, not 78 anymore, would not apply until a general election called after April or May 2024 at the earliest.

Had the October 2021 election produced a majority government, we might conclude that there’s no point fixing the historical error in the name of the riding represented by Brenda Shanahan. However, she says her bill is still necessary.

Indeed, the probability that the constituents in the federal riding of Châteauguay—Lacolle will return to the polls in a general election called before April or May 2024 cannot be ruled out.

In that situation, voters should not be asked to vote again to elect a member of Parliament who will represent a misnamed riding for a few more years. In short, it would be wise to finally pass this bill, and I urge everyone to do so as soon as possible.

Thank you. Meegwetch.

[English]

Senator Omidvar: Of course.

Hon. Pierre-Hugues Boisvenu: Senator, if I understood you correctly, you stated in your speech that most of the population wants minimum sentences to be abolished and wants to let judges have full discretion when sentencing persons convicted of assaulting children, abusing minors or spousal abuse. What studies are you referring to when making this statement?

[English]

Senator Boisvenu: Senator, to lend credibility to your arguments and to this bill, when stating that the majority of Canadians are in favour of a given measure, should you not be citing the study, author and page where these facts are found?

[English]

Senator Cordy: Honourable senators, rule 12-2(3) says:

Except as otherwise provided, once the report is adopted by the Senate, Senators appointed to the standing committees and the standing joint committees shall serve for the duration of the session.

Senator Moncion, this rule was followed when there were just two political parties in the Senate. It has only been very recently that people have suggested that this would not follow, that there would be an exception notwithstanding this rule, and that senators would lose their seats on a committee once they left the group.

Senator Cordy: Certainly.

Hon. Lucie Moncion: Senator Cordy, you mentioned rule 12-2(3). I would like you to explain how this rule applies to the Senate the way it is today, as opposed to the way the Senate was when only two parties were represented in the Senate.

Hon. Pierre J. Dalphond: Honourable senator, will you take a question?

Senator Cordy: Absolutely, the Senate has changed, and that’s a positive thing. Thank you for bringing that forward. But, as I said in my speech, just because a rule is old doesn’t mean that it is not applicable. This rule is probably worded differently in other areas, but we know that there are senators who have left their groups before what I will call this “notwithstanding” or this motion was brought forward so that people would lose their committee seats when they changed groups. We know — and I don’t want to mention names — that there are senators sitting here in this chamber, whether virtually or in person, who have changed from one group to another and did not lose their committee seats at that time. That was the way it was prior to the past few years, and this was the case prior to bringing in the “notwithstanding” change for a sessional order, that people who switch groups would lose their seats.

Senator Dalphond: If I understood what you said, you proposed we deal with these assets the same way we deal with what we call the Proceeds of Crime Act in Canada, not in a criminal proceeding but in a civil proceeding where it’s the balance of probability and not the higher level of evidence that is required, and where we confiscate, and the judiciary will give an opportunity to everybody to speak. Then the assets will be handed over to an organization that the court will decide based on whatever the Crown or the Attorney General will propose.

As a judge, I’ve been involved in cases where we had seized money. It’s often more effective than criminal actions, because we take the money; we take the property; we take the gold, the jewellery and so on, and that hurts.

I certainly support your bill. It’s a great opportunity to go after criminals who are living beyond our jurisdiction but have assets here. As you said, if it’s corruption, it’s a crime. If a crime was committed, it’s the proceeds of a crime.

If I understand well, you will propose civil proceedings similar to what we have for criminal money. I certainly support that. Thank you.