Hon. Pierre J. Dalphond: Honourable senators, I rise today in support of Bill C-39. As you know, this bill proposes to delay by one year, until March 17, 2024, the possibility for those suffering from an irremediable mental illness causing them intolerable pain to request medical assistance in dying.

Hon. Pierre J. Dalphond: Honourable senators, I rise today in support of Bill C-39. As you know, this bill proposes to delay by one year, until March 17, 2024, the possibility for those suffering from an irremediable mental illness causing them intolerable pain to request medical assistance in dying.

The bill has only one very short provision that targets only one provision of the Criminal Code, the one that makes mental illness ineligible for medical assistance in dying.

My speech has three parts. First, I want to talk about where the exclusion for people suffering from mental illness came from. Second, I will explain why the Senate refused to support that exclusion in 2021, and third, I will talk about the reasons for extending the exclusion.

The debate we’re having here today is in response to the September 11, 2019, ruling of the Quebec Superior Court in Truchon and Gladu.

This ruling found unconstitutional some provisions of the Criminal Code and some provisions of Quebec’s Act Respecting End-of-Life Care, which made a reasonably foreseeable death a condition for accessing medical assistance in dying. According to the judge, this criterion, which wasn’t suggested by the Supreme Court in its 2015 ruling in Carter, violated the constitutional rights of Mr. Truchon and Ms. Gladu, namely the right to equality.

Both the Government of Quebec and the federal government accepted that ruling and promised to take appropriate action.

At the federal level, this took the form of Bill C-7, which was introduced on October 5, 2020. The bill added a second pathway to medical assistance in dying for people suffering from an incurable disease that is causing them intolerable suffering, without that suffering being the cause of imminent or foreseeable death.

By contrast, in Bill C-7, the government proposed to deny access to medical assistance in dying to individuals suffering only from mental illness, arguing that this was an appropriate measure given the lack of sufficient consensus among psychiatric experts at the time.

[English]

This is the origin of track 2 and of the exclusion of those suffering from only a mental illness, even if their illness was found to be incurable and the source of unbearable suffering as explained by Senator Kutcher a few minutes ago.

I move now to the reasons why the Senate disagreed with the permanent exclusion. As you may remember, Bill C-7 received much attention in the Senate. First, there was a pre-study in the fall of 2020 that led to a comprehensive report released in February 2021, which has been quoted extensively by many witnesses before the joint committee recently.

On the exclusion of mental illness as a sole condition, our legal committee reported a lack of consensus about the irremediable character of many mental illnesses and signalled that renowned legal experts, such as Professor Downie of Dalhousie University, have argued that the exclusion was unconstitutional.

During the third reading debate in the Senate, five amendments were adopted — some after lively debates. One was the addition of an 18-month termination date on the exclusion of those suffering solely from a mental illness. For the majority of this chamber, this group exclusion was discriminatory, resting on stereotypes and biases against mental illness and thus even unconstitutional. Only a mechanism providing for a case-by-case assessment of requesters of MAID could be acceptable.

The government finally agreed with this conclusion, ending the group exclusion through a sunset clause two years after Royal Assent. That’s going to be March 17, a few days from now. In addition, the government proposed an independent review by experts in relation to MAID and mental illness, including safeguards.

A majority of the House of Commons agreed with these proposals, and we later accepted them. As a result, the exclusion from track 2 of those suffering from a mental illness was to end on March 17, 2023.

At the time and to this day, many psychiatrists and citizens believe that a group exclusion for individuals suffering from an incurable mental illness is the option to be preferred. This is the goal of Bill C-314, a private bill tabled yesterday in the other place.

But it remains that this is not the view of most Canadians according to a recent poll conducted by Ipsos for Dying With Dignity Canada. In the context of treatment-resistant mental illness with intolerable suffering, 34% of Canadians strongly support access to MAID in such a case, 48% somewhat support access, 10% somewhat oppose and 7% strongly oppose.

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Essentially, over 80% of Canadians think that access to MAID should be available for those suffering in that type of situation, which is incurable illness and unbearable suffering.

In my view, those numbers confirm that the Senate rightly concluded that a permanent exclusion was not only unjustified and likely unconstitutional, but also that Canadians do not support further stigmatization of those suffering from an incurable mental illness. The law should not treat them as unable to make a choice for themselves by denying access to track 2 if they are otherwise eligible and meet the safeguards provided for track 2.

Bill C-39 does not revisit the exclusion issue but, rather, it extends by one year the current temporary exclusion. We must ask this: Why postpone the coming into force of track 2 access for those suffering solely from a mental illness who otherwise meet the stringent requirements of track 2? The answer is that Parliament should proceed with some caution in lifting the exclusion in order to allow provinces and territories sufficient time to prepare for the required assessments. Harmonization and proper training for assessors are critical.

As Minister of Health Duclos has noted, the development of practice standards for MAID falls outside direct federal responsibility. He also said that the government:

. . . is actively engaging [provinces and territories] and the Federation of Medical Regulatory Authorities of Canada on the development of consistent practice standards.

In his speech, Senator Kutcher referred to the efforts that are being deployed across Canada to achieve such harmonization and develop assessment procedures and standards.

The recent Special Joint Committee on Medical Assistance in Dying, where I had the honour to serve with Senators Martin, Kutcher, Mégie, Wallin and 10 members of Parliament, shared the responsibility of completing an interim report and a final report on various issues related to MAID. The interim report tabled last June was on MAID and mental disorders, and it was dedicated to reviewing the task force report.

A government response followed in October. By that time, everybody was working hard to meet the requirement of March 17, and the government was hopeful that date would be met.

However, further witnesses heard by the committee led the committee to conclude in its final report, which was tabled on February 15, that we were not yet ready to move forward. That final report includes 23 recommendations, including one in relation to mental disorders. That recommendation is to agree with the government about postponing the date of March 17 and also proposes to re-establish a joint committee five months before the new exclusion date, which is March 2024, in order to verify the degree of preparedness attained for a safe and adequate application of MAID for mental disorders as a sole underlying condition. Again, that recommendation reflects a cautious approach.

However, there are also risks to not removing the exclusion in a timely way. The special joint committee noted in its report that the delay in eligibility under Bill C-39 may prolong the suffering of some individuals who are otherwise able to receive MAID. Senator Kutcher referred to that, and I believe most of you received emails from those people, urging us not to accept Bill C-39 and not delay further access to MAID.

Essentially, adults who meet the eligibility criteria for MAID — including irremediability, informed consent and intolerable suffering — currently face discrimination as a class when their condition is mental as compared to physical, or when compared to having both physical and mental conditions, when we don’t dispute their ability to consent to MAID.

In my view, Charter compliance very likely requires a MAID law that allows for a case-by-case analysis of eligibility based on individual facts, such as assessing capacity and past attempts at treatment. Such an approach will occur for cases of mental disorders once the sunset clause expires — now in March 2024.

Indeed, Parliament has considered MAID in the context of mental disorders for a long time. Senator Seidman and former Senators Cowan, Joyal, Ogilvie and Nancy Ruth served on another special joint committee on MAID in the Forty-second Parliament. In their 2016 report over seven years ago, recommendation 3 urged:

That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.

On legalities, let me refer to lawyer Shakir Rahim’s testimony to the special joint committee on October 4, 2022. He discussed MAID and mental disorders in relation to the 2020 Supreme Court decision of Ontario (Attorney General) v. G, a leading case on section 15 equality rights. During our third reading debate on Senator Kutcher’s amendment to Bill C-7 I referred to that decision of the Supreme Court regarding mental disorders. The special joint committee’s final report also refers to that decision.

As Mr. Rahim told the committee:

In my view, the recommendation of the expert panel on [medical assistance in dying where a mental disorder is the sole underlying medical condition] conforms to the spirit and letter of the section 15 jurisprudence. . . .

Senators, these conclusions show the necessity of having access to MAID for mental disorders.

[Translation]

However, it must be done in a way that ensures that there is no slippery slope and no mistakes that might contribute to opposition to this expansion. That’s why, honourable senators, I suggest that we pass Bill C-39, and I have a message for anyone who may be listening. This is not about opposing your right to MAID; it is simply a pause. Your right to medical assistance in dying is constitutionally recognized and will soon be available.

Thank you.

[English]

Senator Dalphond: You mean the amendments to the Pension Benefits Standards Act will apply to provincial pension funds?

Senator Wells: It would fall under the financial institutions rubric, and therefore it would be nationally covered.

Senator Dalphond: I have two questions. The first question is about the Pension Benefits Standards Act — the question was asked by Senator Marty Deacon. It applies only to federal pension funds. It doesn’t apply to most pension funds that are regulated by the provinces. Am I right or wrong?

Senator Wells: You’re wrong. I don’t want to say this again, but you’re wrong. It would apply to both federal and provincial pensions.

Senator Dalphond: I suppose that is an aspect the committee will look at because provincial pension funds are regulated by provincial regulators and not by the superintendent here in Ottawa. It is a constitutional issue, as a matter of fact.

My other question is about the scope of that bill. I certainly understand and share the goal of the bill to protect retirees. They have worked many years, and they come to retirement having managed their retirement based on the retirement benefits they expect to receive. If there is a reorganization of the company for which they were working, they may end up receiving a lesser amount. You referred to Sears and Nortel. Algoma Steel also went through that process, but were able to reorganize the pension funds and re-establish the pension benefits.

You referred to the fact that this will apply — if I understand properly — only to those who are entitled to defined pension benefits, and you said these now represent less than 10% of the retirees in Canada. I also understand this bill will not come into effect right away if it is adopted. It will come into effect in four years — further to an amendment that was adopted in the House of Commons — in order to give a transitional period to the employers who are providing pension benefits. Do you feel that at the end of the day the number of people who will benefit from that bill will be even less than 10% of the retirees?

Senator Wells: It could very well be less than 10%. I think it is important to note that the defined benefit pension plans right now are funded to about 109%. That’s not to say that all the different pension plans are overfunded. They are not. Some are obviously below. Over time, you are right — that will decrease.

The whole idea of the four years is for a getting-up-to-speed for those that have to ensure that their pension funds are funded. That four-year period is to allow that to happen so there is no deleterious effect if a company has to reach in and pull out from some source — from revenues or asset holdings — enough to top up their plans. That four-year period is to allow that, and, of course, an important part of the bill is to allow that to happen without deleterious financial penalty by placing sold or liquidated assets or other revenues into that plan. It would essentially allow them to do it without a tax penalty.

Hon. Pierre J. Dalphond: Would Senator Wells agree to take another question?

Senator Wells: Yes.

[English]

Senator Dalphond: To conclude on the last question, I understand that during that period this bill will not prevent an employer from, with the consent of the union, moving from a defined benefit pension to a defined contribution system with no defined benefits.

Senator Wells: This bill is silent on that. That would be up to the company and its pension holders, whether that’s the union, the employee association or just the general employee agreement that might be present.

Hon. Pierre J. Dalphond: Honourable senators, I am pleased to speak to Bill S-225, which is sponsored by Senator Ataullahjan. This bill amends a piece of legislation passed by Parliament in November 2014, the Prohibiting Cluster Munitions Act, which implements the Convention on Cluster Munitions. This convention was adopted on May 30, 2008, and entered into force on August 1, 2010. To date, 32 other countries have passed legislation to bring the convention into force and another 20 are working on it, while 83 others consider their legal framework to be sufficient.

As the name suggests, the convention covers cluster munitions, which are weapons designed to disperse or release explosive submunitions. If these submunitions end up unexploded on the ground, they can then kill or injure people in the same way as anti-personnel mines.

The convention has several objectives, including a ban on the production of cluster munitions unless they are equipped with self-destruction and self-deactivation mechanisms, the destruction of existing stockpiles, a ban on the export and import of such weapons, the clearance of contaminated sites, risk reduction education and victim assistance.

In her speech on April 7, Senator Ataullahjan appropriately reminded us of the devastating impact that cluster munitions have on innocent civilians who may come into contact with unexploded or deactivated submunitions. These victims are often children.

Last August, while the Senate was on summer break, the Cluster Munition Monitor released a report. I have it in my hands. It is published occasionally, with the previous edition dating back to 2018.

In this very recent report, which was published last summer, we read that since the advent of cluster munitions, 23,000 people have been killed or injured by these weapons. However, in reality, this number is much higher because not all cases are reported. According to the Cluster Munition Monitor, there could be between 56,500 and 86,500 victims who have been injured or killed.

In the summer of 2021, the Cluster Munition Monitor reported 59 people killed and 90 injured. All these people were victims of cluster munition remnants scattered in the ground. That is especially the case in Syria and in some other countries where these munitions have been used. Children accounted for 66% of these casualties.

In 2022, the situation has worsened. As of June 30, 2022, the Monitor reports that there were at least 689 casualties of cluster munitions, mostly in Ukraine.

[English]

To this day, 110 countries are party to the convention, including Canada. Unfortunately, however, 74 countries have not yet ratified the convention, including China, Russia and the United States — three members of the United Nations Security Council. However, among the states not party to the convention, Greece, Poland, Romania, Singapore, Turkey, Israel and the U.S. have said that there is no longer any production of cluster munitions in their respective territories. In addition, in April 2022 — a few months ago — EXPAL USA was awarded a contract by the U.S. government for the demilitarization and disposal of the stock of cluster munitions in the U.S.

But there are still countries that tolerate the production of such arms in their territories and their export. They need to be denounced and put on a shame list, particularly those producing the cluster munitions reported to have been used recently in Syria, Nagorno-Karabakh and Ukraine.

Among the countries still producing cluster munitions, some are welcoming foreign investments, such as South Korea, Brazil and India. The public denunciation of these countries must extend to Canadians or Canadian institutions, if any, that still invest in companies producing cluster munitions.

Speaking of South Korea, the president of which was here not long ago, the shareholders of Hanwha Corporation, one of the South Korean conglomerates, voted in September 2020 to end the company’s production of cluster munitions by shifting this activity to the Korea Defense Industry Corporation, a new, separate company that, unfortunately, seems to remain affiliated with Hanwha. This was described as an attempt by Hanwha to get rid of an unethical arms business. They still produce other types of arms but not those that are covered by the convention.

It is also interesting to note that the government pension funds in Australia, France, Ireland, Luxembourg, New Zealand, Norway and Sweden have decided by themselves to withdraw their investments — fully or partially — in companies or groups that are related to cluster munition production. Furthermore, many private financial institutions have acted to stop investment in cluster munition producers and to promote socially responsible investment in states parties to the convention such as Australia, Belgium, Canada, Denmark, France, Germany, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland and the U.K. Clearly, there is social responsibility being assumed by private financial institutions, and that’s good.

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That explains why several private companies based in non-signatory states have ceased production of cluster munitions. These companies include Elbit Systems Ltd. of Israel, Singapore Technologies Engineering, and U.S. companies Lockheed Martin, Orbital ATK and Textron Systems. So even if the U.S. is not a signatory to the conventions, U.S. companies are disengaging.

In terms of adoption of national laws to prevent such types of investments, it is fair to say that there is a controversy about the intent of the convention regarding investments. At least 38 countries, parties or signatories to the convention have stated that they regard investments in cluster munition production as a form of assistance prohibited by the convention. But some other countries who are party to the convention have expressed the contrary view, including Germany, Japan and Sweden.

The current Prohibiting Cluster Munitions Act, adopted by our Parliament in 2014, does not contain any provision relating to investment. Such is also the case for the Model Law Convention on Cluster Munitions, which was legislation for common law states proposed in 2008 by the International Committee of the Red Cross. However, the Lausanne Action Plan, adopted by states parties at the convention’s second review conference in September of last year, encourages the adoption of national legislation prohibiting investment in producers of cluster munitions.

Senator Ataullahjan’s legislation thus comes as a response to this action plan, and it is welcome. Bill S-225 proposes that Parliament make it an offence to acquire or have, directly or indirectly, any pecuniary interest in a person, knowing that such person is involved in the use, production, possession, development, transportation, importation or exportation of cluster munitions or to attempt to commit such an act. This prohibition would cover loaning funds or guaranteeing a loan of funds. Though we have no current data on the extent of Canadian investments in cluster munitions-related businesses, if any, I nevertheless see merit in Bill S-225. I think that it would send a strong message to Canadian investors and maybe also to other investors in foreign countries.

The bill proposes to use the criminal law power of the Canadian Parliament to enact a new offence that could lead to a conviction further to an indictment or a summary proceeding. But it is worth mentioning that in both cases, the proceedings could only be commenced with the consent in writing of the Attorney General of Canada. It is also notable that in both cases the federal prosecutor would have to prove beyond any reasonable doubt that the investor was aware that the investment was made in an entity involved in one or more of the activities targeted by the Prohibiting Cluster Munitions Act. It appears to me that a conviction under such a regime may be rare, but I leave it to the committee process to assess the proposed regime.

Incidentally, by adopting a statutory ban against such investments, Canada would become the twelfth country since 2007 to enact legislation designed to prohibit investments related to cluster munitions. The last country to do so was Italy in December 2021. The Italian law is titled Measures to ban the funding of manufacturers of anti-personnel mines, cluster munitions and submunitions. That law prohibits the financing of businesses engaged in the manufacture, production, development, exporting, stockpiling, et cetera, of cluster munitions and submunitions, as well as anti-personnel mines — a category of arms not included in the proposed bill before us. Perhaps this is another issue that the committee could look at.

Furthermore, the Italian Parliament has opted for a regulatory scheme under the authority of the Bank of Italy and some other regulatory agencies instead of creating a new crime. The Italian law empowers regulatory agencies to instruct registered Italian financial intermediaries to ensure compliance. Failure to comply exposes these intermediaries to a substantial administrative fine ranging between €150,000 to €1,500,000.

The committee called to review Bill S-225 could also consider the model law developed by the Cluster Munition Coalition in conjunction with Human Rights Watch and Harvard Law School’s International Human Rights Clinic. It draws heavily on their report Staying Strong: Key Components and Positive Precedent for Convention on Cluster Munitions Legislation. This model law, for example, adopts a slightly different definition of what is prohibited, which we could find useful for comparison and possible amendment of the bill.

[Translation]

In closing, as Senator Coyle did recently, I invite you to complete second reading of this bill and send it to committee for study and report.

Thank you. Tshinashkumitin.

[English]

Senator Dalphond: Yes, I will be careful not to try to give an answer to colleagues that are still doing the work.

The first and most critical element will be the content of the regulations to be adopted by the minister or the government because they will provide some indicators — like taking notes and having a record of what was done in what type of circumstances — because what the courts will not accept is a process which is not reviewable by the court.

The word “reasonable,” within the rest of the sentence, normally refers to something that is an objective criterion. The court, in order to find if this objective criterion has been met, will have to get a record that shows, for example, how it was applied, what the questions were, whether the device was disconnected from the cloud — because you are entitled to search only the device, not outside the device — and whether there are notes taken because the officer may not remember because perhaps he has done hundreds since then. All factors that are critical will be found, unfortunately, not in the law, but in the regulations because the concept is undefined in the law. As I said, it will have to be fleshed out by the courts, and the courts will be careful to balance all the interests at stake.

You may end up with criteria that are a bit lower than reasonable suspicion but maybe not far from it.

Hon. Pierre J. Dalphond: Honourable senators, as said by Senators Boniface, Simons and Wells, the constitutional question that Bill S-7 attempts to answer is the balancing of two competing values.

On one hand, it is widely acknowledged that officers at the border, in dealing with travellers coming into Canada, are entitled to ask questions, to inspect goods, including personal belongings, and to detain and search persons in order to ensure compliance with the Customs Act and related laws, all in order to protect our country. In fact, officers at the border are often entitled to act in ways that would not be acceptable for police officers dealing with citizens within the country.

On the other hand, there is the ever-increasing recognition by the courts of the informational privacy inherent in a personal digital device. The Supreme Court has stated that cellphones, like computers, implicate important privacy interests that are different in both nature and extent from the search of other places. The high courts added that it is unrealistic to equate a cellphone or a computer with a brief case, even if they all store material.

As stated in the recent Ontario Superior Court judgment, the core biographical information to be gleaned from a personal digital device can be used to construct an extraordinary, intricately detailed profile of the owner of the device. Judge Harris wrote:

A personal digital device mirrors who we are. It is the manifestation of both our external and internal life.

The intrusion of the state into informational privacy through investigation of digital media has the potential to extend well beyond anything George Orwell could possibly have imagined.

Within Canada, to perform a legal search, police officers have to meet one of two thresholds depending on the context: reasonable grounds to believe that a crime has been committed or is in progress, or a reasonable suspicion that such is the case. Both thresholds are reviewable by courts pursuant to an objective analysis, and not according to the subjective state of the mind of the police officer. Case law has established that the highest threshold is reasonable grounds to believe. I am not suggesting that it shall apply to customs operations, except maybe for an intrusive body search.

As for reasonable suspicion, it is defined by the Supreme Court as meaning the following:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

The fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify a search, the suspicion must be supported by the factual elements, which can be adduced in evidence and permit an independent judicial assessment.

As said by the Supreme Court in 1996, in the context of section 99(1)(f) of the Customs Act, a hunch based on intuition gained by experience cannot suffice as reasonable suspicion.

Before the courts of Alberta and Ontario, representatives of the border agency have testified that to apply the lowest threshold, reasonable suspicion, would seriously impede their operations, and I suspect this is the reason why the bill proposes a new threshold called “reasonable general concern,” intended to be defined by courts as being lower than reasonable suspicion.

In the Ontario judgment, the judge seems to be unconvinced by the border agency’s resistance to a threshold. He wrote:

In my view, skepticism is the appropriate reaction to an assertion by law enforcement that a search threshold will stymie investigations. Naturally, law enforcement officials would prefer not to have legislative obstacles regulating their ability to search. They would be more effective and productive without them. But there would be a cost to individual rights and to liberty.

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Colleagues, I believe we need a threshold. However, if Parliament decides to enact the proposed new threshold, we have to realize that it is an unknown concept to the law, and that the court will have to flesh out its contents considering the content of the binding regulations — which we don’t know yet, but have been promised after the bill is adopted.

On the whole, in order to meet the constitutional requirements under section 8 of the Charter, nobody can predict the end result of this process, but it is fair to say it’s going to take years, including judgments from Courts of Appeal and the Supreme Court of Canada. In the meantime, there will likely be criminal charges arising from the search of digital devices dropped or dismissed.

Of course, the use, instead, of the reasonable suspicion test will not bring such uncertainty. This is another area that should be studied by the committee, including the pros and the cons of having new tests in connection with documents found on digital devices rather than applying an existing test — reasonable suspicion — which is used for documents in the mail.

The studying committee should look at the existence — or not — of equivalent thresholds in other democratic societies. In the U.S., the use of an applicable threshold is a complete mess, controversial and subject to conflicting case law.

Moreover, considering this bill is a response to the Court’s decisions concluding in the unconstitutionality of the current regime if applied to a device, the committee shall hear evidence from legal experts about the ability of the proposed threshold to survive legal challenges that are promised to come.

Finally, this bill proposes that the new concept be applicable to the U.S. pre-clearance areas located in eight Canadian airports. However, in the United States, this concept does not exist. Moreover, as I said, the issue of access to personal devices is currently quite controversial and unsettled in the U.S. This means that if you go to the U.S. by car instead of flying from an airport, where there is a U.S. pre-clearance, you will most likely be subject to a different threshold. However, I am content to see that the Canadian Charter of Rights and Freedoms will be fully applicable across Canada, including in U.S. pre-clearance areas.

[Translation]

In conclusion, like Senators Simons and Wells, I believe that this bill raises some fundamental issues of constitutional law that will need to be thoroughly studied in committee.

I also believe that it would be preferable to have a committee study it soon, in order to put to an end, in the months to come, to the two different regimes that currently exist in Canada for the inspection and seizure of documents found on digital devices, that is, the regime that applies in Ontario and Alberta and the one that applies in the rest of Canada.

Thank you very much. Meegwetch.

[English]

Senator Dalphond: With pleasure.

Hon. Pierre J. Dalphond: Would Senator Tannas take another question?

[English]

Senator Dalphond: Thank you for those very important comments, senator. You raised a fundamental question about the role of the Senate.

I would like to hear your thoughts on two subjects.

First of all, isn’t there a distinction to be made between carefully reviewing legislation, even legislation unanimously passed by the House of Commons, and respecting the House of Commons when it responds to our proposed amendments? Should the fact that a bill passed unanimously be a determining factor at the outset, when we are considering it? I’m not sure. When the other place sends back its responses to our proposals, showing deference to the elected chamber is important.

My second point is this: Shouldn’t we direct our comments not only to the government, but also sometimes to the opposition in the Senate who, in the case of the conversion therapy bill, for example, ensured that the bill passed without this chamber having a real debate at second or third reading, or even a pre‑study of the bill?

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That bill was passed in just one afternoon, without any real debate or analysis. We failed to fulfill our constitutional duty, but I don’t think we could blame the government that time.

[English]

Hon. Pierre J. Dalphond: Honourable senators, I rise today to take part in the debate initiated last week by our colleagues Senators Boisvenu and Moncion on Bill S-206, which proposes an exception to the criminal offence committed by jurors who fail to meet their obligation to keep the jury’s deliberations secret.

I would like to begin by discussing the importance of trial by jury in criminal law. The principle whereby serious charges must be decided by members of the community dates back to ancient Greece. In Athens, a person could only be sentenced to death or exiled from the city following an assembly held before more than 1,000 citizens, who were then called upon to vote by placing a token in an urn. They would cast either a token with a hole in it or one without, depending on whether they thought the accused was guilty or not.

Rome had a similar institution. In England, the role and composition of the jury evolved over the centuries. The concept of a jury composed of 12 people and led by a judge was imported from England as soon as Canada became a British colony.

The jury system thus existed long before Confederation in 1867. The first Criminal Code of Canada, adopted in 1892, codified the various criminal laws and practices and, of course, recognized the right to trial by jury for the most serious charges. It even decreed, in certain cases, the obligation of holding a trial by jury.

In a 1980 report entitled The Jury in Criminal Trials, the Law Reform Commission of Canada, a commission many of us would like to see reconstituted, recommended maintaining the jury system, which it described as, and I quote, “. . . a fundamental institution, a veritable ‘rock of ages’ in our system of criminal justice in Canada.”

The commission looked at studies and investigations and concluded that juries have a good understanding of the cases before them, even when these cases are complex, and that a jury is a good way of infusing community values into a trial, to ensure that the enforcement of laws is just in certain cases. Take, for example, the decisions of four different juries in the cases associated with Morgentaler that led to the legalization of abortion in Canada.

It should come as no surprise that, in 1982, the constituents chose to include, in section 11 of the Canadian Charter of Rights and Freedoms, the right to trial by a jury when the maximum penalty is at least five years.

[English]

Honourable senators, in practice the majority of criminal cases in Canada are tried by one judge alone, mostly a provincial judge. However, trial by a judge of a superior court and a jury is a right of the accused for the most severe criminal offences. The accused in those cases may opt out of a trial by judge and jury and choose to be judged by a judge alone — an election done most of the time for various reasons.

Moreover, jury trials are mandatory for offences mentioned in section 469 of the Criminal Code, which include murder, conspiracy to commit murder, treason, intimidating Parliament or a legislature and other offences. Unless both the Attorney General and the accused consent, the trial must be one with a jury.

To those listening to us today, I would like to say that jury service is a critical component of our judicial system. If one day you are summoned to attend the courthouse for jury selection, please seriously consider this important public service.

The task might appear daunting and you may initially be unhappy or reluctant about being summoned for jury service, but please consider that, according to research conducted in 2016 by Professor Cheryl Thomas from the School of Judicial Studies at University College in London, U.K., the overwhelming majority of persons who served on a jury found jury service to be a positive, not negative, experience.

When she appeared before the House of Commons Justice and Human Rights Committee in the course of its study on the jury system on February 8, 2018, Professor Thomas further explained:

When asked to describe their experience of jury service, the highest results were for such positive descriptions as educational, interesting, and informative. The lowest results were for such negative descriptions as depressing, confusing, boring, and worrying. Only a minority said that the experience was stressful.

Furthermore, her research shows that 81% of those who served on the jury said they would be happy to serve again if summoned.

[Translation]

I now want to talk about section 649 of the Criminal Code, which this bill would amend.

The 12 people selected to preside over the fate of the accused — or 6 people, in Yukon and the Northwest Territories — are placed into an unfamiliar system, and when they are presented with the evidence, they are often presented with a real human tragedy. Once everything has been said, including the lawyers’ arguments, these individuals are sequestered to deliberate the fate of the accused. These discussions are held behind closed doors and can sometimes last several days. At the end of the process, a guilty verdict can only be reached if the 12 members of the jury arrive at a unanimous decision.

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Pursuant to section 649 of the Criminal Code, enacted in 1972, what is said in camera must be kept secret, under punishment on summary conviction, which may lead to a term of imprisonment of up to two years less a day or a fine of not more than $5,000, or both. However, everything presented to the jurors in open court is public and can be discussed with a health care professional.

Commenting on the secrecy rule for jury deliberations, the Supreme Court of Canada had this to say in 2001 in R v. Pan:

The common law rule of jury secrecy, which prohibits the court from receiving evidence of jury deliberations for the purpose of impeaching a verdict, similarly reflects a desire to preserve the secrecy of the jury deliberation process and to shield the jury from outside influences.

As for the main policy consideration raised to justify maintaining the secrecy of jury deliberations, the Supreme Court gives the following explanation:

 . . . confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. . . . This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime.

Our colleagues, Senators Boisvenu and Moncion, have proposed adding an exception to the prohibition that would allow jurors to discuss the entirety of their experience during a trial, including the deliberations with their 11 colleagues, with a health care professional, and only a health care professional, a person bound by professional secrecy.

I fully support this proposal, which is based on one of the recommendations issued by the House of Commons Standing Committee on Justice and Human Rights in its unanimous May 22, 2018, report entitled Improving Support for Jurors in Canada.

I would add that an identical bill introduced by MP Michael Cooper was passed by the House of Commons but did not make it to the Senate until April 2019, where it died on the Order Paper.

I’ll turn now to support available to jurors once they have completed their assignment. As I indicated earlier, the right to a jury trial exists only for the most serious offences, including crimes against the person, such as sexual assault, serious injury and murder.

Our colleagues emphasized the fact that jurors can be traumatized by the pieces of evidence in these cases, which may be — in fact, almost always are — gruesome. That’s undeniable. I myself, as an appeal court judge, had to handle hundreds of criminal cases. The facts in some of those cases were so disturbing that I will never forget them.

I recall in particular the case of a 6-year-old child who was tortured and killed by his father’s new partner while the father was away for two weeks. The autopsy report, the photographs, the paramedics’ reports and some of the testimony was so shocking that I had to take breaks while reading the file. I experienced moments of horror, and I cried several times.

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I completely understand that trauma may result from being exposed to days of disturbing evidence.

Many of you will remember the 1995 jury trial presided over by Justice Patrick LeSage of the Ontario Superior Court, which led to a sentence of life imprisonment for a man convicted of the kidnapping, torture and murder of teenagers in St. Catharines, Ontario.

In 2016, then-retired Justice LeSage said in an interview:

I had been a judge for many years by the time that trial had started, but I still find it disturbing, so I thought many others who haven’t had the experience that I’ve had will find it disturbing.

He added that he sought counselling after the case and believes that it should be an option for all jurors. As a matter of fact, in that trial he ordered the Province of Ontario to provide such assistance to the jurors.

Under our constitution, the provinces are responsible for the administration of justice, including criminal justice, while Parliament has exclusive jurisdiction on criminal law, including criminal procedure. The constitution of lists of potential jurors and their compensation fall under the jurisdiction of the provinces.

While serving on a jury, jurors are entitled to financial compensation and lodging when sequestered. These measures vary from province to province. For example, in New Brunswick, jurors are compensated at the rate of $40 a day. In Quebec, it is $103 per day.

The issue of post-trial support for jurors also falls within the provincial jurisdiction. Here again there are variations across Canada. For example, in Ontario, jurors can receive up to four one-hour counselling sessions for free after they complete jury duty through the Juror Support Program. In Quebec, regulations allow the presiding judge to order access to psychological support for up to six consultations at the rate of $65 per hour. In each province, things vary. Maybe the time has come to get a national scheme or program to bring some uniformity to the support offered to jurors.

In conclusion, I invite you, colleagues, to support this bill and send it to the legal committee before we adjourn for the winter break. It does not address all the challenges jurors face post trial, but it will remove one barrier of access to proper professional assistance when needed. Thank you. Meegwetch.