Hon. Pierre J. Dalphond: Thank you, Senator Cotter, for your very interesting speech.

I read the bill carefully in preparation for your speech. You said one word that struck me. You said that it was a framework to move forward toward something. I also noted that the legislation is scheduled to come into force no more than 12 months after the bill is passed. I noted that the government must report on the consultations six months after the legislation comes into force and that the government must table a report on the proposed regulations in both chambers within one year of the legislation coming into force. That already means a delay of perhaps two years.

In the briefings you had with the department, was there any discussion of a realistic time frame for the first cheques or benefits to reach recipients? I suspect there could be an election within the next two years.

[English]

Senator Cotter: In one respect, if I may say, Senator Dalphond, the occurrence of an election will be rendered somewhat irrelevant, because the framework will be in place and the department will carry on putting the program together. I hate to use a golf analogy, but I’m a 30 handicap at predicting elections, so I’m happy that it’s off to the side.

The message I keep hearing, which is informal and nobody is prepared to make an absolute commitment, is that it will be possible to do the negotiations and put the regulations in place in 12 months, hopefully. Once that happens, I think benefits can begin to flow.

There will be an application process as the bill is presently constructed, so it does mean that people will have to apply. However, the language people talk about is a 12-month period, and I hope that’s correct; I hope that’s the longest it is.

Senator Downe is right that we have an important job to do. We need to do it in as timely a way as possible, because my feeling is that each month that goes by pushes the time by a month, and that means tens of thousands of Canadians remain in poverty for one more month. It’s really important for them for us to do the best we can do.

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

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

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

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

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

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

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

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

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

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

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

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[Translation]

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

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

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

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

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

[English]

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

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

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

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

[Translation]

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

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

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

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

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

[English]

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

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

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

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

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

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

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

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

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

(1520)

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

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

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

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

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

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

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

[Translation]

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

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

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

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

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

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

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

[English]

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

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

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

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

(1530)

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

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

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

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

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

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

[Translation]

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

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

[English]

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

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

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

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

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

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

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

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

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

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

Finally, I will speak about consultation.

[Translation]

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

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

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

(1540)

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

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

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

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

[English]

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

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

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

Hon. Pierre J. Dalphond: Honourable senators, I see that this item is at day 15. Therefore, with leave of the Senate, I ask that consideration of this item be postponed until the next sitting of the Senate.

Hon. Pierre J. Dalphond moved second reading of Bill S-256, An Act to amend the Canada Post Corporation Act (seizure) and to make related amendments to other Acts.

He said: Honourable senators, today, I’m pleased to begin the second reading of Bill S-256, the Canadian Postal Safety Act.

My bill is rather short with only eight clauses, only one of which is of substance. The others are ancillary amendments to the first clause.

The amendment of substance proposes to amend subsection 40(3) of the Canada Post Corporation Act, which sets out the following principle, and I quote:

Despite any other Act or law, nothing in the course of post is liable to demand, seizure, detention or retention, except as subject to this Act and its regulations . . . .

This principle dates back to 1867 with the passage of the Post Office Act. At that time, it was inconceivable to interfere with the operations of the Royal Mail or to read the content of letters one was tasked with delivering. In short, the objective of this law was to protect privacy.

For quite some time, only a postal inspector could detain an item, for instance if it wasn’t sufficiently stamped for the class of mail or if it contained items that were illegal to send by post. It would be more than 100 years before any exceptions to the principle of prohibiting interference with mail items were adopted. This was done through the passage of the Canadian Security Intelligence Service Act in 1984, an amendment to the Customs Act in 1986 and the passage of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act in 2000.

Under the amendment to the Customs Act, a shipment entering Canada may be subject to inspection by border services officers if they have reason to suspect that its contents are prohibited from being imported into Canada. If this is the case, the shipment, whether a package or an envelope, may be seized. However, an envelope mailed in Canada to someone who resides at a Canadian address cannot be opened by the police or even by a postal inspector. Paragraph 41(1)(c) of the Canada Post Corporation Act states the following, and I quote:

The Corporation may open any mail, other than a letter, to determine in any particular case . . .

The Letter Definition Regulations state that a letter is a mailed item that does not exceed 500 grams. However, postal inspectors may open a parcel if they believe it contains something that is prohibited under legislation that applies to the post. If it is, the item is confiscated and turned over to police.

I will conclude my introduction by saying that Canada Post handles billions of items per year. In 2020, Canada Post delivered 6.4 billion items, of which 2.5 billion were letters, 384 million were parcels and the remainder was advertising.

That is the current situation in Canada.

[English]

To summarize, nothing in the course of the post in Canada is liable to demand, seizure, detention or retention, except if a specific legal exception exists in the Canada Post Corporation Act or in one of the three laws I referenced. However, items in the mail can be inspected by a postal inspector, but if it is a letter, the inspector cannot open it to complete the inspection.

Thus, a police officer who has reasonable grounds to suspect that an item in the mail contains an illegal drug or a handgun cannot be authorized, pursuant to a warrant issued by a judge, to intercept and seize an item until it is delivered to the addressee or returned to the sender. I am told that letters containing drugs have no return address.

While an item is in the mail, the only option the police have is to work closely with 1 of the 25 inspectors at Canada Post — 25 to cover the whole country. An inspector could then find a way to inspect a parcel and retain it if illegal material is found inside. Subsequently, based on the information communicated by the inspector, the police could seize the item for further investigation and possibly to lay a charge. It is important to remember that if the illegal object — for example, a packet of fentanyl — is in a letter weighing less than 500 grams, it cannot be opened by the postal inspectors. The most they can do, if they identify such a letter, is to remove it from the course of post as non-mailable matter and call the police.

(1610)

By the way, colleagues, 500 grams of fentanyl currently has a street value of $30,000.

Incidentally, in 2020, postal inspectors inspected approximately 3,287 items, with 3,067 found to contain non‑mailable matter. During that same year, as I said a few minutes ago, Canada Post handled 6.4 billion items. Of these, 384 million were parcels that could be inspected, including being opened, and 2.5 billion items were letter mail, which cannot be opened; the rest were direct marketing materials and advertising.

This context is, unfortunately, well known by criminals, including drug distributors.

In 2019, Maclean’s reported that the Canada Post system is exploited by drug traffickers in an article entitled, “For fentanyl importers, Canada Post is the shipping method of choice.” That article outlines that on the dark web, an anonymous online marketplace for illegal drugs and other contraband, Canada Post appears to be traffickers’ preferred shipping method for Canadian orders.

Mike Serr, chief of the Abbotsford Police Department and co‑chair of the Canadian Association of Chiefs of Police Drug Advisory Committee said in 2019:

The word is out there that you don’t use the courier service, you use Canada Post because of the limitations to law enforcement.

In the same Maclean’s report, an anonymously quoted man from London, Ontario, who had ordered fentanyl, heroin and other drugs online from the dark web said:

Some will also offer private courier services at really high prices, but almost always offer Canada Post as the base option. Sending through Canada Post can never be a 100 per cent surefire way to beat the cops, but it works 99.9999999 per cent of the time.

A Canada Post carrier told Maclean’s that the postal system moves too quickly for due diligence:

You don’t have time to be discerning as to what you’re actually delivering and handling. You’re going to throw it in there, get into your truck and get out there as fast as you possibly can.

One carrier told Maclean’s:

As an employee, you’re going, ‘Jeez, I didn’t sign up for this.’ I signed up to be a mailman, to deliver Christmas cards. Not fentanyl.

To complicate the matter further, in a recent judgment from the Supreme Court in Newfoundland and Labrador called Her Majesty the Queen v. Christopher Gorman, the judge concluded that the power of the inspector to seize a parcel was unconstitutional, being too broad. The judge granted the Attorney General of Canada one year to fix the problem, until April 12 next year. This judgment was not appealed.

My bill is an attempt to put an end to the perception that our postal service is the best way to ship illegal drugs and other illegal materials.

The Canadian postal safety act’s purpose is to assist law enforcement, Indigenous communities and rural municipalities in their efforts to intercept dangerous drugs, particularly fentanyl and other opioids, that could be delivered by the mail system, especially in remote areas.

As such, this bill will facilitate police operations and should reduce harms in Canada, assisting efforts toward this goal of Canada Post inspectors and customs officers.

Rest assured that, under this bill, any detention or search of parcels or letter-sized items in the mail would be subject to the same judicial authorization already required by law in situations for such items while outside the course of post, such as a search warrant.

The aim of this bill is not to weaken or change requirements for searches and seizures, but rather to remove an old statutory limit that prevents police from fully assisting Canada Post inspectors and customs officers in enforcing the law.

Canadians’ expectation of privacy in the mail will not be reduced by Bill S-256, although there will no longer be a legal barrier to appropriate authorization of police searches and seizures while an item is in the course of post.

This legislation will simply grant police the same powers for Canada Post mail that police currently have in relation to items shipped by private courier services such as FedEx, UPS or DHL. Incidentally, such powers already apply to Purolator, a courier company 91% owned by Canada Post.

To sum up, section 40(3) of the Canada Post Corporation Act, as drafted now, prevents law enforcement from detaining and seizing items in the course of post. For example, although police may have reasonable grounds to believe that a package of fentanyl or a prohibited weapon is being sent through the mail, the police cannot lawfully detain the item until it has been delivered to the addressee or until a postal inspector has intercepted it independently of the police investigation.

This framework places an unnecessary operational and logistical burden on the police in doing their job and bringing drug traffickers to justice, costing valuable time and resources, including for surveillance, and risking exposure of investigations and missed opportunities.

The current framework also seems to preclude the possibility that some mail should be situationally delayed to identify and remove contraband, such as if a package of fentanyl is dropped in a red postbox and the item risks becoming unidentifiable if mixed with other mail.

As the law stands now, the police cannot go to the red box where somebody has dropped 20 letters and try to seize these letters. They have to call an inspector, and if they are lucky enough and the inspector comes along with a little truck when they empty the mailbox, they can inspect the thing. With judicial authorizations they will be able to seize the letters in that mailbox before they go to the little truck, the distribution centre and sorting centres where billions of items are processed. And, of course, the letter is difficult to retrieve.

Parliament’s past actions do suggest that the ability to open letter-sized items, where authorized by law, may be important in intercepting fentanyl. In 2017, Parliament passed Bill C-37 to allow customs officers to open mail weighing less than 30 grams, due to the problem of fentanyl imports. Parliament effected this change by repealing section 99(2) of the Customs Act. At the time, it was said in reply to the Minister of Health, the Honourable Jane Philpott:

My Conservative colleagues have been pushing the government to finally acknowledge the flaws at our borders and grant officers the authority to search and seize suspicious packages weighing less than 30 grams. . . . Removing the “30 grams or less” exemption from the Customs Act is a much-needed step in combatting the opioid crisis facing our country.

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Senators, why should the same not be true of Canada Post mail? The change proposed by my bill will be further progress along the lines of Bill C-37, allowing police to detain and search letter-sized items with judicial authorization where sufficient grounds are present to believe that they contain fentanyl or other contraband.

To address this enforcement loophole — I call it a loophole — in the Canada Post Corporation Act, I propose to amend section 40(3) of the statute to read:

. . . nothing in the course of post is liable to demand, seizure, detention or retention, except as subject to this Act and its regulations or an enforcement statute.

In Bill S-256, the term “enforcement statute” means any act of Parliament, any law of a province or territory, or any law of an Indigenous jurisdiction. My intent is an approach of cooperative federalism and reconciliation. Essentially, an illegal item present in the mail will no longer be a barrier to law enforcement for any jurisdiction, while still requiring the same judicial or other authorization necessary for search or seizure in other situations, such as a search warrant.

On this point, it is an important step for any federal statute and our postal system to respect Indigenous jurisdiction, including self-determination to prohibit or limit the importation of certain products into the nations’ territory, provided this is done in a lawful way. This bill aims to facilitate Indigenous and other police forces to enforce Indigenous laws as the federal government works to support Indigenous policing and self‑government. At the same time, Bill S-256 does not impose any policy on any Indigenous nation but rather upholds their jurisdiction.

I am encouraged and honoured that the Assembly of Manitoba Chiefs, or AMC, has supported the goals of this legislation through a resolution adopted at their annual general assembly on October 25-27 of this year. This followed a review of a preliminary draft of the bill as part of my consultations. The AMC represents 62 First Nations across Manitoba. Their resolution reads in part:

WHEREAS, a statutory limitation currently exists whereby police are unable to search packages sent through Canada Post . . .

WHEREAS, legislation is being proposed to the Canada Post Corporation Act that would allow jurisdiction for police forces to search mail in the possession of Canada Post, if duly authorized with a search warrant, for the purpose of seizing contraband . . .

WHEREAS, opioids, firearms, illegal alcohol, and counterfeit items . . . are being sent through mail carriers and are an ongoing issue for First Nations in particularly in northern and isolated First Nations.

THEREFORE BE IT RESOLVED, that the AMC Chiefs-in-Assembly calls upon the federal government to amend existing legislation or create a new law . . . . ensuring law enforcement’s ability to search and seize mail through Canada Post . . .

BE IT FURTHER RESOLVED, that any federal legislation to prevent contraband from entering First Nations should also provide First Nations police forces with the same powers as their federal, provincial, and municipal counterparts . . . .

Thank you to Senator McCallum for her help and her leadership in this project. She facilitated the adoption of these resolutions, and I am grateful to her.

This past January, the Winnipeg Free Press reported on a death where drugs sent through the mail are believed to have been a contributing factor. This incident occurred in the Sayisi Dene First Nation, the northernmost First Nation in Manitoba. Chief Evan Yassie said in that news report, “Drugs were involved, drugs are involved, and it’s coming in steady through the mail.”

In June of 2021, the Health Canada Expert Task Force on Substance Use released its second report, regarding recommendations on the federal government’s drug policy. One recommendation reads:

Define the role of enforcement as a means to clearly support the aims of the public health framework and legal regulation by focussing on criminal organisations and the illegal toxic drug supply.

Colleagues, Bill S-256 is consistent with this recommendation, as enforcement actions against illegal drug supplies and traffickers, including organized crime groups, are complementary to harm reduction approaches on this public health matter.

In advancing the Canadian postal safety act, I’m happy to be working with Member of Parliament and prospective House of Commons sponsor Ron McKinnon, representing Coquitlam—Port Coquitlam in B.C. From Mr. MacKinnon:

The Canadian Postal Safety Act is one more important tool in the harm reduction tool kit which will help get poisonous drugs off our streets. Too many of us have lost friends or family because of the toxic drug crisis. This bill is an important move that will disrupt criminals and save lives.

Mr. McKinnon previously authored the Good Samaritan Drug Overdose Act. This was also a private member’s bill, Bill C-224, passed unanimously in 2017, to provide a legal exemption from possession charges or violations of related conditions for persons calling 911 to seek help for an overdose, as well as those at the scene. On May 4 this year, the fifth anniversary of that bill passing, Senator Gold told this chamber that the government will be pleased to work with parliamentarians on potentially expanding the Good Samaritan exemption such as to other non-violent offences.

I am also honoured to be working to close the Canada Post loophole with some members of the Canadian Association of Chiefs of Police’s Drug Advisory Committee. Canadian police chiefs have been pushing for the change in the Canada Post Corporation Act for years.

Bill S-256 is a response to their call. A resolution adopted in 2015, already seven years ago, calling for police authority to seize illicit drugs, weapons and counterfeit items from the mail where authorized by law. That resolution reads in part:

. . . BE IT RESOLVED that the Canadian Association of Chiefs of Police requests the Government of Canada to amend the Canada Post Corporation Act to provide police, for the purpose of intercepting contraband, with the ability to obtain judicial authorization to seize, detain or retain parcels or letters while they are in the course of mail and under Canada Post’s control.

This was seven years ago. Unfortunately, so far there has been no response from the government to their call.

Chief Mike Serr, co-chair of the Canadian Association of Chiefs of Police Drug Advisory Committee, and to whom I referred previously, said about my bill:

The legislation responds to the CACP’s 2015 Resolution #08 which calls for police authority to seize illicit drugs, weapons, and counterfeit items from the mail, where authorized by law. The CACP Drug Advisory Committee supports legislative changes that provide tools for law enforcement to keep communities safe.

In advancing this bill, I wish to thank particularly Rachel Huntsman, who was in the gallery previously today, also from Newfoundland and Labrador, and Member of the Law Amendments Committee of the Canadian Association of Chiefs of Police, or CACP. Her knowledge, advice and passion have been critically important to launching and shaping this bill. We have been working on this bill together for two years, along with Canada Post, the police chiefs and a lot of other people. I want to thank the Progressive Senate Group for providing research funds to finance this work.

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Colleagues, the question with this bill becomes, “What are we waiting for?” I hope a Senate committee will hear from witnesses on this point and, if they reach the same conclusion as I have, that Parliament would proceed to close this loophole as soon as possible.

In conclusion, with Bill S-256, the “Canadian Postal Safety Act,” I think we are creating one more tool — an effective tool — to enforce the law and reduce the illicit distribution of fentanyl and other drugs through the mail. I hope that, as a chamber, we will make a difference and adopt this bill on second reading and send it to committee as soon as possible. Thank you, meegwetch.

Hon. Pierre J. Dalphond moved second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).

He said: Honourable senators, today, I have the honour to commence second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).

This bill was introduced in the House of Commons on February 7, 2022, by Anju Dhillon, the member for Dorval—Lachine—LaSalle and a family and criminal lawyer, in cooperation with Pam Damoff, the member for Oakville-North—Burlington and Parliamentary Secretary to the Minister of Public Safety, and with Ya’ara Saks, the member for York Centre and Parliamentary Secretary to the Minister of Families, Children and Social Development.

It was changed slightly by the Standing Committee on the Status of Women and then unanimously passed by 326 MPs on June 1. Unfortunately, this bill arrived in the Senate when we were working exclusively on government bills.

Although it consists of only four provisions, including one on the coming into force of the act, Bill C-233 proposes two measures that should help reduce incidents of violence, including femicide, against women who want to end a toxic relationship.

[English]

First, Bill C-233 proposes to amend the Criminal Code where an accused is charged with an offence against an intimate partner. Before making a release order, this change would require a justice to consider whether it is desirable — regarding the safety and security of any person — to include that the accused wear an electronic monitoring device as a condition of the bail order.

Second, Bill C-233 proposes to amend the Judges Act to signal to the Canadian Judicial Council the importance of continuing education seminars for judges on matters related to intimate partner violence and coercive control in intimate partner and family relationships.

I will start with the two proposed amendments to the Judges Act.

Those of you who were here in 2017, 2018 and 2019 remember the failed attempts in this chamber to reach a final vote on Bill C-337 introduced by the former leader of the Conservative Party, the Honourable Rona Ambrose. That bill aimed to improve judges’ knowledge relating to sexual assault law and social context by inviting the Canadian Judicial Council to establish seminars on these issues.

In September 2020, the government introduced a bill to the same effect, Bill C-3, that included social context, systemic racism and systemic discrimination. That bill was adopted by the Senate and became law on May 6, 2021.

Bill C-233 proposes that the Canadian Judicial Council be invited to offer seminars to judges on the following subjects: intimate partner violence and coercive control in intimate partner and family relationships.

Thus paragraph 60(2)(b) of the Judges Act would read that, “In furtherance of its objects, the Council may”:

. . . establish seminars for the continuing education of judges, including seminars on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination . . . .

With this proposed change, Parliament will signal to the Canadian Judicial Council and to judges the high importance that our society places on intimate partner violence and coercive control.

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Notably, Parliament would signal the necessity of protecting all family members from becoming the victims of the father exercising coercive control. In addition, Parliament will invite the Canadian Judicial Council to provide information on its annual reports on seminars offered on all the matters indicated in paragraph 60(2)(b), which I just read.

This part of Bill C-233 is described as “Keira’s Law,” in memory of Keira Kagan, a four-year-old girl killed in Milton, Ontario, by her violent father in what was likely a murder-suicide in February 2020.

Despite serious allegations by the mother that the father was a violent husband, the Ontario Superior Court of Justice granted him access rights. In fact, it seems that the judges tasked in 2018 and 2019 with deciding on access rights had assumed that the violence manifested by the husband against his wife did not mean that he could not be a good father and that he should, therefore, be denied access rights to their daughter, Keira.

Since this tragic event, the mother, Dr. Jennifer Kagan-Viater, and her spouse, Philip Viater, a lawyer who practises family law, have been working relentlessly to ensure other families do not suffer the pain of losing a child killed by a violent parent. Among the measures they seek is more training for all those involved in family law cases, including judges, about the importance of considering indicia of violence before deciding matters of custody and access rights.

Those proposed additions to the Judges Act will encourage the Canadian Judicial Council to continue and even expand its efforts to train judges on intimate partner violence and controlling spouses.

In the last two years, the Canadian Judicial Council has authorized numerous conferences, seminars and tools for judges, all provided by the National Judicial Institute. Those initiatives are funded by public money. The annual budget of the council exceeds $30 million, including over $6 million for education and assistance tools for judges.

As you might remember, in the 2019 budget, Parliament authorized the government to increase the amount allocated to judicial education by $5 million over the following 10 years.

Let me give you some examples of the programs currently offered.

One is a mandatory 10-day course for newly appointed judges that is intended to provide them with the essential knowledge, skills and understanding of social contexts to succeed in their new role. The course includes training on sexual assault trials, and on the myths and stereotypes that might arise in those trials. It also includes training on the importance of considering violence in family law matters.

As for sitting judges, they must attend two courses called Judging in Your First Five Years: Criminal Law. One is related to criminal law and the other one to family law. In addition, as part of their continuing education plan, sitting judges are invited to participate in national seminars and conferences in family law, criminal law, access to justice for children, jury trials, gender‑based violence and similar topics.

Furthermore, appeal courts and superior courts organize annual general meetings that include training. Since January 2018, 50 live-education programs have been offered during these annual meetings, dealing in whole or in part with issues related to intimate partner, domestic or family violence; sexual assault trials; and social contexts.

Digital resources are also made available to judges on sexual assault, Indigenous people’s issues, intimate partner and family violence, evidence, family law and jury instructions.

As said previously in this chamber, studies have shown that violence against a parent harms the children of the family. In fact, a violent husband cannot be a father who is able to act in the best interests of the children.

That is why Parliament adopted substantial amendments to the Divorce Act in 2019. Those changes were designed to identify violent acts and to force all those involved in divorce proceedings, including lawyers, social workers, psychologists and judges, to consider such acts in reports, agreements and decisions relating to sharing parental time and responsibilities.

The ultimate goal of those amendments has been to protect the ex-spouse and the children against further violence following separation, especially from husbands who have exercised coercive control over their spouses. Studies show that despite a separation, such husbands will often resort to violent acts to try to resume coercive control, including harassment, threats, assaults and even murder.

[Translation]

Since the coming into force of the reformed Divorce Act on March 1, 2021, we have seen a shift in the jurisprudence. A growing number of rulings handed down by the lower courts, appeals courts and the Supreme Court of Canada are noting the importance of considering incidents of family violence, assuming they are against the best interests of any child and putting measures in place to ensure that the former spouse or the children are no longer exposed to violence.

On May 20, in Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada stated, and I quote:

The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

That is a clear and unequivocal message from the Supreme Court to every judge and member of the judicial system and the law societies.

I could also quote numerous rulings handed down by provincial criminal court judges, superior family court judges and appeal courts across the country that confirm that Canadian courts now take family violence and intimate partner violence very seriously.

In my view, this change in attitude is the result of several factors. These include the aforementioned amendments to the Divorce Act and the Criminal Code relating to intimate partner violence, the importance that media and society have placed on the issue of spousal violence, and the increased knowledge within the justice system of the serious consequences associated with spousal and family violence. This growing awareness in the court system needs to be further encouraged, specifically through training for judges and lawyers.

I will now move on to the amendments to the Criminal Code.

[English]

Bill C-233 proposes to amend section 515 of the Criminal Code that deals with judicial interim release, called bail orders.

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When a person is arrested and charged, the principle is that the accused should be released without conditions pending the completion of the judicial process, unless the Crown shows that the detention of the accused is justified or that the release order should be accompanied by conditions.

There are some exceptions to that rule. For example, further to the adoption of Bill C-75 in 2019, when the accused has been previously found guilty of a violent offence against an intimate partner, it is up to the accused to show that their release could be managed safely for the alleged victim. Bill C-233 proposes to add that when the person is accused of an offence involving violence against an intimate partner, the judge can impose as a condition of release that the accused must wear an electronic monitoring device if the attorney general of the province makes the request.

In our digital and connected world, there are two types of devices. It could be a bracelet, worn by an accused, which is connected by radio frequency to a telephone line in the place of residence in order to indicate to a monitor in real time that the person is always in the place of residence. For example, if a convicted person has been released under the condition of staying at home at all times, such a device ensures compliance or at least serves as evidence of a breach of compliance.

A second type of device allows for the geolocation of a person at any time. In cases of intimate partner violence, such a device could be ordered for a convicted person when the release order includes the condition to maintain a certain distance from the house or place of work of the victim. A breach of the order could automatically be signalled to a monitoring centre that could alert the victim and dispatch the police. A more sophisticated system provides a corresponding electronic device to the victim that will automatically signal the presence of the accused if they are within a certain range.

Under the current provisions of the Criminal Code, a judge could order an accused person to wear an electronic bracelet as a condition of a bail order, assuming that it is available in the place of residence of the accused. This condition is often offered by the accused to show his desire to comply with the bail order and willingness to assume the associated costs.

One of the main providers is Recovery Science Corporation of Bradford, Ontario. According to its website, since 2010 over 800 people across Canada have been granted pre-trial release when including its GPS program as part of their plan of supervision. The company then enters into an agreement with each participant that includes a comprehensive waiver of confidentiality that enables it to report violations and share monitoring data with police, as well as the payment of over $600 per month for the service.

Incidentally, in a case before the Superior Court of Quebec in November 2021, this company acknowledged that with a good pair of scissors it was possible to cut off the bracelet, and that it had happened about 130 times so far, which is, more or less, about 15% of the cases.

It is also worth noting that wearing a bracelet may be ordered currently pursuant to the Immigration and Refugee Protection Act and the Corrections and Conditional Release Act to monitor compliance with conditions such as house arrest, curfew or not leaving a certain area. Bill C-233 proposes to make it clear to the Crown, the accused, the victim and the judiciary that such a condition in a bail order should be considered as a way to not only deter non-compliance but also protect the alleged victim in cases of domestic and intimate partner violence, pending criminal proceedings.

The sponsor of the bill in the other place has chosen to focus on bail orders because it is in the first 18 months post-separation that many women or children are killed. Statistics show that the post-separation period is an enhanced period of danger for the victims of violent partners. Of course, adopting this bill won’t prevent Parliament from providing for monitoring devices in other circumstances, such as those contemplated in Bill S-205 proposed by Senator Boisvenu.

In all cases, it must be clear that reliance on electronic monitoring devices depends on the existence of proper infrastructure to provide a reliable device, constant monitoring and a timely response if triggered, including from the police. Otherwise, the victims may live with a false sense of security. That’s why it is proposed that such a bail order condition can be imposed by a judge only at the request of the attorney general of the province. Hopefully, this should create an impetus for provincial governments to establish the required infrastructure for such monitoring systems.

[Translation]

On that note, I want to highlight the important initiatives undertaken in my part of the country, Quebec, to establish a monitoring device system. The Government of Quebec is acting on recommendation 84 of a report entitled Rebuilding Trust, which was tabled on December 25, 2020, by the expert committee on support for victims of sexual assault and domestic violence. Recommendation 84 states the following:

Where appropriate, consider requiring the accused to wear an electronic bracelet as a means of further protecting the victim.

This committee also recommended that victims have free‑of‑charge access to rapid intervention tools, such as emergency telephones, and encouraged the use of other technological methods for keeping victims safe, all at no charge to them.

In response to this report, Quebec adopted various measures. For example, the National Assembly passed Bill 24 in the spring. This bill amends the Act Respecting the Québec Correctional System and authorizes the director of a provincial prison or the Quebec parole board to require, as a condition of release, an offender convicted of domestic violence and sentenced to less than two years to wear a monitoring device that tracks their whereabouts at all times.

Of course, in order for an electronic monitoring device to fulfill its function, the victim’s location must also be known at all times. Therefore, this release condition can only be imposed with the victim’s consent. Quebec correctional services provide victims with the necessary equipment, such as cellphone software that tells the victim when the offender is within a certain distance of her. This is all at no cost to victims. These devices can only be imposed if the judge has ordered it for the accused as part of an application for release.

A budget of $41 million over five years has been allocated to implementing this system. This budget includes funding to train stakeholders in assessing abusive partners, and to cover the cost of equipment and the monitoring of the system. Incidentally, continuous monitoring of these electronic devices has been entrusted to a non-profit security company, the Commissionnaires du Québec, which includes former members of the Armed Forces and the RCMP.

On May 20, 2022, the Quebec government announced the launch of a pilot project in Quebec City. This will be followed by a gradual rollout across Quebec, with four regions to be added this fall, followed by eight more in the spring and, finally, the rest of Quebec in the fall of 2023.

The Quebec Ministry of Public Security estimates that 500 electronic monitoring devices should meet the requirements when the program is implemented across the province. Three devices have been ordered so far as part of the pilot project.

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This initiative is in addition to others introduced by Quebec, in particular the creation of courts specialized in sexual violence and domestic violence, the allocation of financial assistance to 11 municipal police forces for the hiring of staff specialized in the fight against domestic violence and femicide, and the provision of funding of treatment services for offenders.

I would remind colleagues that 26 women were murdered in Quebec in 2021, the majority in the context of domestic violence.

The monitoring device is therefore an interesting tool. We hope that, based on the Quebec experience, the National Parole Board will consider requiring offenders involved in intimate partner violence to wear a monitoring device while noting that the effectiveness of this device requires not only the consent of the victim but an adequate system of supervision.

That said, I believe it’s important to point out that to address intimate partner violence we need a comprehensive strategy as demonstrated by the Spanish experience after the adoption in 2004 of legislation addressing intimate partner violence that integrates an approach based on the victim, often a woman, as is the case here in Canada, in approximately 80% of cases.

I would like to highlight five features of the Spanish system: specialized courts; specially trained police officers; an effective public awareness campaign on domestic violence — a survey found that 8 out of 10 women in Spain are aware of these programs; an information platform called VioGén, maintained by police officers and the various institutions that care for abused women; and an electronic surveillance command centre, connected to the Spain’s department of health, social services and equality, which is responsible for 24-hour monitoring of the bracelets in use.

The use of monitoring bracelets in protection orders increased by 800% between 2009 and 2018, going from 166 to 970, which represents 5.6% of all violence-related orders issued in Spain. In fact, Spain is a leader among democratic countries in terms of the number of bracelets per capita.

These measures seem to be working. In fact, since the 2004 law, the number of femicides in Spain has decreased by 25%.

[English]

According to researchers and numerous scholarly articles, documented violations of these orders have been very scarce.

Some of the research also indicates that some victims of domestic violence are resistant to the use of electronic monitoring because this reminds them too much of the dynamic experience when they were living with their controlling partner. They felt monitored at all times. However, the feeling of security and confidence in the system has increased over time, according to Spanish police. It seems that more and more victims are satisfied with the system and that the number of false alarms is decreasing.

Several jurisdictions have followed Spain’s example: Portugal, France, Italy, the United Kingdom, Puerto Rico, Mexico, Chile and Japan.

[Translation]

Electronic monitoring bracelets were implemented in France in 2019. The French government announced an operational capacity of 1,000 units nationwide. As of April 1, 2022, French judges had ordered 995 electronic bracelets to be worn.

In that country, the imposition of an electronic bracelet, which is also referred to as being “placed under electronic monitoring,” may be applied before conviction or as part of the sentence.

What is more, a family court judge may issue a protection order to shelter a woman who is a victim of domestic violence, independently from any criminal proceedings.

Nevertheless, some victims feel that electronic monitoring devices are inadequate because they are not automatically ordered by judges.

It should also be noted that emergency telephones are another device that are recommended for Quebec. France implemented them in 2014, five years before the electronic bracelets. The device consists of a cellphone with a specific button that the victim can press to quickly alert the help line, which is informed of the call and the victim’s geographic location at that precise moment. This service dispatches law enforcement officers who are connected to the service through a special line, either with local police or with the national police force.

According to the French justice department, 3,512 of these phones were available on French territory as of March 1, 2022; 2,566 of them were assigned. That means another 1,000 are available for use.

However, in 2021, some associations criticized the fact that these phones were being handed out so sparingly.

According to the French justice department’s website, the electronic monitoring device is a more versatile tool than the emergency telephone.

There seems to be a big difference between outcomes in Spain and those in France, largely due to the funding allocated to other measures enabling women to get away from violent partners. For example, Spain has 8,600 specialized shelter spaces compared to 5,000 in France, even though France’s population is 30% bigger.

[English]

In conclusion, I want to thank the sponsor of Bill C-233, MP Anju Dhillon, and all members of the House of Commons for having unanimously adopted Bill C-233. It contains two interesting measures that could effectively help protect against further domestic and intimate partner violence. Thus, I invite you to adopt the bill at second reading as soon as possible and to send it to committee for review.

However, it should remain clear that the incremental steps contained in Bill C-233, though useful, are insufficient to end intimate partner and domestic violence. A comprehensive strategy must be developed. It must include help for aggressors — especially men — access to resources for victims, including shelters, public education and training for all those asked to intervene, such as police officers, social workers and judges.

[Translation]

Thank you for your attention. Meegwetch.

Hon. Pierre J. Dalphond: Honourable senators, I see that this item has reached its fifteenth day. Accordingly, with leave of the Senate, I propose that study of this item stand until the next sitting of the Senate.

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. Pierre J. Dalphond: Honourable senators, I would like to take part in the debate for a moment to note that the topic we are discussing here is very important. I would also like to congratulate Senator Boisvenu, the sponsor of this bill, as well as Senator Moncion, who described her experience as a jury member. I would like to add a few comments, so I will adjourn the debate for the balance of my time.

(On motion of Senator Dalphond, debate adjourned.)

[English]