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”.

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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.

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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.

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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 rise to share my perspective on the amendment proposed by our respected colleague, Senator Boisvenu.

My remarks will centre on the following points: first, some background on sentences to be served in the community; second, the purpose of Bill C-5 in that regard; and third, the scope of Senator Boisvenu’s proposed amendment.

Some of my remarks are inspired by the most recent Supreme Court of Canada decision, which was handed down on Friday, November 4, in R. v. Sharma, a case that was referred to by the Minister of Justice and Senator Gold, as well as numerous witnesses, during the committee’s consideration of Bill C-5.

I will use Professor Cotter’s three-step approach. First I will provide a little history.

When the first Criminal Code was adopted in 1892, Parliament set out hanging, imprisonment, and fines and forfeiture as possible penalties. The death penalty was abolished in 1968. We have also seen the emergence of other types of sentences, such as conditional release, also known as a probation order, and conditional sentences, which are sentences served in the community.

[English]

Conditional sentences were introduced as part of a 1995 bill entitled An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof. This bill significantly reformed sentencing law by stating the purposes and the principles of sentencing, and by setting out considerations for judges when determining a fit sentence.

In other words, the bill substantially structured the discretion of Canadian judges with regard to sentencing. Nowadays, there are many provisions that start at section 718 and following in the Criminal Code that really structure, if not limit, the discretion of judges.

Among the various principles enunciated, the one relevant to our consideration of the proposed amendment is found at section 718.2(e) of the Criminal Code. That provision states that all available sanctions other than imprisonment must be considered where reasonable in the circumstances and consistent with the harm done to the victims or the community.

Under the 1995 bill, offenders were not eligible for conditional sentences if: one, the offence was punishable by a minimum term of imprisonment — what we call a mandatory minimum penalty, or MMP; two, the court was considering imposing a term of imprisonment of two years or more; three, imposing a conditional sentence would endanger the safety of the victim or of the community; or four, a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing. These are the four types of exclusions that make a conditional sentence unavailable.

The principal objectives of Parliament in enacting this new legislation in 1995 were, thus, to reduce the use of sentences of imprisonment in cases that were admissible and to address both punitive and rehabilitative objectives as stated by the Supreme Court of Canada in Proulx, a judgment rendered in January 2000, which is the most famous judgment on conditional sentences.

In 2007, Parliament adopted a government bill to exclude the possibility for a judge to impose a conditional sentence for those convicted of a serious personal injury offence, a terrorist offence or a criminal organization offence prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more. In other words, even if there was no MMP applicable for these offences and the sentencing judge held the view that a sentence of less than two years would be appropriate, this was not possible. Imprisonment was the only way.

In 2012, Parliament adopted another bill called the Safe Streets and Communities Act for the purpose of excluding the possibility of conditional sentences for a long list of additional offences. First, this list included all the offences prosecuted by way of indictment for which the maximum term of imprisonment is 14 years or life. Second, this list included categories of offences prosecuted by way of indictment for which the maximum term of imprisonment was 10 years that: one, resulted in bodily harm; two, involved the import, export, trafficking or production of drugs; or three, involved the use of a weapon. These categories of offences are found at paragraph (e) of the current section 742.1 of the Criminal Code. Third, there are 11 specific offences prosecuted by way of indictment: prison breach; criminal harassment; sexual assault; kidnapping; trafficking in persons — material benefit; abduction of person under 14; motor vehicle theft; theft over $5,000; breaking and entering a place other than a dwelling-house; being unlawfully in a dwelling-house; and arson for fraudulent purpose. These 11 specific offences are found at paragraph (f) of current section 742.1 of the code.

Bill C-5 proposes to delete paragraphs (e) and (f). This means broadening judicial discretion in sentencing in connection with offences described a few seconds ago, including all offences related to drugs under the Controlled Drugs and Substances Act, many of which were declared unconstitutional.

This means that a conditional sentence will again become an available sanction in relation to these categories of offences and specific offences should the judge conclude that, first, an offender deserves a sentence of imprisonment of less than two years — these are not the most serious offences. Second, the offender presents no risk to the community or to the victim. And third, such a conditional sentence would be in accordance with all the sentencing principles including consideration of all available sanctions other than imprisonment where it is reasonable in the circumstances, especially in the case of Indigenous offenders which requires the application of the Gladue principles.

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The current government has made a policy decision, and this is perfectly valid. In the recent judgment in Sharma, which Senator Batters referred to, the Supreme Court of Canada said:

Parliament has the exclusive authority to legislate in matters of sentencing policy. There is no constitutional right to any particular sentence, including a conditional sentence . . . . Parliament had no positive obligation to create the conditional sentence regime. This Court stated in Proulx that Parliament could “have easily excluded specific offences” from the conditional sentencing regime when it came into force in 1996 . . . . It chose to do so later, and may choose to do so in the future. That is inherent in the role of Parliament, informed by experience and by the wishes of the electorate.

Senator Boisvenu disagrees with the broadening of judicial discretion proposed by Bill C-5 in connection with sentencing, and proposes to revert to the 2012 policies of the Harper government, which Senator Batters referred to.

[Translation]

The senator is proposing, in keeping with the 2012 legislation, to exclude any possibility of conditional sentences for a list that includes nine specific offences, which would become the new paragraph (e) of section 748.2 of the Criminal Code. I want to point out that this list is shorter than the 2012 list, because the senator is proposing to drop the following offences: prison breach; motor vehicle theft; theft over $5,000; breaking and entering a place other than a dwelling-house; and arson for fraudulent purpose.

In doing so, he is dropping four types of offences described in 2012 as being serious property crimes that justified excluding conditional sentences. I note this change.

As he stated in response to one of my questions, he chose to focus on offences against the person. That is why there are two new offences on the proposed list that were not found in the 2012 legislation: causing bodily harm by criminal negligence, and assaulting a peace officer with a weapon or causing bodily harm. I want to point out that in my research, I found very few legal decisions for either of these offences. They do not seem to be used. I would add that I did not hear one witness or read one brief that suggested adding these offences to the list of cases where the use of conditional sentencing would be prohibited.

In his speech leading up to the proposed amendment, Senator Boisvenu repeatedly referred to violence against individuals, especially women and children, to justify the other items on his list. For example, he said it was completely unacceptable for a man convicted of intimate partner violence to serve his sentence in the community.

I agree with him in the case of a repeat offender, and I believe that, in such cases, judges will not even consider a sentence of less than two years. I should add that a conditional sentence is possible only if the judge believes this type of sentence poses no threat to the victim or the community. Unfortunately, Senator Batters did not mention these prerequisites for a conditional sentence in her speech.

Also, in Quebec, judges can require offenders serving a conditional sentence to wear an electronic monitoring bracelet if the victim consents to having a corresponding app installed on their cellphone. My understanding, based on what Senator Batters said two weeks ago, is that this is also being done in Saskatchewan and other provinces.

Senator Boisvenu also mentioned that, according to 2010 figures he obtained from the Syndicat des agents de la paix en services correctionnels du Québec, or CSN, which is the union representing Quebec peace officers in correctional services, 40% of offenders serving conditional sentences don’t comply with the conditions imposed by the Criminal Code and the judges. Unfortunately, we did not hear any witnesses make that claim, nor did we receive any documentation or evidence to support it. Furthermore, we have no information on the nature of the alleged violations, which I am sure must vary in severity.

Finally, I would point out that a conditional sentence can only be imposed on offenders if the judge believes that the appropriate sentence is imprisonment for a period ranging from a few days to two years; in other words, these are offenders who would be sent to provincial corrections facilities. The proposed amendment is tantamount to saying that we will automatically increase the number of inmates in provincial prisons. In my view, we cannot impose that consequence on the provinces unilaterally, without consulting them and giving them the opportunity to express their views on such an amendment in committee. As senators representing the regions, we owe it to the provinces to consult with them before imposing a significant financial burden on them.

In conclusion, it seems to me that this amendment must be rejected. That was the outcome at the Standing Senate Committee on Legal and Constitutional Affairs, by a vote of nine to four. Thank you for your attention. Meegwetch.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1540)

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

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

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

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

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

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

[Translation]

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

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

Thank you very much. Meegwetch.

[English]