Hon. Brent Cotter: Honourable senators, I rise to speak briefly on Bill C-284. I don’t usually get to speak on Wednesday, so this is a special honour.

You’ve heard the numbers with respect to vision: the extent of vision loss among Canadians in the millions; the economic losses in the billions; the emotional effect of loss of enjoyment of life; and the cost to Canadians who suffer — often unnecessarily — from vision loss. These are heartbreaking messages, and I hope they will motivate us to act with respect to this bill.

My own motivation to speak today, though, is inspired by two things: first, the wise, thoughtful leadership of Senator Ravalia on this matter; and, second, personal experience.

One of the remarkable things about this version of the Senate is the diversity of expertise residing in our individual senators. Each of us in this place looks to make meaningful contributions, often drawing on our own non-Senate experience and expertise and hopefully finding ways to make contributions that are consistent with our values and hopes to build a better Canada. Senator Ravalia is an exemplar in this regard, drawing from his experience as a medical doctor, his knowledge and his empathy for so many — including many patients suffering from vision loss, particularly in cases where this was preventable.

Senator Ravalia has agreed to sponsor this meaningful bill. It will not cure vision loss, but it will mandate the development of a long-overdue national strategy to address a scourge experienced by so many. I’m confident that its value is incontrovertible. I’m confident it is incontrovertible from your perspective as well. It is a bill from the heart. It feels to me as though this bill — a bill from the heart — is a model of the man who sponsors it in this place. I hope we will appreciate this work and commitment on his part and his partner in the other place, member of Parliament Judy Sgro.

Thank you, Mohamed. I’m honoured even in this small way to be associated with your work. We will all bask in the reflective glory of this achievement, both when the bill is passed and in the years ahead when a national framework makes a real difference in reducing preventable vision loss.

My second motivation in speaking today is personal. My mother passed away a few years ago at the age of 95. She was a loving, kind, devout woman and a supportive spouse to our father. My father tended to occupy a larger-than-life place in the close, loving family, but my mother was a critical anchor to it.

For pretty much the last 25 years of her life, my mother lived with steadily advancing macular degeneration and was legally blind for pretty much the last 20 years of her life. However, my mother was fortunate in so many ways — ways in which others who suffer from vision loss are not. She had a happy marriage of 55 years, a loving husband and wonderful children. She’s not here to dispute that. It’s kind of fun when there are no rebuttals.

Our family was not wealthy, but we lived comfortable lives, and my mother had a deep, deep religious faith — deeper than anyone I have ever known. I mention these things for two reasons. First, unlike many in her situation, although her own steadily declining loss of vision caused a meaningful diminishment in her life, she was fortunate and aware of it. This was one negative aspect of an otherwise fulfilling and meaningful life.

For example, she loved to travel. When it came to travel, she had the view that one third of the joy of travel was the anticipation, one third was the experience and one third was the remembrance. Even with macular degeneration, she still loved to travel, and the more exotic, the better. Though the experiences were much diminished by vision loss — and she had to hear more and more of what we told her we saw — she still had a great experience in those regards.

With respect to “the more exotic, the better,” I have one example. One year, when she was about 80 and had lost most of her vision, we went on a trip to Uganda. While we were there, we stayed at a resort near a lake in the western part of Uganda in the heart of a pretty basic, unfenced reserve filled with, among other animals, hippopotamuses — if that’s the right plural. Walking back to our rooms after dinner one evening just at dusk, she and my daughter Kelly got out in front of the rest of us. Between my daughter’s lack of attentiveness and my mother’s lack of vision — a bad combination of “lacks,” let me tell you — they came within a few feet of walking into the rear-end of a hippopotamus enjoying an early evening feeding. We learned afterward that this was a very dangerous situation. Our host rescued them. However, my mother, stoic as ever, was of the view that if this was the way she would meet her maker — through a combination of lost vision and an unfriendly hippo — so be it.

She was this way with her vision loss too. It was her lot in life, she felt. Her powerful faith made this acceptance possible for her in life.

I greatly admire the way in which my mother accepted — even embraced — this infirmity, but all of us wish that she had been able to live her life more fully with good eyesight.

I hope — as I’m sure my mother could — that through the initiative of this bill, we will reach a stage where this kind of vision loss and so many other vision infirmities are a vestige of the past. It is, in some respects, a small tribute to my mother that I make these remarks.

I hope you will support this bill, help to send it across the finish line without delay and get this important work under way. Thank you.

Hon. Brent Cotter moved the adoption of the report.

He said: Honourable senators, I have the honour of presenting to the chamber the report of the Legal and Constitutional Affairs Committee’s report on Bill S-231, which began consideration before our committee before December 13, 2023. Our report came to the Senate on December 13, 2023. This constitutes my brief speech with respect to the committee report. I want to thank the chair of the committee, Senator Jaffer, for making this opportunity available to me.

The bill, sponsored by Senator Carignan, is entitled “An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.” The short title of the bill, which better conveys its import, is “Increasing the identification of criminals through the use of DNA Act.”

Generally speaking, the bill proposes legislation that amends a series of laws — the laws I have just mentioned — so that the collection of DNA from people convicted of serious criminal offences and people found not guilty on account of mental disorder would be expanded in terms of the categories of persons and offences where DNA can be collected and placed in the DNA data bank.

The bill would also expand, in limited circumstances, the ability of investigative police agencies to obtain information with respect to investigations under way in what are known as familial searches. This is when there was not a direct match between the DNA found in an investigation and a person whose DNA profile is in the data bank, but there shows a match with a person who has a genetic affiliation to the person whose DNA is in the bank. These are known as familial searches. The bill was substantially amended at committee. In a moment, I will highlight these amendments.

Your committee met on four occasions to consider the bill, beginning on November 9, 2023. There was one committee meeting for a clause-by-clause study, which was held on December 7, 2023.

Three amendments proposed at committee were adopted, and four clauses of the bill were defeated. The key changes to Bill S-231 are as follows:

First, clause 3 of the bill regarding mandatory DNA orders was defeated.

The Criminal Code currently requires a defendant to provide a DNA sample where they have been convicted of or received a discharge for what are known as “primary designated offences.” Primary designated offences are serious offences under the Criminal Code, including several sexual offences, murder, manslaughter, aggravated assault, robbery and others.

A court also has the discretion in these circumstances to order a defendant to provide a DNA sample where they have been convicted, discharged or found not criminally responsible in cases of what are known as “secondary designated offences.”

Clause 3 of the original bill would have amended the Criminal Code to require a DNA order following conviction, discharge or a finding of not criminally responsible on account of a mental disorder for any primary or secondary designated offence, with some exceptions.

The committee removed this clause from the bill, leaving the Criminal Code unchanged with respect to the authority of the courts to either have the power to or make a requirement to issue these DNA orders.

Second, clause 4 of the bill, which is the timing for such orders, was also defeated.

Clause 4 of the original bill set out the timelines during which a court would have been required to make a mandatory DNA order. This clause was connected to and followed the proposed amendments under clause 3, about which I have spoken.

The committee — by majority — removed this clause from Bill S-231.

A third clause related to what are known as “familial DNA searches” was also defeated.

Clause 18 of the bill would have amended the DNA Identification Act to allow familial searches of the National DNA Data Bank in certain limited circumstances. This would have enabled a search of the National DNA Data Bank for a DNA profile that could identify a biological relative of the person whose DNA was in the data bank.

The committee — as I say — removed this clause from the bill.

Fourth, clause 20 deals with amendments related to destroying DNA profiles contained in the convicted offenders index of the data bank if the person is acquitted of the charges tied to the original DNA order, and if the accused had no other findings of guilt, discharges or findings of not criminally responsible for a designated offence that could have triggered a DNA order originally. The committee amended this clause to remove references to findings of not criminally responsible.

The result of this amendment is that an individual who has been acquitted of a designated offence may request that their DNA profile be removed from the data bank despite a separate finding of being not criminally responsible for another designated offence.

Finally, in terms of major amendments, clause 24 of the bill requires that the Minister of Public Safety and the Minister of Emergency Preparedness report on the advisability of taking a DNA sample on the same basis as fingerprints taken under the Identification of Criminals Act. The committee amended this clause to require that such a report proceed, and should include specific analysis of the inculpatory and exculpatory effects toward the liability or the absence of liability that DNA sampling might have on Indigenous, Black and racialized populations.

I think it’s fair to say — and I’m about to conclude — the committee has conducted serious and often spirited consideration of the bill, and was assisted greatly by the 17 witnesses who appeared before the committee. On the committee’s behalf, I want to extend our thanks to the witnesses who met with the committee.

I would like to make two final observations — if I may — which are a little more personal than the committee report. I think it’s fair to say that committee members did not oppose the use of DNA for investigative purposes. However, a majority of the committee was concerned about the specific situations where the capture and use of DNA would be expanded by this bill, leading to clauses that were uncomfortable for them, and leading to their defeat or amendment.

I anticipate that members of the Senate, members of the committee and its sponsor, Senator Carignan, will expand on these bare-bones comments during the Senate’s study of this report. Thank you.

(On motion of Senator Clement, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Housakos, for the second reading of Bill S-220, An Act to amend the Languages Skills Act (Governor General).

Hon. Brent Cotter, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Tuesday, December 12, 2023

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

TWENTY-SECOND REPORT

Your committee, to which was referred Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act, has, in obedience to the order of reference of November 3, 2022, examined the said bill and now reports the same with the following amendments:

1.Delete clause 3, page 3.

2.Delete clause 4, pages 3 and 4.

3.Delete clause 16, page 6.

4.Delete clause 18, pages 7 and 8.

5.Clause 20, page 8: Replace lines 39 to 41 with the following:

6.Clause 24, page 9: Replace line 19 with the following:

“Act, with specific analysis of the inculpatory and exculpatory effects that DNA sampling have had on Indigenous, Black and racialized populations.”.

Respectfully submitted,

BRENT COTTER

Chair

Hon. Brent Cotter: Honourable senators, I hadn’t intended to intervene in the debate, and I have immense respect for Senator Carignan’s thoughtfulness in relation to matters related to the criminal law, but I do want to raise two observations.

One, if the nature of this is to try to increase the mandatory minimum for certain quite serious crimes, it seems a bit unusual to do it by ratcheting up the nature of the offence, particularly when one does that with respect to first-degree murder.

Second, more generally — and maybe in a slightly protective way related to the role and responsibilities of the Legal and Constitutional Affairs Committee — we constantly face challenges at that committee in — I don’t want to use the word “tinkering” with the Criminal Code — but in making individualized adjustments. It’s a big enough challenge as it is to be comfortable that we are addressing those questions in an organized, logical and coherent way.

With respect to first-degree murder, the regime for, essentially, borrowing the concept of planned and deliberate, setting that aside and holding first-degree murder together for other types of offences, particularly based on the victim, is a very fragile and carefully thought-together framework. I don’t even call it a “regime,” but a “framework.” With the greatest of respect, this is a problematic way of making amendments to and expanding the scope of first-degree murder without reflecting on that larger category.

As I think you will know, the Legal and Constitutional Affairs Committee was not mandated to work on this bill, and this is a matter, I think, that if it deserves consideration, it should be done independently and with richer degree of thought.

Thank you very much.

Hon. Brent Cotter, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Thursday, November 30, 2023

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

TWENTIETH REPORT

Notwithstanding section 1.5.3.1(a) of the Financial Policy for Senate Committees, your committee, to which may be referred matters relating to legal and constitutional affairs generally pursuant to rule 12-7(9) of the Rules of the Senate, respectfully request funds for the fiscal year ending March 31, 2024.

Pursuant to Chapter 3:05, section 1(1)(c) of the Senate Administrative Rules, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that committee are appended to this report.

Respectfully submitted,

BRENT COTTER

Chair

(For text of budget, see today’s Journals of the Senate, p. 2248.)

Hon. Brent Cotter moved the adoption of the report.

He said: Thank you, Your Honour.

I rise to speak to the Standing Senate Committee on Legal and Constitutional Affairs’s seventeenth report on its study of Bill C-48.

To assist in your recollection of this bill, it is referred to as An Act to amend the Criminal Code (bail reform).

I’ll say more about the bill in a few moments. To give you a sense of the central thrust of the bill, it is to increase the number of offences in the Criminal Code for which, when a person is charged, he or she faces a so-called reverse onus, such that it rests with the accused person to persuade the judge or justice of the peace on a balance of probabilities that they should be released on bail. For these offences, it transfers the “burden of proof,” in legal language, onto the accused in order to get released pending trial.

First, I’ll provide a bit of context. As a general rule, people who are accused of crimes are let out on bail. The presumption is for release, but the Criminal Code provides three situations where a person can be detained: to ensure attendance in court, for the protection of the public and any victim and, third, to maintain confidence in the administration of justice. Usually, it is for the prosecution to establish that one of these situations or conditions for denial of bail exists or is met.

However, for some offences, the Criminal Code has established what is referred to as a reverse onus; that is, it is for the accused person to make the case that he or she should be released. The legal language is that the onus, or burden of justifying release, rests not with the prosecution but the person accused of the crime. This reverse-onus approach for offences, where it has been applied, has been held to be constitutional by the Supreme Court of Canada.

As I say, Bill C-48 will add a series of offences to this category of reverse-onus situations for bail. The categories are generally in the following range: a range of offences associated with the use of a firearm. This is the thrust of clause 1(2), 1(3) and part of what’s referred to as 1(4) of the bill, as well as offences associated with intimate partner violence where the accused person had been previously granted a discharge for a similar offence.

To assist in your understanding of this dimension of the bill — and it’s important, and also the subject of an amendment — a discharge is an outcome in a court where a person has admitted guilt or been convicted of guilt, but the sanction imposed by the judge is to discharge the person of the offence, either absolutely or on conditions. Once the conditions are met, while the record is maintained, the conviction is essentially not recorded against them — generally thought to be at the low end of sanctions for criminal offences.

Now, Bill C-48 came to us in a slightly unusual way. It was introduced in the other place on May 16, 2023. It had been the subject of periodic debate in late spring of 2023. The subject matter of Bill C-48 had been discussed among federal, provincial and territorial justice and public safety ministers prior to its introduction. The bill was supported by the provinces and territories, as well as police leadership in the country.

As many of you will have observed, over the past number of months there has been a good deal of attention paid to occasional events where a person out on bail, or out from custody on an analogous basis, is alleged to have committed a very serious crime, often a crime of violence, with tragic consequences for the victims. The sentiment around these events motivated expeditious action respecting Bill C-48.

On September 18 of this year — that is, approximately a month ago — the bill received second reading, Committee of the Whole consideration and third reading in the other place all in one day, and was adopted unanimously — and I emphasize this — without reference to the Justice Committee there. Unlike nearly all bills of this type, it received no committee study prior to its adoption in the House.

This conveyed two messages to our chamber: first, obviously one of urgency with respect to the consideration of this bill in the Senate; second, given the absence of the study in the other chamber, there was a compelling argument that the bill received meaningful, timely consideration when it was referred to the Standing Senate Committee on Legal and Constitutional Affairs on Thursday, September 21 of this year.

In this case, the bill required sober first thought, if I may say so, and that is what it received in our committee.

Your committee held four meetings and heard from 26 witnesses, including the Minister of Justice, the Attorney General of Canada, officials from the Department of Justice, the Attorney General of British Columbia, police and legal associations, advocacy groups, academics and experts, Indigenous representatives and other stakeholders.

The committee also received nine written submissions.

I would like to briefly highlight aspects of what we heard at the committee and indicate the three places where the committee adopted amendments to the bill.

I anticipate colleagues will expand on these comments and provide perspective. I will also briefly say a bit about observations adopted by the committee.

Comments here then fall into four general categories aligned with your committee’s report.

First, many witnesses underlined the importance of collecting comprehensive and accurate data on bail in Canada to better understand and address the problems plaguing the bail system, a point we heard from nearly every witness, and to analyze the impact of legislation like Bill C-48, particularly on groups already overrepresented in the justice system.

The fact of the matter is that data collection regarding bail is the responsibility of the provinces and territories and not prioritized in the gathering of justice statistics and information. Many witnesses, however, underscored that federal legislation like this bill must be evidence-based and grounded in comprehensive, empirical data. I think it’s fair to say that the empirical basis for the adoption of this bill is weak.

As one of the observations notes, it’s critical that we know more about the bail system generally and exactly what effects, positive and negative, amendments like this to the bail system ultimately produce.

The second point concerns public safety. Witnesses expressed divergent views on the necessity, usefulness and impacts of the measures produced and proposed by this bill with regard to public safety.

In the wake of recent tragic incidents of violence involving individuals on pretrial release, several witnesses noted the importance of preserving public safety and confidence in the Canadian criminal justice system by ensuring that accused individuals are detained when that detention is justified to ensure public safety.

The committee heard testimony explaining that the bill includes targeted measures intended to respond to concerns raised by law enforcement across the country, and specific requests to expand reverse onus provisions to include select offences were received from 13 provincial and territorial premiers, including a co-signed letter in January of this year.

In contrast, some witnesses questioned the potential effectiveness of the proposed amendments, arguing that prosecutors could already argue for the detention of an accused when it is justified, including for reasons of public safety.

Some witnesses stated that the bill would not lead to a reduction of violent crime — as it does not address the root causes of violent crime — and investments in so many areas that could assist were critical.

This brings us to the first amendment to the bill adopted by the committee. Some witnesses recommended the removal of one of the provisions in the bill that would expand the reverse onus provision to apply to an accused who has received an absolute or conditional discharge for a previous conviction involving intimate partner violence. That is one of the provisions that would be a reverse onus provision in the initial bill. The witnesses argued that it would inappropriately target and criminalize survivors of intimate partner violence, as there is often a significant overlap between perpetrators and survivors of intimate partner violence. In some respects, this tends to scoop up relatively vulnerable people in this net, who are captured by the reverse onus clause. Others, including provincial and territorial governments, supported the bill in its existing form as a means to protect survivors of intimate partner violence.

The committee considered and adopted an amendment on this point to remove the reverse onus clause in these discharge and intimate partner violence cases. This was done on division, although I think that’s only technically the correct way of saying it. Senator Batters pointed out to me that, in fact, there was a roll call vote on this, and the vote was 8 to 5.

Third, the report summarizes what the committee heard in relation to the impact of Bill C-48 on Indigenous, racialized and marginalized communities. Some witnesses were concerned that the adoption of the bill would lead to prolonged litigation in bail court, increased demands on the legal aid system, longer bail delays and increased times in detention, exacerbating existing delays in the bail system. Several witnesses warned that these adverse effects would be visited disproportionately upon Indigenous, racialized and marginalized groups who are already overrepresented in the justice system, and already disadvantaged in obtaining release on bail.

All of this led the committee to consider and adopt an amendment proposed, in this case, by Senator Clement. This amendment requires additional consideration of the circumstances of vulnerable persons in judges’ and justices’ decisions respecting bail. The committee amended clause 1 of Bill C-48 to require that a justice presiding over a bail hearing state in the record of proceedings how they went about considering whether a person fell into one of the categories of people in section 493.2 that deserved special consideration — Indigenous or otherwise vulnerable people — and, if such a person is identified, how the justice applied his or her mind to that question of pretrial release.

My fourth and nearly last comment relates to the contemplated five-year review of the impact of Bill C-48. Strangely, as was noted here and at committee, clause 2 of this bill contemplates a five-year review by the Justice and Human Rights Committee of the House of Commons — period; full stop. Perhaps this was an oversight. It’s not the most critical point to be decided because the Senate would have the authority to initiate a study without any legislative blessing from the other place. Nevertheless, the committee expressed its view, noting the oversight, and introduced and adopted an amendment unanimously, as I recall, to Bill C-48 that a directive for a Senate committee — most likely the Legal and Constitutional Affairs Committee — be included in the clause 2 provision, which is the five-year review provision.

Finally, I will highlight four themes in the committee’s observations.

The first point is one that I’ve made already about the need for a comprehensive database reform of Canada’s bail system. It’s frustratingly fragmented and not a priority, but when you’re the one who has to sit in jail waiting for your trial, it’s pretty darn important.

The second point is regarding gender-based violence and violence against women: There is an observation to the effect that the vulnerabilities surrounding gender-based violence — and the need for a comprehensive response to these concerns — need to be a broad and general priority, as has been noted in previous reports.

The third point is an observation that this is an ideal topic for the Law Commission of Canada to consider in its review of the criminal law. The Criminal Code has been amended in a piecemeal way — sometimes by this chamber — for decades, and, no doubt, there are cumbersome, repetitive or inconsistent provisions that need comprehensive reform.

The final theme is the need for Gender-based Analysis Plus. I think it’s fair to say that the committee continues to experience frustration with the government in that it does not provide timely information regarding gender-based analysis. That was also the case with this bill. We received that information only days before clause-by-clause consideration, and I think it’s fair to say that the committee was disappointed not to receive that information prior to hearing the minister testify. In order to study a government bill in a serious and comprehensive way, the committee requires timely access to this analysis. The result in this observation is that the committee urges the federal government to provide Gender-based Analysis Plus information in a timely way when the bill is referred to the committee. Failing to do this, the committee may delay consideration of a bill until the committee receives this information.

I want to extend my thanks to the committee members and to the staff who supported the committee in the work on the bill, especially in the unusual circumstance where we had to be both the house of sober first thought and the house of sober second thought with respect to the bill.

Thank you.

Hon. Brent Cotter, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Tuesday, October 24, 2023

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

SEVENTEENTH REPORT

Your committee, to which was referred Bill C-48, An Act to amend the Criminal Code (bail reform), has, in obedience to the order of reference of September 21, 2023, examined the said bill and now reports the same with the following amendments:

1. Clause 1, pages 2 and 3:

(a) On page 2, replace lines 28 and 29 with the following:

(b) on page 3,

(i) delete lines 1 to 7, and

(ii) add the following after line 24:

2.Clause 2, page 3: Replace lines 29 and 30 with the following:

Respectfully submitted,

BRENT COTTER

Chair

(For text of observations, see today’s Journals of the Senate, p. 2044.)

Hon. Brent Cotter: Senator Tannas had begun to answer it. He answered me in private, but I think he might like to provide an answer to it here.

Hon. Brent Cotter: Senator Tannas, will you take a question or two?

Senator Tannas: Yes.

Hon. Brent Cotter: My question is for the Government Representative in the Senate. It concerns Bill C-22, the Canada Disability Benefit Act.

Senator Gold, you’ll recall that in June there was unanimous and enthusiastic adoption in the Senate and in the other place of Bill C-22. Part of that enthusiasm was associated with the message from Minister Qualtrough that the benefit would be in place for working-age Canadians with disabilities in approximately one year.

Recent communications from the government indicate that, relying on a Senate amendment to the bill that gives the government up to two years for implementation, the benefit will not become available until sometime in 2025 — perhaps as late as June 2025 — leaving thousands of our neediest citizens with disabilities without this benefit for up to two years after the bill received Royal Assent.

Can you advise whether this very unfortunate delay is indeed the case?

Hon. Brent Cotter moved the adoption of the report.

He said: This report pertains to Bill S-212 introduced by Senator Pate some time ago in this chamber. I’ll take a moment to give you background on the bill and its consideration at our committee.

This bill relates to the reform of the records suspension mechanism at the federal level, contained primarily in the Criminal Records Act. The consideration of this bill included four amendments at our committee, brought by colleagues at the Legal and Constitutional Affairs Committee.

Primarily, this bill constitutes a more streamlined — and in most cases, automatic — process by which criminal records are suspended. We often think of this as a pardon, although the real, technical structure in the bill is a record suspension. More specifically, the bill amends the Criminal Records Act to provide for the automatic expiry of a criminal record, with certain exceptions. In most cases, an individual’s criminal record would expire automatically if they have had no further criminal involvement for a set period of time after completing their sentence. For indictable offences, that period is five years; for summary convictions, that period is two years.

In consideration of the bill, senators met eight times and heard from 28 witnesses — as well as the sponsor of the bill, Senator Pate — and I think we gave comprehensive consideration to the bill over an extended period of time.

To return to the description of the bill, as I said, it constitutes a primarily automatic process by which records are suspended. There are certain exceptions to that process that apply in circumstances when an individual is convicted of another offence during that waiting period I mentioned, or where there are outstanding charges against the individual — or the individual was under investigation for such charges — at the end of the waiting period, or where the record relates to the conviction for a Schedule 1 or Schedule 2 offence under the Criminal Code. These are sexual offences. In these cases, an individual would be required to apply to the Parole Board of Canada for a record expiry.

Just so that it is clear — under Bill S-212, an expired record is not erased but must be kept separate from other criminal records at the federal level.

I think other members here will speak in somewhat greater detail about the bill. The process I just mentioned — by which records are kept separate — is similar to the existing system. Furthermore, an expired record must not be released or shared without the approval of the Minister of Public Safety and Emergency Preparedness.

The bill was amended in four respects at our committee; two of the amendments are of substance, and two are technical in nature, realigning the numbering of sections. I won’t speak to those. The more substantive amendments were along the following line and were proposed by Senator Pate. Given the expressions of concern that we heard from — among others — the policing community, with respect to access to information in the interest of justice or in the case of national security, under clause 11, the minister’s approval to disclose an expired record is not required in certain circumstances for offences related to unpaid fines and victims’ surcharges. The clause was amended to limit this type of disclosure to police only when it is in the interests of the administration of justice or the safety or security of Canada and its allies.

The second amendment allows for the definition of the circumstances where the release of an expired record relating to unpaid fines would be, again, in the interest of the administration of justice or the safety or security of Canada and its allies. As I said, the last two amendments were technical amendments.

I think this bill was given meaningful consideration, and I trust that in third reading here, it will receive the same treatment. Thank you, Your Honour.

(On motion of Senator Martin, debate adjourned.)

The Senate proceeded to consideration of the sixth report of the Standing Senate Committee on National Security, Defence and Veterans Affairs, entitled Arctic Security Under Threat: Urgent needs in a changing geopolitical and environmental landscape, deposited with the Clerk of the Senate on June 28, 2023.

Hon. Brent Cotter, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Tuesday, September 26, 2023

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

SIXTEENTH REPORT

Your committee, to which was referred Bill S-212, An Act to amend the Criminal Records Act, to make consequential amendments to other Acts and to repeal a regulation, has, in obedience to the order of reference of November 3, 2022, examined the said bill and now reports the same with the following amendments:

1.Clause 11, pages 6 and 7:

(a) On page 6,

(i) replace line 31 with the following:

(ii) replace line 35 with the following:

“that has been imposed for an offence; and

(b) on page 7, delete lines 28 to 34.

2.Clause 21, page 10: Add the following after line 14:

3.Clause 24, page 11: Replace line 6 with the following:

“(Subsection 6.3(2) and sections 7 and 7.2)”.

4.Clause 25, page 11: Replace line 10 with the following:

“(Subsection 6.3(2) and sections 7 and 7.2)”.

Respectfully submitted,

BRENT COTTER

Chair

Hon. Brent Cotter: Honourable senators, I rise to speak to Bill S-269. Senator Woo was kind enough to point out to me that the live audience for this speech has dwindled to three, but I’m especially pleased that they have hung in here for it.

Two days ago, Senator Marty Deacon laid out the motivation for this bill and the direction it proposes for the regulation of the advertising and promotion of sports betting in Canada. She also spoke extensively about the structure of the bill and its intended objectives. I wish to lend my support to the bill and fully endorse her remarks.

In the interest of trying to make my own comments useful, I will divide my remarks into three parts. To add a bit of spice, maybe for Senator Dalphond, I will try my best to keep your interest by giving each section of my remarks a catchy title.

The first section, reflecting on how we got here initially, is entitled, “How I may have committed crimes before coming to the Senate.” The second section is entitled, somewhat enigmatically, “The elephant,” and the third section is entitled, “What do we do when we come to a fork in the road?”

Here goes — “How I may have committed crimes before coming to the Senate.” I’m kind of hopeful that parliamentary privilege applies to these remarks.

For over a decade before I came to the Senate, I used to teach a course at the law school in Saskatoon and sometimes at Dalhousie University in Halifax entitled, “Sports and the Law.” Students in this course wrote major research papers, and nearly every year, someone opted to write a paper on sports betting and the criminal law of Canada. What I learned from those papers was a bit troubling.

When I’m in Saskatoon on Sunday evenings, we commonly have family dinners. My various nephews attend, and it was not uncommon for family members, including me, to discuss various sports teams and the likely outcomes of the games, prospectively. The purpose of these discussions was for them to make judgments on the teams that they would bet on in those games. Well, what I learned from reading my students’ sports betting papers, at least up until 2021, was this: My nephews were betting on sports games individually and, in doing so, were committing criminal offences. It could be argued, I guess, that my discussing it with them and offering my relatively uninformed opinions amounted to aiding and abetting these crimes — essentially, if I may say so, aiding and abetting betting.

It struck me in those years — and as the motivation of my support for Bill C-218, sponsored in 2021 in this chamber by Senator Wells and passed in that year — that while you might disapprove of betting in any form, it hardly rises to the level of committing a criminal offence to bet on a single sports outcome. Indeed, until the adoption of that bill in 2021, we had the unbelievably incongruous situation where if you bet on three games at once, you were engaged in a perfectly legal activity, but if you bet on one single game, you were committing a crime.

As Senator Deacon noted, that bill brought into the sunlight the issue of sports betting. It achieved at least four positive things: It created a legitimate industry away from the grey or black markets of sports betting; it at least made possible effective regulation of this industry; it brought revenues to public government; and it made possible the adoption of strategies to identify those at risk from sports gambling and to direct revenues to help ameliorate those risks.

I continue to support that initiative — the decriminalization of single-event sports betting. As you know, there was a good deal of background associated with the adoption of that bill, and, as Senator Deacon pointed out, the passing of that bill opened up a whole range of sports-betting opportunities and also, it turns out, an onslaught of advertising and promotion of sports betting. The latter, of course, is the focus of this bill.

But for my part, a confession: I had anticipated we would see a good deal of advertising by betting platforms to attract people to join their websites and place bets through them. It’s not surprising that this would take place since the profitability of betting platforms relies, to a certain degree, on small margins earned through a significant number of bettors placing a significant number of bets. What I had not anticipated — and I think this is also true in England — was the degree to which we have been inundated with advertising to encourage us not just to join the betting platforms but to place bets on ever so many outcomes — and even components of outcomes — to the point where the things that one could bet on have become ridiculous and, in some cases, problematic. The promotion of betting has become overwhelming and, in some cases, offensive.

I read an article last spring about a particular sports broadcaster putting out an apology to this effect: It apologized to viewers for having cut away from a sports-betting ad to return to the live action. The apology was a spoof, but it essentially makes the point I’m trying to make here.

Senator Deacon outlined well the challenges and risks that excessive amounts of sports betting and advertising have generated for us. Now we have the public policy challenge of appropriately reining in this plethora of betting promotion, which brings me to the next section, “The elephant.”

There’s an old story that circulates in the legal field, and it goes like this: Four students — a Canadian, a Brit, a German and an Italian — are taking a writing course. The instructor gives them an assignment, which is to write an essay on the subject of “the elephant.” Having written their essays, they come back to class, and the instructor asks each for the title of their essay. The British student’s response — it could have been a young Tony Dean — is, “The role of the elephant in the history of the British Empire.” The German student — it could have been a young Peter Boehm — said, “How to build a bigger and better elephant.” The Italian student — perhaps a young Tony Loffreda — called his essay, “The love life of the elephant.” The Canadian student — and here I am coming to my point; it could have been a young, nerdy Brent Cotter — titled his essay, “The elephant: a federal or provincial responsibility?”

You might be wondering what that punchline has to do with this bill. Let me get to that point.

Sports betting, and particularly the promotion of sports betting, is a topic like that of the elephant story: its topic is a mishmash of federal and provincial jurisdictions. Senator Dalphond identified this in his dialogue with Senator Deacon on Tuesday. On the subject of sports betting, the federal government has the power to criminalize that activity — which it did for a very long time, until 2021. It could include sports betting as a form of gaming, which it did in the 1980s, and legally transfer the oversight of it to provinces. It delegated authority to the provinces, who undertook the management of gaming, including sports betting. Additionally, Ottawa can regulate communications with respect to sports betting, which are conducted under the regulatory authority of the Canadian Radio-television and Telecommunications Commission, or CRTC.

The result of all of this essentially constitutional line drawing is that Ottawa has some meaningful authority over sports betting, but much of the regulation of gaming, including sports betting, is in the hands of the provinces. This explains why at least one part of the “gaming elephant,” if I can call it that, is a matter of provincial jurisdiction and why, for example, the Alcohol and Gaming Commission of Ontario announced that it would no longer be possible for sports-betting agencies to use celebrities in their ads. Similarly, British Columbia’s gaming regulator has taken steps to attach conditions to licences issued to sports betting agencies, which seeks to have a moderating effect on some of the issues that are concerning so many.

As I will mention in the final section of my remarks, there are things that provincial gaming authorities can and should do beyond what has happened so far that are within their and not Ottawa’s authority. But some parts of the gaming elephant are within federal jurisdiction.

Finally, the third section of my remarks: what to do when we come to the fork in the road. Some of you, hearing that phrase, might think of Robert Frost’s poem “The Road Not Taken,” but I would like to refer you to someone else. I commend to you today the consideration of a line from another great poet, Yogi Berra, who said — some of you will say it with me here — “When you come to a fork in the road, take it!” The fork in the road for me hints at the options for both the federal and provincial regulatory engagements on this issue. The advice, as you can tell from that great poet and constitutional expert Yogi Berra, is take both regulatory forks in the road.

How to get there: There are two federal asks in this bill. One is to direct the CRTC to develop appropriate constraints on advertising and promotion of sports betting in the areas where they possess federal regulatory jurisdiction. The other, led by federal cabinet ministers through widespread consultation, is the development of a national strategy to rein in the advertising and promotion of sports betting across the jurisdictional divide. This must be a wide-ranging project, for example, as Senator Marty Deacon noted, since research has informed us of the risks for vulnerable gamblers and young people, and those risks do not know jurisdictional boundaries.

Some examples of that, as she mentioned, are no advertising just before, during or after sports games; limits or bans on celebrities and athletes as promoters of gambling; no advertising during periods when young people are significant parts of audiences; and no presentation of ads in sports arenas or on players’ uniforms. Various European countries have undertaken variations of this. These approaches are set out in an excellent recent paper on the issue developed by a group led by former mayor of Toronto John Sewell and Dr. Bruce Kidd, a distinguished former Olympian and professor emeritus at the University of Toronto. My own research has captured a range of opportunities that are possible as well.

Dealing with the preservation of the integrity of sports, I will just make this one point: This wide-ranging national strategy should and could include an examination of the categories of sports that ought not to be allowed to be bet on, particularly where the athletes themselves are more susceptible to being bribed to throw or fix a game outcome. For example — and this has happened in other jurisdictions — the strategy could include the elimination of betting on amateur sports; no betting on college sports, as a number of U.S. states adopted when they received the authority in 2019 to regulate sports betting; and no betting on Olympic sports, a point that a number of proponents on this issue, including Dr. Kidd, have championed.

The reason for this needed national strategy is that many options are within provincial jurisdiction, a fork in the road that needs to be taken as well but that Ottawa can catalyze.

A broad cross-section of Canadian society wants action, from the deeply concerned parent about whom Senator Deacon spoke on Tuesday to the tens of thousands of viewers — it feels to me like I have heard from all of them — annoyed by the advertising onslaught, to those who have seen first-hand what addiction in any form can do to the lives and families of the vulnerable, to those who have given their lives and careers to sport and who worry that the object of their passion is being besmirched and its essence diminished, to sports ethics organizations like the Canadian Centre for Ethics in Sport, who worry that their commitment to healthy, safe, ethical athletic activity is being excessively and dangerously commercialized. Senator Marty Deacon’s bill gives us the opportunity to martial our resources — not to destroy an industry but to get it on the right path, a wisely nationally regulated path.

I support this bill and encourage you to do the same. Thank you very much.

(On motion of Senator Martin, debate adjourned.)

Hon. Brent Cotter: Senator Gold, thank you for your remarks and for your leadership on an important bill that is being considered by this chamber.

I’m a member of the Legal and Constitutional Affairs Committee, where it seems likely this bill will go, so I’ll have a decent number of opportunities to explore the bill, but I did want to ask one, what I would call, institutional question, in your capacity both as sponsor of the bill and as Leader of the Government in the Senate. You made reference to the five-year review and you used, I thought very carefully, the words “reviewed by Parliament.” But I think as you know, the bill calls for a review by the House of Commons.

I have in front of me here the clause, which is clause 2 of the bill, a review on the fifth anniversary to be carried out by a standing committee of the House of Commons.

This strikes me as not entirely respectful of this portion of Parliament, and in light of your endorsement of the confidence you have in the Senate, which I believe was part of your speech, I wonder if you could speak to what I would call an oversight. I would be interested in your view on that, especially since, as I seem to understand, the House of Commons didn’t study it at all in the first go-round.

Hon. Brent Cotter: Honourable senators, I don’t usually have an audience, so I’ll try to get this right. This has been an extremely unpredictable summer and, in some cases and in some places — as we have just heard — a tragic one. All of our hearts go out to those who suffered consequences of dramatic, unprecedented water events and weather events that brought such destruction and, in some cases loss of life, to Canadians in different parts of our country.

But today I want to say a few words about an international event that took place in July in Nova Scotia on the unceded and ancestral territory of the Mi’kmaq people that was both celebratory and uplifting.

From July 16 to 23, Halifax, Dartmouth, the Millbrook First Nation and Sipekne’katik hosted the tenth North American Indigenous Games. It was the largest and, to my mind, the most successful in the history of the games. Five thousand Indigenous athletes from 750 First Nations across the continent, with the support of 3,000 volunteers, took part in a range of competitions in 16 different events. Outstanding performances all.

I was in Halifax for part of the time that the games took place. I can tell you that the mood in the city was spectacular. Exuberant groups of young athletes in team uniforms were warmly greeted and welcomed throughout the city by the citizens of Halifax. Fans were cheering on local athletes and cheering on athletes from afar whom they knew not of.

Now sports is not everything, but it is often a window on our society, a window on the possible, a glimpse toward excellence and a glimpse sometimes toward reconciliation. To my mind, this glimpse was, to say the least, uplifting, both in the abilities and the commitment of these athletes but also in the welcome they received from the good people of Nova Scotia. Congratulations.

I would be remiss if I did not conclude these remarks by noting that of all of the contingents of athletes who participated in the games, the team that won the most medals — and I guess, therefore, won the 2023 North American Indigenous Games — was Team Saskatchewan. The games have been held 10 times, and Saskatchewan has only won 7 of them.

Congratulations to Nova Scotia, and congratulations to all of the athletes, coaches and officials who took part. Special congratulations to Team Saskatchewan and its chef de mission, Mike Tanton. Thank you.

Hon. Brent Cotter: Honourable senators, it’s a pleasure to be here. I’ll be mercifully brief today.

With respect to Bill C-51, let me begin by thanking Chief Darcy Bear, Chief of the Whitecap Dakota First Nation, and Councillors Dwayne Eagle and Frank Royal, who came to Ottawa to appear before our committee and meet with senators, enabling us to celebrate with them the achievements of this bill. Also a thank you to their policy adviser Murray Long, who joined them in that work and in their appearances both here and in the other place at committee. Also, congratulations and thanks to Minister Miller and his staff and to Federal Negotiations Manager Aayah Shadad and her team. Some of you were able to participate in briefings on this bill from Ms. Shadad. I was as well. They provided outstanding and insightful explanations of the bill to those of us who attended. I also want to extend thanks to each of you for agreeing to expedite consideration of this important bill. It means a lot to the people of Whitecap Dakota and it means a lot to Canadians, I think.

Briefly, to highlight the self-government treaty again, it does essentially three things. First, it brings Whitecap Dakota into the fold of Aboriginal peoples, pursuant to section 35 of the Constitution Act — a long-standing and unfair oversight to this First Nation and to a few others who are in the same category of essentially refugees from the United States, as you will recall, from a few hundred years ago. Second, it changes the official name of the First Nation to the Whitecap Dakota Nation; and, third, as a result of the name change, it enables them to transition out from under most aspects of the Indian Act.

This is a bilateral agreement between Canada and the Whitecap Dakota First Nation, but you should be aware that the Government of Saskatchewan — and the nation is located in Saskatchewan, just south of Saskatoon — does not oppose this agreement. In fact, there is a whole series of additional bilateral agreements between the First Nation and the Government of Saskatchewan that facilitate the effectiveness of the self‑government agreement.

Chief Bear described this at the hearings yesterday. This has always been a concern for many First Nations, namely, being able to enforce their own bylaws or band laws. The RCMP, for a variety of reasons, have been unwilling to do that in Saskatchewan in relation to Whitecap Dakota. However, there is an arrangement with the provincial government where they will make available community safety officers, who have law enforcement powers — not quite as enriched as policing powers but significant ones — and will provide that service. Those partnership agreements with the province are making possible this agreement not only to be lawful and meaningful but also to be highly effective, I think. That’s to the credit of Chief Bear and his team and also the Government of Saskatchewan.

Furthermore, this agreement helps to unlock what Senator Klyne was speaking about, namely, the power of this nation to be able to govern itself effectively. You heard the story about its successes over the last 30 years. This will continue the nation on that progress. Indeed, Chief Bear used the phrase, “This will make it possible for us to operate at the speed of business.” That’s a lovely phrase when you think about it. I think all of you have some, maybe deep, understanding of the way in which the Indian Act and various other colonial constraints have put handcuffs on First Nations who are keen to make both social and economic progress on behalf of their people.

My sense is that this orientation, a can-do attitude, an entrepreneurial spirit — all in the interests of the citizens of Whitecap Dakota — is exactly what can be achieved by acting on a commitment to reconciliation, to moving away from a century‑plus approach based on the imposition of colonial values and policies and a century-plus paternalistic attitude which the Indian Act tends to generate.

Adopting this bill will be a way of actualizing reconciliation for the Whitecap Dakota Nation and also a model of optimism for other First Nations and for Canada as a whole. I hope that you will support this bill and that we’ll be able to move it into actuality so that it can come into force in September, as planned.

Thank you very much.

Hon. Brent Cotter moved the adoption of the report.

He said: Honourable senators, this is a report on Bill S-12, which proposes amendments to the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. It is an important bill which is intended to respond to certain provisions of the Criminal Code that were declared invalid by the Supreme Court of Canada and certain other matters of public importance, particularly to victims of sexual crimes.

Your committee actively considered the bill, received four briefs over the course of five meetings and 12 hours’ deliberation and heard from 15 witnesses, including the Honourable David Lametti, Minister of Justice and Attorney General; witnesses from the law enforcement community; witnesses responsible for the sex offender registry; representatives of women’s organizations, victims’ organizations; and victims of sexual violence themselves. The testimony was impressive and powerful and in some cases moving.

As a preamble to this report, I note that this bill was introduced in the Senate, somewhat unusually for this type of bill. It was sponsored by Senator Busson; the critic is Senator Boisvenu.

One of the advantages of this bill coming to us first — turning us, in a way, into a chamber of sober first thought — was that there was a greater degree of freedom and openness in the development of amendments to the bill, including amendments from the government itself, through the good graces of Senator Busson. Many amendments were, in fact, presented by the sponsor with the support of the government. It was as though Minister Lametti was outside our committee room, listening to the witnesses and identifying ways in which he could support a good bill being made better. I don’t think he was actually there, but that’s the way I wanted to think about it.

Senators listened to the witnesses with care and developed amendments responsive to the concerns and ideas advanced in the committee hearings and in the briefs submitted.

Next, let me speak a bit about the bill and about the amendments to the bill that were adopted by the committee. The first is a bit of repetition of remarks at second reading. I’ll try to be succinct, but this is an important bill not just in what it does but in the statements it makes about the place of respect for and agency of victims in the criminal justice process.

A central dimension of Bill S-12 responds to the Supreme Court of Canada’s 2022 decision in R. v. Ndhlovu, which held that two provisions of the Criminal Code of Canada — that relate to the registration of sex offenders in the National Sex Offender Registry — are unconstitutional. Since 2011, the Criminal Code has required the mandatory registration in this registry of anyone who has committed a sexual offence, and it required anyone found guilty of more than one sexual offence to be registered in the registry for life.

The Supreme Court struck down the provision requiring mandatory lifetime registration for repeat offenders with immediate and retroactive effect. The provision relating to mandatory registration for all sex offenders was declared invalid, but the effect of that declaration was delayed by one year to give Parliament time to respond to that decision with legislation. The provision will become invalid in October 2023 unless Parliament responds effectively.

Bill S-12 amends the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act in seeking, in particular, to address the constitutional issues, but it also introduces some other provisions.

With respect to the registration of sex offenders in the national registry, serious child sex offenders and repeat sexual offenders will continue to be subject to mandatory registration. I should say that the nature of this registry is not quite like the Canadian Police Information Centre, or CPIC, which you may be more familiar with. This registry is one that is available to police to access in conducting investigations of potentially similar crimes and, I think in some circumstances, to prevent crimes. It is a fairly substantial registry that maintains a significant amount of information about sex offenders, and it is required to be updated; that is, sex offenders are required to submit to provide additional information to keep the registry, including their whereabouts and the like, current.

I mentioned that sex offenders and repeat sexual offenders are required to be mandatorily registered. All other sex offenders will be subject to a presumption of registration in the registry. Certain offenders may be able to rebut this presumption of registration if they can satisfy certain criteria and demonstrate that they do not pose a public risk. In those cases, a judge has the discretion to decide whether to order registration or not. These provisions of the bill — the ones related to the rules around registration and some moderation of the requirement — were adopted by the committee without amendment.

Bill S-12 also seeks to amend the Criminal Code as it relates to victims, including by providing them with opportunities to have their wishes considered when courts impose, vary or lift publication bans that protect their identity. Under Bill S-12, the victims will have the opportunity to indicate if they want to receive ongoing information about the offender after sentencing as well.

I think you will appreciate that publication bans were put in place — fairly aggressively — with the view of protecting the victim and their privacy from broadly based disclosure, but this bill tries to moderate and be more responsive to the interest of the victims. I’ll focus the remainder of my remarks on this aspect of the bill, as well as the amendments made by the committee to its various provisions. In these remarks, I will not take you through the details of the support for the amendments — other than to say they were generally supported, or urged upon us, by witnesses and their submissions. Modifications were made to these publication bans, particularly by the committee.

Clause 2 and clause 3 of the bill focus on this: The first raises the issue of the scope of the publication bans. The Criminal Code currently provides for a publication ban on information that could identify a victim or witness of a sexual offence, and states that the information cannot be published, broadcast or transmitted in any way.

The original Bill S-12 expanded this publication ban to state that the protected information could also not be “otherwise made available.” The committee removed this addition. The relevant Criminal Code section, then, remains essentially unchanged. Committee members were concerned that the phrase “otherwise made available” was too broad, and could even retroactively capture publications that predate a ban, such as information contained in news archives.

The second dimension of the publication ban in these amendments focus on victim input and information. I think these are critical in the way they try to better respect the wishes of victims. The Criminal Code currently requires a judge or justice of the peace, at the first reasonable opportunity, to inform the victim or underage witness of the right to apply for a publication ban. Clause 2 and clause 3 of the bill amended the Criminal Code to require a judge or a justice of the peace — who orders a publication ban — to inform the victim or witness that they are subject to a publication ban, and that they can apply to vary or revoke the ban. The witness or victim must be informed as soon as it is feasible.

The original bill also required a judge or justice of the peace, before ordering a publication ban — the words are important here — to inquire if the prosecutor had taken steps to consult with the victim before applying for the ban. The committee did not feel that this was a strong enough statement of the victim’s agency with respect to the victim’s position regarding the imposition of the ban. This is important for victims and witnesses because if a publication ban is imposed, it applies to them and severely limits their ability, if they wish to do so, to speak about the case or the experience.

Accordingly, the committee amended the bill to require a judge or justice of the peace to do the following: If the victim or witness is present, they must be asked directly if they wish to have a publication ban imposed, and not just be consulted; and if the victim or witness is not present, the prosecutor must be asked if they have determined whether the victim or witness wishes to have the publication ban imposed.

The amended provisions also now require a prosecutor to inform the victim or witness about the following: when a publication ban is imposed, the effect of the ban, the circumstances under which the information can be disclosed and how to avoid contravening the publication ban. The prosecutor must also inform the witness or victim of their right to revoke or vary the order. The prosecutor must then inform the judge or justice of the peace when they have satisfied this duty.

I hope you will feel that this raises the sense of agency and control over a matter of great importance to victims and witnesses in these circumstances, and that it is a good deal less deferential to the decision-making process of both prosecutors and judges.

Another dimension of this, which is important, is the potential vulnerability of people who might violate the publication ban, and this would be a criminal hardship that would focus, most likely, on the victim or witness. The flip side of publication bans is the potential for criminal liability imposed on people who violate the publication ban, and, in some cases, it feels like being put through the criminal justice mill twice.

The bill provided a degree of protection for victims and witnesses in this regard. The committee expanded this protection by amending the bill so that the victim or witness would not be criminally liable for breaching their own publication ban, as long as they did not intentionally or recklessly reveal the identity of another person protected under the publication ban. Similarly, a publication ban does not apply when a victim, witness or justice system participant discloses information but does not intend for it to be shared publicly.

There is also a dimension of these provisions relating to how one goes about varying or revoking a publication ban in the future. The original bill stated that the victim or witness could apply to the court to have a publication ban varied or removed, and the court was then required to hold a hearing. The committee amended this provision to facilitate the process for the victim or witness who wishes to have a publication ban varied or revoked. The amended bill introduces that obligation on the prosecutor. The amended bill by committee requires a prosecutor, when requested by a victim or witness, to apply to vary or revoke the order on their behalf, as soon as feasible, although it’s also the case that a victim or witness could still make that application on their own if they wish.

Furthermore, a court must vary or revoke the publication ban as requested, again strengthening the agency for victims and witnesses, unless it could affect the privacy interests of another person who is also protected by the publication ban, and, in that case, the court must hold a hearing to determine whether the publication ban should be varied or lifted.

It is important in this context to note that the accused is not considered to be one of the people protected by the ban. The amended bill specifies that the accused cannot make submissions relating to the lifting or revoking of the publication ban. This, in a way, is pretty obvious since the purpose of the publication ban is to protect the privacy interests of victims and witnesses, not the accused. The only part involving the accused is that they’re entitled to be informed if the ban has been lifted, revoked or varied.

Finally, with respect to another clause — clause 5, on publication bans, again, and criminal liability — returning to the issue of criminal liability for the breach of a publication ban, the committee also amended clause 5 of the bill to specify that a victim or witness should not be prosecuted for breaching their own publication ban, unless they knowingly breached the order and, in doing so, revealed information that could identify another person protected by the ban and a warning would not be sufficient in the circumstances.

It’s fair to say at this point that the committee has enriched the respect that the criminal law will show for victims and witnesses in these often very traumatic and life-altering circumstances for victims and witnesses.

Lastly, on the publication ban point, a new clause was —

Hon. Brent Cotter moved second reading of Bill C-51, An Act to give effect to the self-government treaty recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate and to make consequential amendments to other Acts.

He said: Before I begin, I want to acknowledge that Canada’s Senate is located on the unceded traditional territory of the Algonquin Anishinaabeg people.

I want to begin my remarks by talking about the War of 1812. Now, I wasn’t there, and I don’t think most of you were either, but it was a fairly important war. It was our only war with the United States of America, and you might recall that we won. Indeed, though lost to a degree in the mists of history, the political and governance structure of this continent and this country would be vastly different if that war had had a different outcome.

The Dakota were critical military allies of the British in that war. During the War of 1812, they defended what is Canada today and were presented with King George medals and promises that their lands and rights would be protected.

This was a major moment in an otherwise formative period of the Crown-Dakota/Lakota relationship that began in the mid-18th century, and in a context of increasing conflict between British North America and the United States.

In the years that followed, the Dakota did not feel particularly welcome — that is, those who resided in the United States — and Chief Whitecap was one of the leaders that journeyed north with his community to Canada. They wanted to remain part of a British territory and reminded authorities of the promises made to them.

It is an understatement to say that their commitment to British North America did not make them popular in the United States and, as I will emphasize later, since time immemorial the Dakota, and specifically the Whitecap Dakota, have governed themselves.

I will now say a few words about the history of the Dakota and, in particular, the Whitecap Dakota, and then a bit about self‑determination and self-government for the Whitecap Dakota First Nation and leading to this bill and agreement. In doing so, I hope to show why the bill we’re speaking about is critical to advancing reconciliation in Canada. I hope to show that, while some of the bill’s details might be new, the concepts of self-determination and self-government it is based on are not new. Indeed, what we’re doing is reviving what previously existed.

The Dakota are part of the Oceti Sakowin Oyate, the People of Seven Council Fires, which was an alliance of seven Dakota, Lakota and Nakota groups. These groups shared similar languages, history and culture and their territory spanned central regions of the United States and Canada.

The word “Dakota” means “friends, or allies” — meaningful in the context of the War of 1812, I think — and the Dakota/Lakota Nation successfully built alliances to establish peace and prosperity.

In the early 1860s, when many Dakota people sought refuge in the north, they were led by Chief Whitecap, Chief Standing Buffalo and Chief Little Crow. Chief Whitecap established his community along the South Saskatchewan River, and — you may find this amazing — went on to co-found the city of Saskatoon, my city.

Most of the bands are located in Manitoba and Saskatchewan. The Whitecap Dakota band is on a reserve about 30 kilometres south of Saskatoon. It is a small First Nation with a population of 692. It has a small parcel of reserve land, much smaller than other treaty nations in Saskatchewan. It’s near the South Saskatchewan River. It’s not on good land, and for more than a century the Whitecap Dakota struggled.

Let me speak a bit about its history, in particular dating to 1991, more recently, when Chief Darcy Bear became chief. The nation had an unemployment rate of 50%, its social and health services for its people were in tatters and the band’s finances were abysmal. Chief Bear told me recently that when he became chief, he was attending university and was in business school. As a student, he had a small amount of money in his bank account. By comparison, the band’s bank account had nothing and, in fact, it was overdrawn. He was, in a way, richer than his whole First Nation.

Where is the Whitecap Dakota Nation now? The band has developed services for its people in education, social services and health. It has established a range of business enterprises and it has an almost nonexistent unemployment rate. Among their best‑known businesses and enterprises are a First Nations casino — the most spectacular and successful in Saskatchewan — a world‑class golf resort and an adjacent hotel resort. When it opened, the Dakota Dunes Golf Links was selected the best new golf course in Canada. The Professional Golfer’s Association Tour Canada, or PGA, stops there every July.

The nation’s wise land management, a range of economic development initiatives and efforts to build a tax base for their own-source revenues is exceptional.

The Whitecap Dakota Nation is well known across Canada for this remarkable socio-economic development and the various successes of its business ventures and partnerships, many with the private sector and with the Province of Saskatchewan.

Though the reserve is small and the population, as I said, is only 692 people, its enterprises generate millions annually in own-source revenue for their community. This prosperity extends beyond Whitecap Dakota’s reserve and has significant benefits for neighbouring local businesses and the city of Saskatoon. For example, the on-reserve businesses employ as many non-First Nations people from off-reserve as there are citizens of the Whitecap reserve in total. About 650 non-members are employed at Whitecap; Whitecap is an economic engine for my city. In short, Whitecap is a strong, thriving community and has a long history of self-governance.

The Crown promised assistance and protection following their participation in the War of 1812. How did that work out?

Well, that promise was broken. Talk about breaking promises early. The war occurred in 1812, and promises were broken in the negotiations that concluded with the Treaty of Ghent in 1815 — three years later. These are the negotiations that ended the War of 1812.

The Dakota were not welcomed by the Crown as allies. Instead, they were permitted to stay in Canada but branded as “American-Indian refugees” in the decades that followed. When the Crown began entering into the numbered treaties with First Nations in Western Canada in the late 1860s, the Dakota were purposefully excluded from the numbered treaties.

As a result of unfair policy decisions made over a century ago, the Dakota have been denied formal recognition as Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982 — denied recognition as Aboriginal peoples until, hopefully, Thursday of this week. In every way but one, the Dakota nations have been treated as any other First Nation, Your Honour, and, generally speaking, the treatment has not been favourable. They were subjected to the Indian Act, residential schools, the Sixties Scoop, the pass system, the theft of their children, the reserve system and various other laws and policies that have failed Indigenous people and Canada writ large. The Dakota have shared in this experience and, at the same time, do not even have a constitutional foothold the way that other Indigenous communities have. They continue to exist today as “American-Indian refugees,” present in Canada at the pleasure of the Crown.

The Whitecap Dakota self-government treaty we’re talking about today in Bill C-51 will change all of that. It will reinforce the Dakota spirit of alliance, as was recognized way back when. What does the Whitecap Dakota Nation think of this bill? It is acknowledged to be the next step toward the First Nation’s vision of self-determination. The treaty is a product of 12 years of negotiations. Senator Arnot was an early proponent of this, and I hope he will speak about it himself in his remarks. It was approved by Whitecap Dakota membership through a community approval campaign that was aligned with their customary decision-making processes with 92% support in the fall. When, finally, the membership voted on this governance treaty, the vote was 100% in favour. Sounds fairly positive to me: strong community support.

What does Bill C-51 do? The bill does two things: First, it recognizes Whitecap Dakota as a First Nation pursuant to section 35 of the Constitution. This changes their status from refugees to an Aboriginal people recognized under section 35, correcting more than a century of injustice. Second, it removes Dakota Whitecap from the oversight of most aspects of the Indian Act and recognizes a range of governmental authorities for Dakota Whitecap in the self-government treaty. As we know, many federal laws and policies, including the Indian Act, have constrained First Nations governance.

First, the Indian Act imposed a colonial form of governance on Dakota Whitecap, and so many other First Nations, with limited forms of local administration. For decades, the Dakota Whitecap have been working to leave the Indian Act. They had a series of initiatives from 1989 to 2012 and have removed themselves, as if percentages matter, from about 35% of the Indian Act’s control over Whitecap Dakota — steps toward reclaiming self‑governance.

To replace this very large Indian Act framework in this treaty and self-government agreement, the governance treaty provides that the Government of Canada will recognize the First Nation and give it jurisdiction over core governance; membership; language and culture; lands management; emergencies; public order; peace and safety; taxation; environment; resource management; agriculture; public works and infrastructure; local traffic and transportation; wills and estates; education; health; licensing, regulation and operation of businesses; economic development; alcohol, gaming and intoxicants; landlord and tenant matters; and the administration and enforcement of Whitecap Dakota laws. It’s a pretty spectacular range of governmental authority.

I want to say a word or two about taxation, and here I will leave my prepared remarks, if I may.

One of the great constraints of the Indian Act and the Canadian relationship with First Nations, in my view, is that we have not moved to models like own-source revenues and the building of financially accountable governments. We have relied too much on transfers from Ottawa.

We need to build the models of government that communities need and want. One of the keys to that is building a taxation regime that a government can administer itself. From my briefs with government officials over the past few days, I understand the Department of Finance has been working to negotiate a complementary real property tax agreement and tax treatment agreement setting out the scope of Whitecap Dakota’s tax jurisdiction on reserve lands.

The department highlighted that Whitecap Dakota have proven successful with innovative taxation tools and powers and that these complementary agreements yet to come will provide the community with added taxation powers to advance this interest. In fact, the real property tax agreement set out in this legislation is the first agreement of its kind in the country.

Senators, this is good legislation. It puts decision-making power back in the hands of Indigenous governments to make their own choices about how to deliver programs and services to their own communities. The bill also, I should say parenthetically, renames the self-governing entity the Whitecap Dakota Nation. They lost their name when they left the Indian Act, and they needed a new one. This is the one the community wanted, and it is a good one.

This bill is a major step to revive self-governance and self‑determination for the Whitecap Dakota people who have contributed to our country for a very long time, and that contribution has not been well recognized. It is also an important step for reconciliation, moving past colonialism and paternalism, toward legislation grounded in equality and respect.

Honourable senators, I encourage you to join me in taking this next step.

Thank you, pidamayado.

Hon. Brent Cotter: Honourable senators, two eminent Canadian judges passed away this spring, the Honourable Horace Krever and the Honourable Coulter Osborne. I will speak about Horace Krever on another occasion. Today, I would like to pay tribute to Justice Osborne.

Coulter Osborne passed away on April 19 at the age of 88. Before his distinguished professional career as a lawyer and judge, Coulter was an outstanding athlete. He was a starting forward on Canada’s Olympic basketball team in 1956 in Australia, returning there in 2000 to carry the Olympic torch.

Coulter practised law with distinction for 20 years in Kitchener. He was one of the most outstanding lawyers of his generation in Ontario. Chris Speyer, a friend and admirer, described Coulter Osborne appearing before a jury:

Picture in your mind’s eye a Gary Cooper-like figure — endowed with unassailable natural ability, dispensing his unique brand of gentle persuasion. Juries loved him, judges liked him; his legal opponents respected him.

He was appointed to the Ontario Supreme Court in 1978 and shortly thereafter to the Ontario Court of Appeal, where he served as associate chief justice.

A colleague, Justice James MacPherson, described his judicial skills in this way:

In my 24 years on the Court of Appeal I can safely say that Coulter Osborne was, universally, the most respected judge on the court. The breadth of his legal knowledge, his good judgment, indeed his wisdom, made him an extraordinary leader.

After retirement from the bench, Coulter served as Ontario’s Integrity Commissioner, a continuing commitment to public service. What a distinguished career.

But Coulter Osborne was so much more than this. He was a kind, thoughtful and wise man, beloved within his family: His wife Barbara of 64 years, his three remarkable daughters — Julie, Mary and Katie — four grandchildren and recently one great-grandchild.

Coulter was a mentor to many in his own gentle way, unfailingly kind, with a warm, mischievous sense of humour that enveloped everyone in its embrace. Coulter Osborne had many friends and admirers, so many it’s hard to count. This friendship he bestowed upon many, and all who knew him were enriched by his presence in their lives.

I was one of those. Until COVID, I spent a week each year for over 20 years with Coulter and a small group of friends. I have reflected recently on my good fortune of having been a friend, and I’m saddened that he has died but grateful to have known him. I’m a better person for knowing Coulter Osborne, as are the many hundreds of others who had the chance to bask in the warmth of his friendship, kindness and grace. Thank you.

Hon. Brent Cotter moved the adoption of the report.

He said: The Judges Act applies to federally appointed judges, as many of you will know, who are often called superior court judges. This applies to judges, for example, of the Supreme Court of Nova Scotia or to the Court of King’s Bench of Saskatchewan, the Tax Court of Canada, federal courts, the Federal Court of Appeal, courts of appeal across the country and the Supreme Court of Canada. It doesn’t apply to provincial court judges. Those are governed in provincial jurisdictions.

This bill, Bill C-9, is intended to amend the Judges Act by modernizing the regime by which federally appointed judges are investigated for misconduct pursuant to the responsibilities of the Canadian Judicial Council. This would be a new system for judicial misconduct proceedings.

The objectives of this bill — as I hope we will hear eventually from its sponsor, Senator Dalphond — are to improve the effectiveness and efficiency of the system and, in turn, reduce delays and costs. Some of these, as you may conclude from earlier discussions when this bill was spoken to in this chamber, indicated that in some cases millions of dollars of public money have been expended in lengthy and sometimes questionable processes leading to consideration of judicial misconduct.

Key changes to the bill include the ability to impose sanctions other than merely the recommendation for removal from office; the limiting of a judge’s ability to seek judicial review; judicial review by the federal courts is replaced with an internal Canadian Judicial Council mechanism; and a right to seek leave to appeal directly to the Supreme Court of Canada.

The new Canadian Judicial Council misconduct process has five possible steps for the review of a complaint against a superior court judge. The proposed new process — and I will try to be brief here — begins with an initial screening by a council official. Any complaint that cannot or should not be dismissed as completely without merit is then reviewed by a review member followed by the review member being able to dismiss the complaint or refer it to a review panel. The review panel can dismiss the complaint or uphold it and impose remedies up to but not including removal from office, such as requiring an apology or mandatory professional training.

If a judge wishes to appeal the decision, they can appeal the decision to a reduced hearing panel for a matter that, ultimately, can go to a full hearing panel if it is serious enough to warrant potential removal from office. A full hearing panel functions like the public court with the process structured as an adjudicative and adversarial hearing. The full hearing panel determines whether a judge should be recommended for removal from office.

If the judge who is the subject of the complaint or the presenting counsel — that is, essentially the person, usually a lawyer styled as the prosecutor — wishes to appeal the full hearing panel decision, then that matter is referred to an appeal panel and that appeal panel functions like a Court of Appeal and has the same powers. If, ultimately, the appeal panel recommends removal from office, according to the version of the bill received in the Senate, the judge’s remaining recourse would be to seek leave to appeal to the Supreme Court of Canada. If the decision in favour of recommended removal from office is sustained and all of these options for appeal are exhausted, a recommendation for removal from office is reported to the Minister of Justice, who may place the question before both houses of Parliament to decide. It is a process intended to be rigorous but to respect judicial independence.

At committee, in consideration of Bill C-9, six amendments were made to Bill C-9. I will try to highlight them briefly so you will know the changes that were made for our consideration in the chamber.

All of the substantive amendments that were made to the bill apply to clause 12. Now that sounds like a simple matter. However, clause 12 has 81 sections. It is the heart of the change.

I will not read all 81 sections, but they make up the bulk of Bill C-9. That is where the changes are set out with one technical exception. The first amendment adopted by the committee, which appears in your report, is that various sections of clause 12 were amended at committee to add a layperson at every stage of the decision-making process in judicial misconduct consideration.

The bill provides for a layperson to be one of three members on a review panel, one of five on a full hearing panel and laypersons are now included in the decision making with respect to anonymous complaints and on what is called a “reduced hearing panel.”

The composition of the appeal panel was initially designed to be five judges. The amendment changes the composition of that appeal panel to three judges, one lawyer and one layperson.

The second amendment is in relation to diversity. The original bill stated in section 84:

As far as possible, the Council shall name persons who reflect the diversity of the Canadian population to the roster of judges and to the roster of lay persons.

There will be a pool of judges and a pool of lay people who will then be drawn upon to participate in the consideration of complaints against the judges, and the language “as far as possible” was thought to be a challenging, unfortunate and unnecessary phrasing. It was suggested that it weakened the commitment to diversity, and this amendment removed the “as far as possible” phrase.

A third amendment was the publication of decisions. An amendment was adopted at committee to require the Canadian Judicial Council to publish all decisions as soon as possible. Under the bill, the Canadian Judicial Council is already required to publish decisions and reasons of full hearing panels and appeal panels. This amendment goes further and will require the Canadian Judicial Council to publish all dismissals of complaints, and essentially provide the reasons for those dismissals of screening officers, reviewing members and review panels throughout the process.

A fourth amendment was related to sexual misconduct. In the original version of Bill C-9, complaints alleging sexual harassment or discrimination on a prohibited ground could not be screened out at an initial screening stage and had to go to the next level. Committee members were concerned that the phrase “sexual harassment” was too narrow and would not capture other forms of sexual misconduct. Various sections of clause 12 are amended to add “sexual misconduct” to the types of allegations that cannot be screened out at the initial stage.

The fifth amendment is related to disaggregated data collection. The committee also adopted a series of amendments to expand the collection of data and reporting requirements of the Canadian Judicial Council that address ethnic and national background, Indigeneity, race, religion, sex, gender and disabilities, as well as that the annual report capture a range of those reporting-by-category pieces of information.

Finally, an amendment was adopted by committee to restore the ability of a judge or the presenting counsel — that is, the prosecutor — to appeal directly to the Federal Court of Appeal prior to any consideration by the Supreme Court. The bill had limited a judge’s ability to appeal outside of the Canadian Judicial Council process other than with leave to the Supreme Court of Canada, and an additional level has been returned to the bill in this amendment. The amendment is intended to permit Canadian Judicial Council decisions to go to the Federal Court of Appeal, and then, ultimately, either the judge or presenting counsel would have the entitlement to seek leave to appeal that decision to the Supreme Court of Canada.

As well, there is a small coordinating amendment to align clause 16 with this last amendment, which brought back the Federal Court of Appeal into the picture.

In conclusion, let me say that this bill has an extensive series of amendments by the committee. The bill is the modernization of a 40-year-old or so process that has come under significant criticism, and I think it deserves this chamber’s consideration in modernizing the judicial misconduct process.

Thank you.