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: Honourable senators, I rise to speak to Bill S-16. This bill is not merely a legislative formality for the Haida Nation but a profound commitment to the principles of justice, recognition and self-governance. It continues a pivotal shift of our nation’s approach to Indigenous rights and sets a precedent for similar initiatives across Canada.

The introduction of Bill S-16 is rooted in a comprehensive effort to reconcile past injustices faced by the Haida Nation and other Indigenous peoples. This bill arises from the foundational Nang K’uula • Nang K’úulaas Recognition Agreement and is an integral component of the broader “Changing Tide” Framework for Reconciliation worked on for many years by the governments of British Columbia, Canada and the Haida Nation.

These frameworks are designed to not only acknowledge the sovereignty and traditional governance of the Haida people but to integrate these elements into the legal fabric of Canadian society.

I would like to speak briefly to three aspects of what we are doing this week.

First, I will speak about the legal framework and detailed provisions of Bill S-16. These focus on the governing powers and legal status of Bill S-16, based in section 4 of the act, which stipulates that “. . . the Haida Nation exercises its governing powers —” in accordance with its Constitution “— through the Council of the Haida Nation.” This is the recognition dimension of the bill.

Currently, the Council of the Haida Nation’s legal status exists through its registration under the Societies Act of British Columbia, along with the British Columbia Society for the Prevention of Cruelty to Animals and, I presume, the Knights of Columbus and so on. It could be called an unusual way to legalize a government if it weren’t so insulting.

This legislative initiative is critical, as it rectifies these historical oversights and formally recognizes the inherent governance rights held by the Haida Nation. This acknowledgement of these rights in Canadian law is overdue and essential for true reconciliation — forming a relationship based on respect, sovereignty and equality.

Specifically, this provision ensures that the governance conducted by the council aligns with the established and in-place constitutional framework of the Haida Nation, providing a solid legal foundation for its operations. Building on this foundation, section 5 recognizes the Council of the Haida Nation as an entity akin to a natural person, not just a recipient of rights and powers that are somehow delegated to it by some other government. This recognition is pivotal as it grants the council the legal capacities necessary for effective governance, such as entering into contracts, acquiring property, managing assets and initiating legal proceedings under Canadian law.

Second, the legislation establishes through these recognition agreements the potential for future jurisdictional negotiations. Indeed, this is one of the main purposes of the recognition act going forward. The enactment of Bill S-16, the Haida Nation recognition act, significantly enhances the Haida Nation’s capacity to negotiate over key sectors that are vital to their community and environmental sustainability. This will occur through negotiation between Canada, British Columbia and the Council of the Haida Nation, rather than the alternative: litigation.

Categories of potential negotiations could include, first, natural resources management. The Haida Nation will have the opportunity to assert greater control over the extraction and management of natural resources within their beautiful territories. This could include negotiating terms for mining activities, forestry operations and the sustainable harvesting of marine resources. These are central to the traditional way of life and economic sustainability of the Haida people.

With the legal backing to enter into contracts and agreements, the Haida Nation can ensure these natural resource projects are conducted in ways that are respectful of their environmental standards and cultural significance. Which leads to the next topic of potential negotiation: cultural heritage protection.

The legislation provides a framework for the Haida Nation to actively manage and protect their cultural heritage. This can involve negotiating for the return of culturally significant artifacts, establishing museums or cultural centres and managing historical sites. Beyond preservation, the Haida Nation could develop cultural tourism, creating educational programs and experiences that share their history and culture with a wider audience, thus generating revenue while also controlling the narrative and integrity of their cultural exposure.

Senator Busson described both the emotional experience of visiting the Haida Nation recently and the powerful significance and need for the preservation of Haida culture.

With respect to economic development and investment, Bill S-16 allows the Haida Nation to initiate and participate in economic development projects directly. This could include the development of Indigenous-owned businesses, partnerships with external investors and the creation of joint ventures which align with the nation’s economic goals. The ability to engage directly in the commercial market provides a platform for economic self-sufficiency and the potential to create jobs and business opportunities within the community and in accordance with the community’s values.

Another topic is education and social services. With recognized governance capabilities, the Haida Nation might negotiate jurisdiction over educational and social service provisions to their people. This is common in a number of other negotiated agreements across the country. This could lead to the development of education systems that incorporate Haida language, culture and history and tailor educational content to better reflect and serve the community’s needs. Similarly, in social services, programs can be uniquely designed to address the specific challenges and circumstances of the Haida community, from health care to housing and so on.

I turn lastly to my third point and some broader implications for other First Nations. As with the bill we passed last June in relation to the Whitecap Dakota First Nation, the successful implementation of Bill S-16 will set a precedent for First Nations across Canada in similar circumstances to the Haida Nation who seek similar recognition and negotiation powers. It illustrates a clear pathway toward enhanced autonomy and can serve as a model for others in their negotiations with federal and provincial governments.

In conclusion, Bill S-16, the Haida Nation recognition act, represents a significant step forward in a commitment to the rights and governance of the Haida Nation. By endorsing this bill, the dedication to a partnership that respects the sovereignty and dignity of the Haida people is affirmed, setting a standard for how Canada engages with Indigenous nations and fostering a future that embraces equality, respect and mutual benefit.

This bill is not merely a resolution but a pivotal advancement in a much larger journey toward full reconciliation and robust partnership. The legislation provides a framework through which the Haida Nation can exercise significant control of its natural resources, cultural heritage and economic and social development. It marks an essential progression in acknowledging and institutionalizing the inherent governance rights of the Haida Nation. It is a real step on the road to reconciliation, and I urge all senators to support it. Thank you.

Hon. Brent Cotter: Honourable senators, I rise to speak as the critic on Bill C-280, An Act to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act (deemed trust — perishable fruits and vegetables).

I realize I have as much as 45 minutes today. I want to tell you that my speech is 21 pages long. I could call out the pages as I go, if you like.

I want to start on page 0. When I came to the Senate, I confess that I was surprised that I had, almost by accident and by experience in my career, bumped into many of the issues that we are addressing here, and I used to sit over in that corner in the nosebleed seats. I was there with former senator Judith Keating. We would compare notes on, remarkably, the kinds of things that we knew and perhaps didn’t even know that we knew.

One of the things I learned from former Senator Keating during those conversations was why she had asked Senator Percy Mockler to be her sponsor. I am sorry that he is not here at the moment. Some of you who are new to the Senate may know that former Senator Keating unfortunately passed away after only serving here for a couple of years. The temerity of the question was on my part, to ask her why she had asked Senator Percy Mockler to be her sponsor. She told me the reason was that, although she may not have agreed with everything that Senator Mockler stood for, she wanted to be a senator just like Percy Mockler.

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: Will Senator Gold take a question or two on this bill and the amendment?

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: Honourable senators, as another member of Senator Quinn’s national unity Senate, I rise to speak in support of Bill S-273, An Act to declare the Chignecto Isthmus Dykeland System and related works to be for the general advantage of Canada. I endorse Senator Coyle’s remarks, and the remarks of others, on the constitutional wisdom of doing this in such a declaration, unlocking the federal government’s engagement on a very important national unity project.

I would like to come at this in a slightly different way, if I may.

Colleagues, I’d like to invite you to come on a trip of the imagination with me for the next few minutes. Imagine, if you will, that it is the summer of 2043 — 20 years from now. We are watching a couple travel through New Brunswick on a Maritime vacation, and, through magic, we are able to listen in on their conversation.

They have reached the eastern end of New Brunswick. The driver says to her partner, “Well, shall we turn north and go across the Confederation Bridge to Prince Edward Island?” “No,” says her partner, “we agreed that we would go straight east and take the new expensive bridge to the island of Nova Scotia.” “Okay. Fair enough,” says the driver.

“While I was gassing up” — sorry, it’s 2043, so she says — “While I was charging up the car, the attendant was telling me that this new bridge to Prince Edward Island was built mostly for the benefit of Nova Scotians, and was therefore named the Brian Mulroney-Allan J. MacEachen Bridge, or the Mulroney‑MacEachen Bridge. The attendant was saying that locals around here call it the Eminem Bridge, and if you’re a Liberal or a Conservative, your view is it tastes one half delicious, one half awful.”

The driver’s partner says, “You know, I was remembering about this bridge. There was a former senator, Jim Quinn, now in his dotage, who had different ideas about this area. In fact, 20 ears ago, when he was a senator and raised those ideas, some thought he was in his dotage then. But it turned out, he was a visionary.”

“Before Nova Scotia became effectively an island,” one says to the other, “this whole area was known as the Chignecto Isthmus.”

“Let me say that again: the Chignecto Isthmus. This word must be one of the hardest words to pronounce in the English language, like half of the consonants in the alphabet have been stuffed down your throat.”

“Anyway,” she says, “I read a few things about the Chignecto Isthmus, and what it used to be able to do to connect Nova Scotia to the rest of the country before it was overtaken by water from the Bay of Fundy and the Northumberland Strait.”

Let me now take you back to the present: During the late summer, my partner Elaine and I took a short vacation to New Brunswick, which was spectacular. This is me auditioning for a post-Senate job with the New Brunswick tourism authority. More seriously, though, as we drove from Nova Scotia to New Brunswick across the Chignecto Isthmus, with water edging closer on both sides, she said, “This is a disaster waiting to happen.”

I think she is right. And, as you heard from Senator Coyle and others, we are not alone.

The Chignecto Isthmus is situated slightly above sea level — a network of dikes, originally installed in the late 1600s, currently protects communities, though barely, as well as infrastructure, private lands and natural resources, from rising sea levels.

There is not so much left of that protective dike system to my eye. Indeed, it felt — to me — like the raised railway line was the largest protection in that whole stretch of land.

The Trans-Canada Highway through there is a key tourist route, as we have heard, which facilitates travel for tourists visiting Nova Scotia and Newfoundland.

Last year, Nova Scotia welcomed 1.9 million visitors; 1.2 million of those visitors arrived by that road — almost every single one of them. More significantly, and not entirely mentioned, the Izaak Walton Killam, or IWK, Health Centre, located in Halifax, provides care for Maritime youth, children and women from Nova Scotia, New Brunswick, Prince Edward Island and beyond. The IWK is the largest facility caring for children, youth and adolescents, and is the only Level 1 pediatric trauma centre east of Quebec. The IWK receives approximately 29,000 patient visits in the emergency department every year, and 5,000 babies are delivered each year in that centre, including — years ago — my daughter.

The Chignecto Isthmus has been recognized regionally, nationally and internationally as a critical wildlife corridor. It provides the only terrestrial connection between Nova Scotia and the rest of North America, as we’ve heard. The passage of animals and plants across this corridor is critical in terms of future environmental health and protection in that whole area. It also plays an important role in maintaining healthy wildlife populations over the long term.

As you have heard, it is a critical transportation route. The value of goods and merchandise transported through that corridor as well as revenues generated in corridor activity are estimated to be $35 billion per annum. Even now, when an extreme weather event results in the closure of the Isthmus for periods of time, the losses from an economic, social and sometimes health point of view are substantial.

There are compelling arguments, as you are hearing, for the preservation of the Chignecto Isthmus in economic, social, environmental and nation-building ways, I would say. Indeed, the only argument I can think of for letting the challenges of nature take their course is that we might one day be able to remove the words “Chignecto Isthmus” from our language. However, for every other good reason, particularly in the way in which we might empower our national government to make a meaningful statement of national unity and respect for all of the regions of the country, I would be more than willing to keep on saying the word “isthmus” for the sake of the benefit of Nova Scotians and all of Canada.

I hope you will join me in that. We might have to practise pronouncing the word, but we will all be better for it. Thank you very much.

Senator Cotter: The research that was provided to me was the late 1600s. I think they have slightly deteriorated since then.

(On motion of Senator MacDonald, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gold, P.C., seconded by the Honourable Senator Gagné, for the second reading of Bill C-232, An Act respecting Arab Heritage Month.

Senator Cotter: I certainly would.

Senator C. Deacon: Thank you, Senator Cotter and Senator Coyle, for your excellent speeches.

Just for my and others’ benefit in the chamber, could you just repeat when the first dikes were built in the Chignecto Isthmus so that we clearly hear that date?

Hon. Brent Cotter: Honourable senators, on a sad day, as we honour the passing of our colleague Ian Shugart, I want to turn, though, to a moment of celebration.

I rise to speak about curling in the presence of curling royalty. You would not know it to look at me today, but I was once a competitive curler and curled once in the Brier in 1981. I can hear you asking, “How did you do?” Well, a partial answer is this: After eight games in the competition, we had zero wins and eight losses.

Over the decades since, people like me were driven out of curling when true athletes were let in. So let’s jump ahead a generation to an era when native Nova Scotian Beth Iskiw, Allie Iskiw’s mother, was one of the outstanding skips and then thirds in women’s curling. She represented both Nova Scotia and Alberta in numerous national championships and, upon joining a team in Alberta as third, was part of the 2012 Scotties Canadian women’s champions and bronze medallists at the world championships.

The team Ms. Iskiw joined was skipped by Heather Nedohin, Alyssa Nedohin’s mother. During that era, Heather Nedohin was one of the top skips in our country, representing Alberta on a number of occasions in the Scotties Tournament of Hearts, and she was national champion twice. And, if I may say so, she had one of the most beautiful curling deliveries ever — far more beautiful than her husband’s.

This brings me to Alyssa Nedohin’s father, David Nedohin. David Nedohin will, perhaps, be known to you, but not as well as he should be. He threw the fourth — or skip’s — rocks for the Ferbey Four, a team named after Randy Ferbey. This team won four Canadian men’s championships in the early 2000s and three world championships. Last month, the team was inducted into Canada’s Sports Hall of Fame.

If you know anything about curling, you will know that the fourth — or skip’s — rocks, are by far the most important shots that a team executes during a game; as a former lead, it pains me to admit this. Dave Nedohin’s skip’s rocks led that team to those four Brier and three world championships. During those six or so years, Dave Nedohin was, indisputably, the best curler in the world.

Today, we have before us the future of women’s curling in Ms. Plett, Ms. Nedohin, Ms. Fediuk and Ms. Iskiw. These four young women of incredible talent, intellect, commitment and determination have rocketed to the forefront of women’s curling. My daughter and I follow their exploits, and earlier this week she reported to me that Team Plett, although still at a tender age for a curling team, has broken into the top 100 women’s teams in the world.

Let me end on this point: It is said that talent is passed down through the generations. That seems to be the case here. If so, we can only be grateful, Ms. Plett, that your inheritance of curling talent skipped right over your grandfather and landed in you.

Thank you.

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: Honourable senators, I rise to speak to Inquiry No. 5 to draw attention to the budget entitled A Made‑in‑Canada Plan: Strong Middle Class, Affordable Economy, Healthy Future.

Specifically, I want to speak to the importance of the national anti-hate action plan announced in the 2023 budget, and its impact on 2SLGBTQIA+ communities.

I enjoy hearing myself speak — it’s conceivable that some of you do as well, but I think you and I would be better off today if I didn’t, and instead listened to the thoughtful, insightful and moving remarks on this issue being delivered by senators in this place. I’m honoured today more to be listening than to speak.

This is an issue that is both deeply personal and profoundly universal for many of us. As we gather in this chamber, we must recognize the urgency of the matter and the responsibility that we bear — as representatives of the Canadian people — to give voice.

The human rights of all individuals are universal and indivisible. As stated in Article 1 of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights.”

Yet, for many in the 2SLGBTQIA+ community, this fundamental truth remains elusive for them. Hate crimes, discrimination and violence against these individuals persist, both within our borders and beyond. In 2022 alone, the Trans Murder Monitoring report indicated that there had been 327 deaths globally — 95% of those murdered being trans women. Most of these victims were marginalized, further underscoring what we already know: Hate manifests most among those of us who are pushed to the edges of our societies.

Canada is not immune to these challenges. A 2020 study in Canada found that trans Canadians were more likely to experience violence and inappropriate behaviours online and at work. In 2023 alone, we have witnessed hate-motivated vandalism of pride flags, hate-fuelled protests and even the exclusion of pride flags from municipal properties and from the tape on hockey sticks.

Sadly, this past year, we’ve also seen a significant and insidious rise in the politicization of discussions about sexual orientation and gender identity of Canadian youth. Some of you have spoken to this already. Several provinces have rolled out or are considering legislation targeting the treatment of gender‑diverse youth in our education systems, and I want to primarily speak about young people in the remaining part of my remarks.

My sense is that this politicization of our youngest, most vulnerable citizens is concerning and, indeed, unacceptable. A study was pointed out to me by Senator Cormier, which helps to illuminate this concern. It was a study of student wellness for New Brunswick. It polled students from grades 6 to 12, or children aged 12 to 18 — those are hard years for many of us, regardless of the extenuating circumstances.

I want to read out a few sobering findings, if I may: The first will be the average response among students, and then the response provided by LGBTQ2+ students. Students were asked if they felt lonely most or all of the time. The average response rate was 28% said yes. For LGBTQ2+ students, 51% felt lonely most or all of the time. These are messages of alienation and vulnerability, I think.

With respect to difficulty sleeping most or all of the time, the average was 65%. For LGBTQ2+ students, it was 80%. In regard to the ability to communicate in the communities, and if people in those communities can be trusted, 55% of students said yes. Of the LGBTQ2+ students, 42% said yes. In regard to if you can ask for help from neighbours, the average was 66%. For LGBTQ2+ students, it was 53%.

In every one of these cases, there was a statistically significant difference in the wrong direction for support for these vulnerable young people. The evidence is clear, and the need for heightened protection of minors has been clear even in the Supreme Court of Canada jurisprudence, which has stated unequivocally that “Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law.”

Let me offer an aside: You hear this debate between parental rights and children’s rights, and maybe the argument being advanced is that somehow parental rights should trump children’s rights. Well, let me tell you what we do in every province in this country: We have laws that protect children — I have an audience of one back here.

Thank you, Senator Simons.

We have laws, so much so that it is an obligation that if you — as a citizen in this country — discover that a child is in need of protective services, you are obliged to report that to the authorities. If you fail to do so, you commit an offence. So be damned with this line of argument that somehow children’s rights have to be modified.

In this society, to our credit, we place them on a very high pedestal, and we should not stop.

Senator Cotter: If I may, I have a jurisdiction question, Senator Tannas. The language in the preamble speaks to the inherent right of First Nations and the like, along the lines that Senator McCallum had raised earlier, but the bill is actually structured to be a delegation under the Criminal Code, so I’m curious about that.

Another dimension of this is that the structure of the bill says that when a First Nation gives notice to Canada that it intends to establish a gaming regime on its reserve, that First Nation, for the purposes of gaming, is deemed to no longer be part of the province in which it’s situated. It struck me as a unique provision that First Nations, for certain purposes, are deemed not to actually be part of the province anymore. I wonder if you could speak to those jurisdictional questions.

Senator Cotter: Thank you.

This is a fascinating initiative, Senator Tannas. It raises a variety of fascinating potentials and also some challenges.

I want to begin by channelling Senator Batters, if I might. In Saskatchewan, there are casinos on reserve — on roughly five reserves. Every dollar that is earned in those casinos goes back to First Nations communities now as is.

Second, that money is distributed, pro rata, to all the bands in the province, even the ones in the Far North that could never sustain a casino even if they wanted one; there would be no customers.

So empowering individual First Nations that are in attractive geographical locations to have the jurisdiction to operate their own casinos seems to be, quite frankly, a disruption of that fairly equitable arrangement in Saskatchewan. The band outside of Saskatoon — my good friend and yours, Darcy Bear, oversees a casino on the White Cap Dakota reserve, but the money that casino makes gets pooled in a province-wide arrangement. It seems to me that your proposal makes it possible that Chief Bear could carry on with his casino and keep all the profits, which would be great for White Cap Dakota — as it is for some First Nations around Phoenix, for example — but it is not so good for the rest of the province.

Could you comment on that?

Senator Tannas: Yes, and you’re right —

Senator Cotter: Internationally, Canada has been a vocal advocate for the rights of marginalized communities, and we’ve engaged constructively at both bilateral and multilateral levels, worked closely with civil society organizations and supported international assistance programs that advance the human rights of queer and transgender people.

Yet, as we reflect on these statistics and our efforts, are we doing enough? It seems to me that the answer, unequivocally, is no. We must do more.

This is why I want to, once again, highlight the importance of consultation with the 2SLGBTQIA+ communities in the development of the national anti-hate action plan announced in the budget. Through this work, and the work of so many Canadians, we will create a Canada where every individual is free to be themselves, particularly for young people to grow up to lead fulfilling lives without fear or prejudice.

Thank you.