[Recorded by Electronic Apparatus]
Wednesday, December 13, 1995
.1535 
[English]
The Chairman: We'll start the meeting today.
First we'll deal with the steering committee report, which I think has been distributed to everyone. Are there any comments with regard to the steering committee report? This is to approve the times and budgets for travelling in Ontario and Quebec during the month of March. We've already done the February one for the Maritimes. That has been approved in a prior meeting. Are there any comments on that?
Mr. Knutson (Elgin - Norfolk): I move we approve it.
Motion agreed to
The Chairman: We'll now move to clause-by-clause consideration of Bill C-106. I think the amendments have already been circulated.
Clause 2 agreed to on division
On clause 3 - Purpose
The Chairman: We have an amendment on the government side. Is someone moving amendment G-1?
Mr. Knutson: I so move.
The Chairman: Is there any discussion or explanation?
Mr. Ramsay (Crowfoot): I understand that the amendment is to include the words ``will ensure a just and legal system that meets the changing needs of Canadian society''. Is that accurate?
Mr. Regan (Halifax West): Mr. Chairman, I have point of order. I think Mr. Ramsay said ``a just and legal system'', and it's ``a just legal system''.
.1540
Mr. Ramsay: I'm sorry, ``will ensure a just legal system.'' I would like to ask the officials how the commission can ensure a just legal system. Why are we placing this in this bill? What we would be saying is that the commission would be responsible for establishing or advocating or ensuring a just legal system when it's beyond the mandate of the commission to do that. How can the commission do that?
Mr. Russell MacLellan (Parliamentary Secretary to the Minister of Justice and Attorney General Of Canada): Mr. Chairman, the mandate of the commission is to do research in law, to dialogue with those throughout Canada who have expertise in various aspects of the law, to try to stay ahead of the needs of society. Sometimes we do fall behind in certain areas and the need for a change in the law is out there before we get a chance to really change the law.
What we want to do with this.... We feel that with the law commission this will go a long way to having a fair and just legal system because it will allow us to dialogue with these people who see the changes, who are specializing in particular areas. With the work they're doing, we can then encompass that in our changes to our legislation.
There was also talk about paragraph 3(b), which refers to ``the development of measures to make the legal system more efficient''. There were overtures that we'd say ``more fair and efficient''. At that point, we looked at it and felt the best amendment would be to line 19. This is the result of that amendment, and I would ask Deborah to comment on that.
Ms Deborah McCorkell-Hoy (Director, Law Reform Division, Department of Justice): Mr. Ramsay, the characterization of the clause is that the commission is to provide independent advice on improvements, modernization and reform. The advice is to ensure, rather than being a guarantee of ensuring. It's an advisory function. They themselves would not undertake ensuring; it's for the purposes of ensuring a just legal system. They would be providing advice. It's in the context of independent advice.
Mr. Ramsay: Mr. Chairman, I don't want to get hung up on semantics. It seems to me the goal of the commission is an honourable one that would lend itself toward the ensuring, but I don't see how the commission can ensure a just legal system. I can see its work lending itself toward those ends, but I have problems with the wording of this amendment because of that.
Mr. Regan: Mr. Chairman, I wonder if the government would consider the words ``foster a just legal system'', rather than ``ensure''. It seems a bit much to require this commission to ensure.
Mr. MacLellan: I understand what Mr. Regan is saying, but the fact is it's going to be a just legal system. The question is whether it's going to be contemporary or not, but it will be just. The whole basis of these changes is for justice. I don't think we can modify it, Mr. Chairman, because that is first and foremost what the Department of Justice will be dispensing - a just legal system.
Mr. Regan: The only point is that we're giving the commission the mandate to ensure this. I think it's.... The purpose of the committee is partly to ensure that, is it not?
Ms Cohen (Windsor - St. Clair): It's to give advice.
Mr. Regan: It just seems to me that ``foster'' is a more reasonable word than ``ensure'', but I'll leave it to you.
The Chairman: Before we go to Mrs. Ablonczy, is the purpose of this not to just restrict it to the legal aspect only? Is it included because, as it says now, we'll address the changing needs of Canadian society, which are very broad?
Mr. MacLellan: Exactly.
The Chairman: It's to give it a more restrictive meaning in line with the bill itself.
Mrs. Ablonczy (Calgary North): Perhaps I can add to the confusion. It may help everybody if we say ``will help ensure''. That makes it clear that this is a resource to assist the minister in reaching that goal, rather than putting the whole onus for ensuring the just legal system on the commission.
.1545
Mr. MacLellan: I think we've got to put it to the commission that it is to be a just legal system. I don't think we can use any weasel words or qualifications to detract from what has to be a just legal system in this country. I think it has to be a 100% just legal system.
Mr. Ramsay: I can't see, in spite of all of the good work this commission may do in the future, how it can ensure what it's saying here, because of the fact that the government doesn't even have to accept its recommendations. I think it's in an advisory capacity, and it does not have the power to ensure; it has the power to recommend. Making recommendations to the government would, in their view, ensure a just legal system, but it doesn't have the power to ensure that. They can only recommend those things they feel, in their view, would ensure it.
Mr. MacLellan: Mr. Chair, it says ``the law of Canada and its effects with a view to providing independent advice on improvements, modernization and reform that will ensure a just legal system''. That's the advice they're giving toward a just legal system.
The Chairman: It's toward a particular goal.
Amendment agreed to
Clause 3 as amended agreed to
Clause 4 agreed to on division
On clause 5 - Duties
The Chairman: On clause 5 we have amendment R-1 from the Reform Party. Who is moving that?
Mrs. Ablonczy: Yes, Mr. Chairman, I would like to briefly speak to that. This was to address our concern of wanting to make the commission as independent as possible. So the amendment would provide that the justice minister would appoint in consultation with the justice committee. That would give some broader perspectives to the constitution of the commission. Of course, it would give an all-party perspective, which would give a little bit of a broader input into the constitution of the committee.
Mr. MacLellan: I would like to say that it goes to the executive powers of government to give that kind of an undertaking to more or less reduce the power or the authority of cabinet. I don't know of any other legislation in which that commitment has been given. I think we'd be really infringing on the executive power of government in agreeing to that.
Of course the bill does state the commission will report through the Minister of Justice to Parliament, which would be to this committee. I see no reason, once the commissioners are appointed, why they couldn't be called to this committee to be interviewed or examined by the committee.
.1550
The Chairman: I'm wondering if any of the government officials could tell me if there is any authority in the committee to consult with any group, or whether it's simply to hear matters such as bills after they've gone through second reading. Is there any authority to consult, as is being suggested here?
Ms McCorkell-Hoy: Under the new parliamentary regulations there are new opportunities that have not been used before, but certainly the intention of the commission consulting with the minister is there is no onus on them to not consult with other groups. In fact in setting their agenda they will consult openly with a number of other groups. I've never seen it required in legislation that they consult with a parliamentary committee.
The Chairman: So under the existing clause there's nothing preventing them from consulting?
Ms McCorkell-Hoy: Nothing, no. In fact the commission will openly consult on all matters.
Amendment negatived [See Minutes of Proceedings]
Clauses 5 and 6 agreed to on division
On clause 7 - Responsibilities of the Deputy Minister of Justice
The Chairman: On clause 7 we have amendments G-2 and R-2. We'll take R-2 first.
Ms Ablonczy, are you proposing R-2?
Mrs. Ablonczy: Yes, Mr. Chairman.
The Chairman: Could you tell us what it's about?
Mrs. Ablonczy: Yes. Actually my previous comments apply to this amendment. It's simply again so the appointment process for the commission would be done in consultation with the justice committee.
The Chairman: I see. So they're the same arguments as for the other clause.
Mrs. Ablonczy: Yes.
Amendment negatived [See Minutes of Proceedings]
The Chairman: Ms Phinney moves amendment G-2. Are there any comments from the government officials or from Ms Phinney?
Ms Phinney (Hamilton Mountain): I'll explain what it is. It's just to add ``reflect knowledge of the common law and civil law systems''. We're doing this to ensure we make it explicit that the knowledge of the two juridical systems of Canada, the civil law and the common law systems, are taken into account with the selection of the commissioners.
The Chairman: Madame Venne.
[Translation]
Ms Venne (Saint-Hubert): I would like to point out to the committee that with this terminology, there is no guaranty that Quebec will be represented.
I would also like that someone explains to me the meaning of "represent various disciplines and reflect knowledge of the common law and civil law systems."
I would like someone to explain to me the word "collectivement" that appears in the French version and "knowledge". I have taken a few courses in common law but I never practiced in the common law system. I would like to know if it means somebody that spent some time in Winnipeg, as I have, or in Quebec, as some other people might have. I would like to know what you exactly mean with those two words.
.1555
[English]
Mr. MacLellan: This reflects a lot of comments Madame Venne made when we were discussing this clause. She mentioned she wanted some assurance there would be representatives of the civil code practice, particularly the bar in Quebec.
The Barreau du Québec also mentioned they were concerned that whereas in the Law Reform Commission, which was the predecessor organization, they had a representative of the jurists of the common law provinces, one from the civil law and also a member from the bar of each, they weren't assured this could be the case here, particularly when it's not necessary that the commissioners even be lawyers.
So we looked at it. We wanted to reflect both the common law and the civil law systems so that both would be represented, not only among the commissioners but on the advisory council as well. But we also wanted to assure that in subclause 7(3) we held true to the objective of ``broadly representative of the socio-economic and cultural diversity of Canada and represent various disciplines''.
We think with the wording we have there plus the wording that already exists in subclause 7(3), we will get not only representatives of the common law and civil law, but representatives of both genders and a good combination of those involved in law-making in Canada and some very interesting representatives from the lay group as well.
Mr. Ramsay: I was wondering if this would apply as well to the aboriginal peoples as far as their customs and cultural needs are concerned.
Mr. MacLellan: Yes. That's why we want to keep the wording there, because it does reflect all of Canadian society without narrowing it by having special areas. We want to keep the wording so it does reflect the whole of society.
The Chairman: Madame Venne.
[Translation]
Ms Venne: The amendment under study has nothing to do with the representation of Aboriginal peoples on the commission. It's probably what is meant, in the first part of subclause (3), by representing the cultural diversity of Canada. But the amendment proposed has nothing to do with our civil law and common law systems.
I come back to my question because I have not been given an answer about the meaning of the word "collectivement". Could that word mean that one person out of five would have a vague knowledge of both systems? Is it less than one of five?
[English]
Mr. MacLellan: Well, it does. You'd have to have a representation. It says ``represent various disciplines and reflect knowledge of the common law and civil law systems''. You may be theoretically correct that if it were someone who has a knowledge of the civil system and is practising in Winnipeg - that's the example you just used - it's highly unlikely that we would take somebody practising in Winnipeg as a representative of the civil law system. We would want to take a representative who is most involved in that type of system.
We're not putting any numbers in. That's done intentionally so we don't narrow it down and have it categorized. We want to have it open so we can have the best representation possible.
[Translation]
Ms Venne: We will see, Mr. Chairman, if the fact that we haven't specified that we should have a minimum of two will give us a minimum of one. We will see when we know who has been appointed!
.1600
[English]
The Chairman: Mr. Ramsay.
Mr. Ramsay: I'd like to point out that I do not see that clause, or the amendment to it, speaking indirectly or direction to the aboriginal people. I don't think they'd fit into the civil law, and they may not fit into the common law. Certainly we have not had any testimony from them. The cultural diversity is one thing, but the key element to the amendment is knowledge of the common law and the civil law systems, and I don't know if that applies to the aboriginal people or not.
Mr. MacLellan: Mr. Chairman, we want to represent all aspects of federal law. It may not be that one of the commissioners will be of aboriginal descent, but that's not to say that one or more of the commissioners will not have an understanding of the aboriginal concerns and law, particularly the new objectives in aboriginal law, such as healing lodges and so on. The idea is to have the understanding. It's the same with any bench in any of the provinces or the Supreme Court or federal courts in Canada: it's the understanding of the law and appreciation of the concerns and needs that we want to represent. I think that will be the case.
Amendment agreed to on division
Ms Phinney: I would like to address something to the parliamentary secretary on clause 7.
On that same subclause 7(3), we've already discussed in committee that we're not going to put in ``cultural diversity and gender''. Is there some place within the government hierarchy or system where we could put in something that would indicate gender? Is there some place to do that rather than here in the committee?
Mr. MacLellan: It's possible, but the problem is of course that this is a question in a lot of legislation. The perfect answer would be to start with the Interpretation Act. But what Ms Phinney says is correct: that was brought forward, and due to the fact that we finished the witnesses yesterday and we're doing clause-by-clause today, what we've decided to do at this point is say that we haven't found a way to do it that is satisfactory at present, but we are looking at it and quite possibly will bring forward something at report stage.
The Chairman: It's perhaps something for the new commissioners of the law commission to look at.
Ms Cohen: That will give them a start.
Clause 7 as amended agreed to on division
Clauses 8 to 16 inclusive agreed to on division
.1605
On clause 17 - Superannuation
Ms Phinney: I'd like to move that clause 17 of Bill C-106 be amended by striking out lines 17 to 20 on page 6 and substituting the following: ``The Commissioners are deemed to be''.
The Chairman: Any comments from the government officials on that?
Mr. MacLellan: Yes, Mr. Chairman. Making the commissioner a departmental corporation in the legislation, which is in clause 27, is sufficient to bring the entity into the Public Service Superannuation Act universe without any further legislation or regulatory direction. Further, the reference to the president being deemed to be employed in the public service for the purposes of PSSA section 17.1 may actually undermine the interpretation. It could do more harm than anything, so we've decided to delete it.
The Chairman: Mr. Ramsay, did you have a question?
Mr. Ramsay: That explains it.
Amendment agreed to
Clause 17 as amended agreed to
On clause 18 - Law Commission of Canada Advisory Council
The Chairman: On clause 18 I have amendment G-4, moved by Mr. Gallaway.
Mr. Gallaway (Sarnia - Lambton): I understand the objective of this is to ensure that we have a minimum of 12 people. As it reads, the Deputy Minister of Justice could be appointed and satisfy the particulars of that clause as written. In addition, the other clauses have been added, I believe, in accordance with some recommendations made by witnesses that we will not restrict membership to members of the legal community - although some would say that's a shame - and it should also reflect the socio-economic and cultural diversity of the country.
The Chairman: Any discussion or any questions with respect to that proposed amendment?
Mr. MacLellan: We want to do the same for the advisory council as we did for the commissioners. As Mr. Gallaway said, we want to again have representation from the socio-economic and cultural diversity of Canada.
Amendment agreed to [See Minutes of Proceedings]
Clause 18 as amended agreed to on division
On clause 19 - Advisory function
The Chairman: Mr. Regan moves amendment G-5 to clause 19
Mr. Regan: As the section presently stands, it's left to the discretion of the commission as to when and whether it consults or asks for advice from the advisory council. This would change that so that the advisory council would play a major role in determination of the strategy and the planning, agenda setting and so forth of the commission. So it gives the advisory council more ability to act on its own.
.1610
The Chairman: Are there any comments from the government officials?
Ms McCorkell-Hoy: The only thing I would add is that really what we were trying to do by introducing an advisory council was build into the legislation a consultative mechanism. If we don't give them a little bit more discretion, they can't provide that type of role.
Amendment agreed to on division [See Minutes of Proceedings]
Clause 19 as amended agreed to
Mr. Knutson: Can I jump in for a second?
The Chairman: Yes, Mr. Knutson.
Mr Knutson: I just want to suggest that we approve clauses 20 to 29 inclusive as a batch.
The Chairman: No, there's an amendment to clause 22. We'll go part way, Mr. Knutson.
Clauses 20 and 21 agreed to on division
On clause 22 - Audit
The Chairman: We have amendment G-6 moved by Ms Cohen.
Ms Cohen: I think you all know that for a long time I've been reading everything the Auditor General puts out. I have faxed to me immediately all of his testimony before any committee. As a result of that, I would like to move an amendment to clause 22 to add the words ``at such times as the Auditor General considers appropriate''.
In any event, the reason is that apparently an annual financial audit, according to the Auditor General, would be costly for such a tiny agency, so what they would like to do is allow the Auditor General to determine the timing of the audit. I of course will be there at all times to witness it.
The Chairman: Spot audits might be good because no one knows when they're coming.
Ms Cohen: That's right.
The Chairman: Is there any discussion?
Mr. Ramsay: Mr. Chairman, does the Auditor General have that type of authority in any other area?
Ms Cohen: In other legislation, where the agencies are very small, he frequently has that.
Amendment agreed to
Clause 22 as amended agreed to
Clauses 23 to 25 inclusive agreed to on division
The Chairman: We have a new clause 25.1, amendment G-7.
Ms Cohen: I was going to move that amendment, but I've changed my mind.
The Chairman: Who's moving it?
Ms Cohen: Nobody.
Mr. MacLellan: We were going to move it, but we found some problem with it. So we'll have to hold it and look at it again.
The Chairman: G-7, then, is not being moved.
I have no amendments with regard to clauses 26 to 30.
.1615
Clauses 26 to 30 inclusive agreed to on division
The Chairman: We have amendment R-3 for a new clause, 30.1. Are you moving this, Mrs. Ablonczy?
Mrs. Ablonczy: Yes, Mr. Chairman.
The Chairman: Would you like to tell us what it's about?
Mrs. Ablonczy: This came out of concerns raised by some of the witnesses that the previous law commission had not fulfilled its mandate in a couple of areas. This would add an accountability factor to the work of the commission in that Parliament would have a mandate to review it within a specified time. This is consistent with other acts, such as the Young Offenders Act, the Referendum Act, and others that have a specified review period built into the legislation. I think it would be appropriate to include it in this legislation as well, Mr. Chairman.
The Chairman: Thank you.
Does the department have any comments?
Mr. MacLellan: Yes, Mr. Chair.
This would be a parliamentary review, and that's not exactly what we were talking about. I think it was the Auditor General's review, was it not? Anyway, something the standing committee can do every year when it calls the Law Commission before it on estimates is to have a review of the Law Commission. I would assume that, as was the case with the Law Reform Commission, the Law Commission would be called each time on estimates and we would have the opportunity to review it at that point.
The Chairman: Would the concerns raised by this particular amendment now be met with the prior amendment G-6, requiring the spot audits by the Auditor General?
Mrs. Ablonczy: One of the things the Auditor General did raise, Mr. Chairman, was that the audit wasn't into a value-for-money kind of evaluation; it was simply an audit of accounts. The Auditor General felt that the value for money of the effectiveness of the whole program and plan of the commission should be reviewed. This would go to that concern.
The Chairman: I guess my question then, Mrs. Ablonczy, was whether the concerns you have would be met with the spot audits or audits by the Auditor General and then a review by the justice committee when dealing with the accounts of the Law Commission.
Mrs. Ablonczy: I guess it depends. If the spot audits are just of accounts, it wouldn't necessarily be a value-for-money audit. Is that not correct?
Mr. MacLellan: I would like Ms McCorkell-Hoy to comment on that.
Ms McCorkell-Hoy: One of the things that has occurred with respect to the discussion of this bill is that our minister, Minister Rock, has already undertaken to write a formal letter of commitment to the President of the Treasury Board that at the end of the first five years there would be an independent evaluation conducted of the commission's operation. So there has been an exchange of letters to commit the -
Mrs. Ablonczy: So this amendment would be consistent with what the minister has already determined he wishes to do?
Ms McCorkell-Hoy: That's right. In fact, it has already been released in a public communiqué that went out on the release of the bill.
Mrs. Ablonczy: So there wouldn't be any objection to the amendment going into the legislation?
Ms McCorkell-Hoy: Not in this form. The commitment was that there would be an independent evaluation, and an independent evaluation really looks at effectiveness, impacts, and relevancy and would be conducted by an independent evaluator. The report would be submitted to Parliament through the minister.
Mrs. Ablonczy: Would it be appropriate, then, to include that in the legislation?
.1620
Mr. MacLellan: Not in this form. With the undertaking that was given, I think it expressed the undertaking to Treasury Board that this would be done.
To put this in the legislation would set quite a precedent in this form, whereas we now have the mechanism to examine these commissions and these agencies when we are looking at the estimates, and whereas the Auditor General has the opportunity to do the financial audits whenever he or she deems it necessary or appropriate.
Mrs. Ablonczy: But that's not a value-for-money audit.
Mr. MacLellan: No, but it can.... Of course the value-for-money audit can be done by this committee when we ask what reports have been submitted in the last year and what has been done with these reports. I think the committee has the right to ask for that information.
Mrs. Ablonczy: In that case, there shouldn't be any problem with the amendment. It just makes it more certain that activity will be carried out.
Mr. MacLellan: The problem, Mr. Chair, is that it goes to the workings of the committee. If you have something in the Law Commission Act that's different from the legislation governing the RCMP, the Parole Board, or Corrections, I think that would not be in the interest of treating all these agencies in the same manner. Frankly, I would like to see a common denominator maintained.
Mrs. Ablonczy: If I might just speak to that, Mr. Chairman, the amendment directs the committee to review the provisions of the act, not the activities of the commission. That is consistent with legislation such as the Young Offenders Act, the proposed Referendum Act, and other acts where the provisions of the act need to be reviewed in the legislation to make sure they are actually meeting the needs.
With our society changing so quickly, I think it would be a very good direction to Parliament to make sure the commission is relevant and current at all times.
Mr. MacLellan: I understand what Mrs. Ablonczy is saying and I understand what she's doing. I think the minister understands as well. Frankly, I think the minister agrees, as the President of the Treasury Board probably does, that we have to have some ideas, particularly in the first five years, if it's to get off on the right track.
The problem, of course, certainly when you're talking about the Young Offenders Act, is that it isn't within a separate agency. It's a separate act, a separate piece of legislation under the direction of the Minister of Justice. But where you have the Law Commission, the RCMP, the Parole Board and so on, you have agencies that report to this committee every year for an accounting. All we have to do is ask them and they come with the information we want them to bring.
To give one set of rules for the Law Commission and not for the others would cause an imbalance. Frankly, I think it may be counterproductive. The others may start to say they don't have to do this because they don't have this legislation that requires them to do this. I'm a little concerned about that.
The Chairman: We'll have one more intervention by Mr. Ramsay, then we'll go to the question.
Mr. Ramsay: I wonder how this committee can properly evaluate the work of the commission if we don't have the powers to do anything but ask questions at a setting like this within a limited period of time. How can we adequately assess the work of the commission in this particular area if all we can do is ask questions about things we may not even know about? I guess the right way to put it is how can we ask questions about things we may not know anything about, but which the commission has been involved in?
Mr. MacLellan: I think we can ask a lot of questions, Mr. Chairman. The thing is, this is a standing committee and it's not really an investigating royal commission. With all of the agencies, we have the same power and we have a responsibility to review them all. You have the Auditor General doing what he or she has power to do, plus the undertaking of a review in five years from the minister in a letter. I think we've gone much further in regard to the Law Commission than we have in regard to any of the other agencies.
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Amendment negatived
The Chairman: Okay, that's not part of this clause. That was a new one.
We have clause 31. I have no amendments on clause 31.
Clause 31 agreed to on division
The Chairman: We have clause 1.
Clause 1 agreed to on division
The Chairman: We have R-4, an amendment proposed on the preamble. Mrs. Ablonczy, are you proposing R-4?
Mrs. Ablonczy: Yes, Mr. Chairman, I am. The preamble, as it now reads, talks about extensive consultation. I think the evidence before the committee suggested that the claim in the legislation is a bit excessive. I think it's also inappropriate for legislation to be self-congratulatory, or mere puffery, as lawyers would call it.
It would go far to the integrity of the legislation simply to strike those words, Mr. Chairman. So that is the proposal in the amendment.
The Chairman: Mr. MacLellan.
Mr. MacLellan: On the wording ``WHEREAS, after extensive national consultations'', the department feels this wording should remain because in fact there were extensive national consultations. There were 1,500 questionnaires sent out across Canada. I think all members of Parliament received one. That's just to members of the legal community. There were also over 200 sent over to jurists right across the country for their opinions. There were also sessions held in Atlantic Canada and the prairies on this commission and the idea of a commission such as this, a replacement for the Law Reform Commission. There was also a meeting in Toronto. Dialogues were held with members from Ontario, Quebec, and British Columbia.
So there have been extensive consultations, and I think the department wants to reflect this in the preamble.
Amendment negatived [See Minutes of Proceedings]
The Chairman: Shall the preamble carry as it stands?
Some hon. members: Agreed.
Some hon. members: On division.
The Chairman: Shall the title carry?
Some hon. members: Agreed.
Some hon. members: On division.
The Chairman: Shall the bill as amended carry?
Some hon. members: Agreed.
Some hon. members: On division.
The Chairman: Shall the chair report the bill with amendments to the House as the 13th report of the committee?
Some hon. members: Agreed.
The Chairman: That's the end of the meeting. Thank you very much. Merry Christmas to everyone.
The meeting is adjourned until next year.