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37th PARLIAMENT, 3rd SESSION

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

EVIDENCE

CONTENTS

Thursday, March 11, 2004

0905

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.))

Hon. Irwin Cotler (Minister of Justice and Attorney General of Canada)

0910

0915

0920

0925

The Chair

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, CPC)

The Chair

Mr. Peter MacKay

Hon. Irwin Cotler

The Chair

Mr. Peter MacKay

The Chair

Ms. Paddy Torsney (Burlington, Lib.)

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

Hon. Irwin Cotler

0930

Mr. Peter MacKay

Hon. Irwin Cotler

Mr. Morris Rosenberg (Deputy Minister and Deputy Attorney General, Department of Justice)

0935

Mr. Peter MacKay

Mr. Morris Rosenberg

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

The Chair

Mr. Peter MacKay

Mr. Morris Rosenberg

Mr. Peter MacKay

Mr. Morris Rosenberg

Mr. Peter MacKay

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

The Hon. Irwin Cotler

0940

Mr. Terry Beitner (Director, War Crime Section, Department of Citizenship and Immigration, Department of Justice)

Mr. Richard Marceau

Mr. Terry Beitner

Mr. Richard Marceau

The Hon. Irwin Cotler

0945

Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice)

The Hon. Irwin Cotler

0950

The Chair

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Hon. Irwin Cotler

0955

Hon. Lorne Nystrom

Hon. Irwin Cotler

Hon. Lorne Nystrom

Hon. Irwin Cotler

Mrs. Josée Touchette (Assistant Deputy Minister, Department of Justice)

1000

The Chair

Hon. Lorne Nystrom

Hon. Irwin Cotler

Ms. Carolina Giliberti (Director General, Department of Justice)

Hon. Irwin Cotler

The Chair

Hon. Sue Barnes (London West, Lib.)

1005

Hon. Irwin Cotler

1010

The Chair

Mr. Morris Rosenberg

Hon. Sue Barnes

The Chair

Mr. Peter MacKay

Hon. Irwin Cotler

Mr. Peter MacKay

1015

Hon. Irwin Cotler

Mr. Peter MacKay

Hon. Irwin Cotler

Mr. Peter MacKay

Hon. Irwin Cotler

Mr. Peter MacKay

Mr. James Bissell (Assistant Deputy Attorney General, Department of Justice)

1020

Hon. Irwin Cotler

Mr. Peter MacKay

The Chair

Hon. Irwin Cotler

The Chair

Ms. Paddy Torsney

Hon. Irwin Cotler

1025

The Chair

Mr. Richard Marceau

1030

The Hon. Irwin Cotler

Mr. Richard Marceau

1035

The Hon. Irwin Cotler

The Chair

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.)

Hon. Irwin Cotler

Ms. Marlene Catterall

Hon. Irwin Cotler

1040

The Chair

Hon. Lorne Nystrom

Hon. Irwin Cotler

1045

The Chair

Hon. Irwin Cotler

The Chair

Mr. Chuck Cadman (Surrey North, CPC)

1050

Hon. Irwin Cotler

1055

The Chair

Hon. Irwin Cotler

The Chair

Ms. Marlene Catterall

The Chair

Ms. Marlene Catterall

Hon. Irwin Cotler

The Chair

CANADA

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

NUMBER 003

3rd SESSION

37th PARLIAMENT

EVIDENCE

Thursday, March 11, 2004

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): I'll call the meeting to order.

We're reviewing the supplementary estimates for the year ending 2004 and the main estimates for the fiscal year ending 2005.

Our witnesses today include Justice Minister Irwin Cotler, his officials, department heads, the whole shooting match.

I see a quorum here now. I'll point out that it is our intention, at the end of this meeting, to proceed into a steering committee meeting in camera. We have almost two hours for our visit this morning. Having said that, we can now commence.

I will ask Minister Cotler if you have an opening set of remarks for us. If you do, you can proceed.

[Translation]

Hon. Irwin Cotler (Minister of Justice and Attorney General of Canada): Thank you, Mr. Chairman.

I am happy to meet the members of your committee on the Main Estimates as well as the Supplementary Estimates of the Department of Justice.

¿ (0910)

[English]

This is my first opportunity as Minister of Justice and Attorney General to appear before you, and it's a delight for me to be able to do so. I enjoyed my own presence on this committee, and I appreciate its significance and importance in the pursuit of justice.

I'd like to take this opportunity to introduce you to my deputy minister, Morris Rosenberg; the assistant deputy minister responsible for corporate management and administration, Josée Touchette; and the acting assistant deputy minister with particular expertise in criminal law policy, Don Piragoff. I would also like to express my appreciation for their work.

What I propose to do, Mr. Chairman, so that this budgetary exercise is as comprehensive but as comprehendable as possible, is to organize my remarks around three themes. First is a snapshot of the changing socio-legal environment and the corresponding increase in the demand for legal services, so that the budgetary framework can be contextualized and understood in that regard. Second is the changing resource needs of the department in response to the larger, more frequent, and more complex demands on justice resources arising from this changing socio-legal environment. Third is a snapshot of the priorities on the justice agenda, which underpin both of these demands on resources.

Let me begin with the changing demand and its impact on the department.

Over the past decade the Department of Justice has sought to keep pace with a rather remarkable growth in the demand for its legal services. To handle both the increased volume and the increased complexity of the work, the department has made significant changes in the way we conduct our work. These transformations are reflected in the spending estimates before you today, spending estimates that reflect both the uniqueness of the department's mandate and the changing times in which it is called upon to deliver that mandate.

[Translation]

Allow me to take a few moments to describe this growth as well as the challenges it inspires. I will also take advantage of this opportunity to describe some of our current priorities, as I already said.

Mr. Chairman, in recent years there has been a huge increase in recourse to the courts resulting in what can be described as the Canadian culture of litigation. A number of factors have come into play.

First, there is the impact of the Canadian Charter of Rights and Freedoms, opening up the possibility for court challenges of government laws and measures that were previously implicated in the political process.

Second, we have seen the development of a type of discourse relating to rights whereby public policy issues are considered in relation to specific rights rather than choices that are made among various options.

Third, Canadians are less inclined to show diffidence when it comes to the legislative choices of government.

[English]

The sociologist Edgar Freidenberg expressed this in terms of the decline of a deference to authority, which finds expression in a rise of legal challenges to government action and in a willingness to criticize proposed laws, etc.

[Translation]

Fourth, there is the significant increase in the number of lawyers in Canada, namely 21% over the past ten years.

Fifth, there is the new practice of determining fees based on the results obtained in class actions, making it easier for people to decide to take a matter to court.

Sixth, there has been the judicializing of international relations, notably rules-based trade agreements, an increasing tendency on the part of NGOs to call for new legally binding standards in the matter of human rights, etc.

[English]

Other challenges that have inspired, for example, greater demand for justice services include the increased demands on access to justice, with corresponding pressures on provincial legal aid systems, and the demand in matters of immigration and refugees is but one example in this regard; the increasing high-cost claims, not only under the charter, but class actions, lawsuits, including mass tort claims, mega-trials, and claims for redress of historical wrongs, let alone the growing cost of greater caseloads and more complex cases in the civil, criminal, and administrative justice systems--all these, Mr. Chairman, are having a significant impact on both the government's financial flexibility and on our potential or prospective liability; the impact of science and technology--the legal system must adapt to rapidly evolving developments in biotechnology, genetics, the Internet, and the like; and finally, by way of example, the interaction of the aboriginals with the justice system, where the courts have emerged as a main avenue of redress for a whole network of claims, be it in the framework of the treaty process, be it in the framework of residential schools and the like.

This brings me to the second theme, Mr. Chairman, and that is the revised approach to growth: how we have responded to these dynamics from an administrative and budgetary point of view and the manner in which we try to organize our resource needs.

Up until the mid-1980s the Department of Justice received adequate funding through its appropriations to provide the necessary gamut of legal, advisory, legislative, and litigation services to its client departments. The growing trend, however, towards larger, more frequent and more complex demands, as I have described, eroded justice department resources until these were no longer adequate to provide the level of services not only requested, but in fact required by clients and indeed by the administration of justice.

That's why in 1988, with the agreement of the Treasury Board Secretariat, the Department of Justice began to provide some services on a cost-recovery basis to client departments. Initially non-salary costs were charged to clients, then the salaries of only a few lawyers were recovered from clients in the cost-sharing agreements that were negotiated with clients who felt they had pressing needs for legal services. While the department continued to fund part of this work through appropriations, the demand for legal services continued to increase over time, as did the volume of cost-recovery activity, to the point where a more robust funding regime was required.

In discussion between the Treasury Board and the Department of Justice the following key question emerged: Does the Department of Justice have the clear and unambiguous authority to spend funds recovered from departments or agencies? As you know, the Financial Administration Act requires departments to seek specific authority to spend revenues received by means of a vote-netting authority or revolving fund. This, however, had not been explicitly done.

As an interim solution, therefore, the Department of Justice is requesting authority to increase its appropriations for 2003 and 2004 to $212 million. The money will be placed in a frozen allotment. The department will not be able to access the funds until it has deposited an equivalent amount of money collected from the client agencies and the consolidated revenue fund.

With this measure the Department of Justice can ensure that its cost-recovery regime is transparent to parliamentarians and in full accordance with the government's financial policies. This measure is cost neutral, and justice department clients will not be affected by its implementation. Clients will not pay more for the cost of legal services. They will be billed in accordance with current policies.

In this regard that is precisely our approach: the department is working towards the creation of a long-term solution, a funding regime for legal services that will be beneficial both to the department and its clients and to the pursuit of justice, both in financial terms, if you will, as well as in policy terms.

A project is now underway to assess available funding regimes and to formulate recommendations to senior management. The chosen regime will be fully compliant with the Treasury Board's common services policy. It will bring greater transparency and accountability to the administration of legal services costs.

Let me go now to my third and last theme and identify the priorities on the agenda and move very quickly through them.

Number one, Mr. Chairman, is the matter of protecting security and promoting human rights.

¿ (0915)

As we know, the world changed dramatically after 9/11; as has been said in every headline of the time, the world was changed. This has found expression in particular in the pursuit of human security as a case study in anti-terrorism law and policy, which has a human rights dimension on both sides. First, the very pursuit of anti-terrorism law and policy is itself the pursuit of human security, namely the protection of the security of democracy and the protection of the fundamental rights of the inhabitants, the rights to life, liberty, and security of the person.

At the same time, in the enforcement and application of anti-terrorism law and policy, we have to ensure that we protect also the rights of our inhabitants and do not single out for example any group or any visible minority for deferential and discriminatory treatment under the law. Other approaches to the protection.... And I would say this particular committee will be in fact the focus of attention in that regard. You'll be undertaking a first-ever three-year review of Bill C-36, the composite anti-terrorism law and policy, this fall.

I've also made a reference to you with regard to section 4 of the Official Secrets Act in that regard. And we will have, with respect to the promotion and protection of human security, concerns regarding the struggle against impunity. Bringing war criminals to justice is a priority in our agenda, as is the combatting of racism, hate speech, and hate crimes as part of protecting against the assault on the inherent dignity of the human person and the equal dignity of all persons.

This brings me to the second priority, and that is the need to protect the most vulnerable among us as we promote and protect human dignity. By the most vulnerable, I'm referring to the protection of children, the protection of women, the protection of the disabled, the sexual minorities, refugees, immigrants, and the like. For example, the protection of children from all forms of exploitation, neglect, and abuse must be a priority on our national and international agenda, both as a matter of principle and as a matter of policy.

We also need to support new approaches to parenting after divorce and reinforce legal protection for the best interests of the child.

We'll also need to address on a priority basis all forms of violence against women. In particular, we hope to make the fight against trafficking in women.... Earlier this week, in a conference that the Department of Justice hosted, the first-ever conference held here on this matter, dealing with both its domestic and international aspects, I described the trafficking in persons, and particularly the women and children, as the new global slave trade, and I outlined there a ten-point proposal with respect to how we can combat the global slave trade in that regard.

The third priority, that of aboriginal justice, is a priority not only for the Department of Justice, but here we give expression really to the priority of this government, where the Government of Canada, the Prime Minister has indicated, places a high priority on improving the relationships between aboriginal people and the justice system. When aboriginal people come into contact with the justice system as victims or accused, their needs as related to their culture, economic position, social circumstances, and the like must be taken into account to make the system fairer and more effective for them. And we are seeking to achieve this goal with an aboriginal justice strategy and the like that finds expression in our estimates that are before you.

The fourth priority is a comprehensive reform of the justice system, both on the criminal side and on the civil side. Canadians rely on the justice system to provide an independent and impartial forum for resolving disputes. To serve Canadians in all our diversity, the system must be accessible, fair, and relevant. Here the department provides funding support to the provinces and territories for several programs to improve access to the justice system.

The largest of these in dollar terms, and increasingly so, is legal aid, which is available to people involved in serious criminal matters who are economically disadvantaged, to young people in matters related to the Youth Criminal Justice Act, to refugees, immigrants, and the like. And this is, as I say, a dramatically growing part of the pursuit of the administration of justice in matters of access to justice.

In the matter of criminal justice, as criminal cases grow in number and complexity, so do costs and delays, as we can appreciate. Canadians often become aware of the situation through news reports. A charge is being stayed or dismissed because of delays in proceeding to trial, which can undermine confidence in the criminal justice system. We continue to strive to improve efficiency in the justice system without compromising its essential fairness and accessibility.

We also need to deal with pressing issues such as cyber-hate, cyber-terrorism, and the growing problem of identity theft.

¿ (0920)

We're also working to enhance our international criminal law capacity in order to effectively collaborate with our international partners to address global crime and threats to collective and domestic security. In a word, Mr. Chairman, we are experiencing both the globalization of injustice and the need to respond with the globalization of justice, both in our domestic and international response.

I'm going to leave out the next section, which has to do with our approach to same-sex marriage, but I'll be happy to go into that if there is any question. I'll just go to the last priority in that regard, which is a justice action plan for democratic renewal, which complements the government's action plan for democratic renewal, but with a particular justice perspective. That relates to our own enhanced relationship with parliamentarians, in particular, we hope, with the members of this committee, with a program for regional outreach--in other words, involving Canadians in the development of the justice agenda.

I have already, at the outset of my mandate, visited every region in this country, met with my counterpart provincial attorneys general, met with stakeholders, law students, law faculty and the like, with regional officials of the Department of Justice, members of the professional bar--in other words, the entire spectrum of stakeholders. I asked them what they think the justice agenda should be--if they were the Minister of Justice, what would their priorities be? And I sought to do this right at the outset of my mandate so we could have these encounters across the country.

Reform of the Access to Information Act, reform of the appointments process with respect to appointment of judges to the Supreme Court of Canada, an enhanced role for parliamentarians in these regards, and support on an international basis for democratic reform regarding states in transition or failed states, which in fact have an impact and a fallout on everything we do....

The Department of Justice, Mr. Chairman, is continuously seeking to improve the access, the equality, and the effectiveness of our system of justice. Our work involves partnerships with the other provinces and territories, with other departments and agencies, with community and service groups, and with individual Canadians. It also involves cooperation and collaboration with the international community.

But as this socio-economic environment changes and as the demand for legal services grows, so too must the Department of Justice. This is not just a financial or accounting matter. We are talking here about what I said, my first words right after being sworn in as Minister of Justice and Attorney General, that my overarching priority will be the pursuit of justice, and within that, the promotion and protection of equality rights as part of the foundation for a justice system built around the promotion and protection of human rights and human dignity.

I believe the spending estimates before you therefore should be seen as investments in Canada's system of justice, as investments in the pursuit of justice, which will help make our system more accessible, inclusive, and equitable for all Canadians.

I welcome, Mr. Chairman, your questions and look forward to your feedback.

Thank you.

¿ (0925)

The Chair: Thank you, Minister Cotler.

On behalf of committee members, all of us here, I want to congratulate you on your appointment to the cabinet.

I'll now look to the left--not that far left, Mr. Nystrom. Is it Mr. MacKay who will lead off? We'll have a series of seven-minute rounds.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, CPC): I'm in the far middle, actually.

The Chair: Mr. MacKay, you have seven minutes.

Mr. Peter MacKay: You're just way out there, in outer space.

Hon. Irwin Cotler: This is a wonderful ideological competition, I see.

The Chair: Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

Minister and officials, we very much appreciate your being here—the minister in particular. You've outlined a very ambitious agenda. I must express my personal admiration for your undertaking such an ambitious agenda.

I want to bring to your attention at the outset, though, given the fact that we are here to examine the estimates, an issue that was raised in the House of Commons yesterday by our House leader, Loyola Hearn—it deals specifically with all of the estimates—wherein the President of the Treasury Board has set out that these estimates and this exercise we're going through are essentially a sham, because the main estimates are all going to be revised sometime in the next six months of the 2004-2005 fiscal year.

For all intents and purposes, these numbers we are working with have no relevance, because they are completely unreliable, according to the Treasury Board president himself. I'm quoting from a document that was on his website: “Due to the extent of the machinery of government changes announced in December 2003, it is the intention of the Government to table a revised set of Main Estimates later during the 2004-2005 fiscal year.” It isn't even specific about when those numbers will come forward.

Much of what you have talked about today is completely predicated upon the need for more money in your department. In particular, you talk about the backlog in cases for legal aid. Having worked in the justice system not that many years ago, I couldn't agree more. I completely concur with the situation you have outlined about how serious it is, how there is an entire backlog that is causing a huge amount of strife and strain and injustice. As you know, and I've heard you say it yourself, “Justice delayed is justice denied.”

The strain on our legal aid system is only going to be addressed, I would suggest, by having an influx of money, much as is the case with our health care system. These numbers, in your department and every other department of government, appear to be fudged, appear to be inaccurate, appear to be unreliable by virtue of what I would describe it as an unprecedented move by your government to not bring forward the real numbers, but essentially say “At some point in the future we're going to bring forward the real numbers. In the meantime, we're going to have a budget based on this magical mystery tour we're going through for the main estimates in all of the departments.”

I wonder, on an issue of fundamental justice, what you would have to say about whether we can rely in fact on the numbers that have been placed before us in the main estimates today.

The Chair: Paddy Torsney has a point of order.

Ms. Paddy Torsney (Burlington, Lib.): I believe the issue the member opposite has raised is before the Speaker right now and hasn't been ruled on. I think it's inappropriate to start asking the minister for something that hasn't been agreed to or discussed more fully in the House.

Mr. Peter MacKay: Well, Mr. Chair, we're here to discuss the main estimates.

The Chair: No, we're not going to get into a debate on a point of order. We don't need to, because I'm not so sure that what's happening in the House would cause us to restrict the questioning from any of our members at this point. Let's get on with the question.

Mr. Peter MacKay: Thank you, Mr. Chair.

To the minister, just with respect to the numbers we have before us from your department for the purposes of the examination of the estimates, is it your understanding that we can rely on these numbers?

Hon. Irwin Cotler: First of all, in answer to your remarks that what you have placed before you may leave the impression of a sham for you, let me say that the socio-legal environment and the calendars and stressors I've described are, as I said, independent of any particular accounting approaches. I wanted to contextualize, and I thought the work of the justice and human rights committee is to have a better appreciation of what the nature of the environment in which we live is, within which we create a budgetary framework. If we don't have that context, then we can't really understand the work.

We tried through that, if you will, to open the window on what we do and why we do it. Then we went into the second thing, which was how we proposed to do it. This was an attempt to be transparent in that regard. As I said, admittedly, in the past, because of particular financial approaches with regard to cost recoveries from our clients, this may not have been as fully transparent as we might have liked, because of the nature of the funding mechanisms. In the interest of transparency, we in fact opened up the whole process at this point so that it can be clear exactly what is happening.

Third, the agenda I set before you, that five-point set of priorities, is exactly what it would be as well with respect to looking at it outside a budgetary framework as looking at it within the budgetary framework. It does not change; it holds true; the figures hold true. There's nothing here that's intended in any way to obscure or obfuscate the whole approach here. From a financial point of view, it was to be transparent. From a policy point of view, it was to identify our priorities in that regard.

¿ (0930)

Mr. Peter MacKay: Mr. Minister, that's fine. You can set out all the priorities in the world. To achieve those priorities, with the numbers, the budget you're relying upon, there has to be some integrity, there has to be some reliance on the reality of those numbers. If you want to achieve this ambitious agenda, you must be able to address the shortcomings in the legal aid system, in the immigration system.

In particular, you have in the past been a champion of addressing some of the issues related to war criminals in this country, our lack of diligence in pursuit of war criminals. By last count, 75 war criminals earmarked for deportation in this country have simply disappeared. I've read your remarks about war criminals. You were quoted as saying at one time “There is a culture of impunity going on in this country when it comes to war criminals.” Again from your words, “The presence of war criminals amongst the world's democracies, including Canada, is a moral and judicial obscenity, an affront to conscience.” Those are strong words.

I put it back to you. What will your department be able to do about this if the budgetary process is flawed, if the numbers are not real, if there are insufficient resources to address these very shortcomings you have stressed repeatedly, both previous to your appointment and during your time in office?

Hon. Irwin Cotler: I recognize my own shortcomings from an accounting point of view, and my own family would be first to acknowledge that. So in order not to prejudice my own case when it comes to matters of accounting and numbers, I'm going to turn to the experts with me in that regard. I think a minister should know not only where he might have some experience and expertise, but where his limitations are. In my case, they always are with regard to the specifics of budgets, not with regard to policy, but with regard to the actual number crunching. As I said, what we put forward was something in the interest of transparency.

I'll turn now to my deputy minister, who comes here as a kind of archive on these matters. He has more institutional memory than any of us on both the policy and the budgetary process and their intersection.

Mr. Morris Rosenberg (Deputy Minister and Deputy Attorney General, Department of Justice): “Human archive” is quite a title.

¿ (0935)

Mr. Peter MacKay: Is that a compliment?

Mr. Morris Rosenberg: I'm not sure.

Mr. Chair, we do have an ambitious agenda, there's no question about it. The minister described a significant growth in demand in the justice system that we need to deal with, and we need to deal with it within an environment, as all departments do, where there are not limitless resources. There are competing priorities, and we recognize that. It means we need to manage our department as effectively as possible. It means--speaking to some of the factors that the minister was talking about--it's our responsibility not simply to note the increase in litigation, but to actually try to do something about it through some proactive management.

So what does that mean? That means that over the past few years we have instituted, in the context of the overall government risk-management approach, an approach to legal-risk management, by trying to identify as early as possible what some of the legal risks are, by trying to settle cases that warrant settlement, by trying to divert matters out of litigation where there are other ways of dealing with them. I've said that one of the factors the whole society needs to be aware of in looking at the trend towards becoming more litigious is that there are a lot of issues where litigation is not the best way of dealing with them. If you're trying to build relationships with people, going to court and having a battle in court is not the best way. So we try, for example, in the aboriginal area to look at other means of resolving disputes, both criminal and civil, restorative justice approaches on the criminal side, participatory justice on the civil side.

The Law Commission just issued an excellent study on participatory justice, looking at best practices right across the country and elsewhere for how we can move away from litigation where possible, and we're trying to adopt some of those approaches. One of the things that--

Mr. Peter MacKay: The Department of Justice--

The Chair: Mr. MacKay, we have gone over the time, so we should let Mr. Rosenberg finish.

Mr. Peter MacKay: I want to make a final point on that issue.

The Chair: You may make the point, and then we will close it off. You interrupted Mr. Rosenberg.

Mr. Peter MacKay: Mr. Rosenberg, the Department of Justice pursued the case against François Beaudoin. Is that correct?

The Chair: Mr. MacKay, you wanted to make a point. You may make your point, and that would end your round. You've asked a question.

Mr. Peter MacKay: Your department pursued the case against François Beaudoin, which seems to run contrary to what you're saying about avoiding litigation.

Mr. Morris Rosenberg: If you're talking about the BDC case--

Mr. Peter MacKay: I am talking about the BDC case.

Mr. Morris Rosenberg: --I believe that was pursued by the BDC. The BDC is not represented by the Department of Justice. It has its own lawyers. I believe it retained outside counsel itself with regard to that matter.

Mr. Peter MacKay: Thank you.

The Chair: Thank you.

Mr. Marceau, for seven minutes.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman.

Minister, I would like to thank you for coming here this morning. I must say that it is a pleasure for me as a young lawyer to be able to question a professor of law when normally it works the other way around. I suppose it can be described as a rather perverse pleasure.

You said on many occasions that the prosecution of war criminals was one of your main priorities and you repeated this this morning. I have no hesitation in saying that this is the subject of a consensus, not only at this table, but among the population at large.

It would appear that there are some problems relating to the efficiency of this program. How can we ensure that the investigations and the criminal prosecution take place as quickly and as fully as possible? Is there a problem of money? Is there a problem with Immigration Canada? Is there a problem with the RCMP? Or with the provincial police? Where exactly is the snag?

The Hon. Irwin Cotler: You mentioned that this issue of the prosecution of war criminals was one of my priorities. This was the case even before I was appointed Minister of Justice.

As I said before becoming minister, there are problems involved in the prosecution of war criminals. In my opinion, the problem relates to issues of investigation and prosecution. I am not talking only about investigations in Canada but also in various other countries. It is difficult to find the proper documentation and to obtain the appropriate testimony. It is particularly difficult in the case of Second World War criminals in view of the amount of time that has passed and the difficulty in obtaining documentation and the necessary witnesses.

As for the war criminals that are scattered throughout the world, the priority is to ensure that none of them are admitted to Canada. If some of them happen to be here in Canada, then it is a matter of starting legal action, either civil or criminal.

I will ask the director of the section who looks after war criminals to give you more details about the work done in his section.

¿ (0940)

Mr. Terry Beitner (Director, War Crime Section, Department of Citizenship and Immigration, Department of Justice): Good morning, my name is Terry Beitner and I am the Director of the War Crimes Section in the Department of Justice.

First of all, a bit of background. You will remember that in 1995 we initiated 21 proceedings against people who were alleged to have taken part in war crimes during the Second World War. We were successful.

As for the question of the efficiency of proceedings involving war criminals in a modern context, that is people who are alleged to have committed crimes after the Second World War, we have just come to the end of an approximately three-year period during which we conducted investigations in some 15 countries. We have approximately 85 cases or allegations against individuals and we are working with the RCMP, the Department of Citizenship and Immigration as well as the Canadian Border Services Agency. These investigations are still underway and they are complex.

As the Minister of Justice said, this involves seeking evidence in countries where a war has just taken place, where people have recently been victims of war crimes or crimes against humanity. They are very complex matters.

Mr. Richard Marceau: I understand that they are complex but let me quote from a National Post article that will surprise no one:

[English]

Several cases have been assembled by the RCMP and sent to the Department of Justice; so far none have been given the approval by the Attorney-General needed to lay a charge.

[Translation]

And here is a quotation from Mr. Dubé.

[English]

We're still waiting for it. We're still optimistic.

[Translation]

It is implied that the investigation has been completed and the problem lies in the decision to prosecute. Is that correct?

Mr. Terry Beitner: It is true that we have just received a number of cases. I have three teams of lawyers and analysts who are working on different files. Our role at this point is to examine the required evidence, to read the transcriptions and determine whether there is sufficient evidence to begin proceedings.

A number of other cases were submitted to us previously and we decided that there was not sufficient evidence to begin action. It is a continual process.

Mr. Richard Marceau: Thank you. Do I have any time left, Mr. Chairman?

Minister, you said that one of your priorities was to protect the most vulnerable. As you know, we are in the process of passing Bill C-12. A question that was raised in committee and that received the support of members on both sides of the table, but not a majority support, related to minimum sentences for people convicted of certain acts against children.

Would you at the very least be willing to give an in-depth study to the idea of imposing minimum sentences in particularly repulsive sex cases involving children?

The Hon. Irwin Cotler: It may be that I am adopting the approach of a professor of law, but generally speaking I am open to any studies that will improve our policy, particularly when it comes to the protection of children and teenagers.

As for your specific question, I should say that generally I am not in favour of minimum sentences and that sort of thing. Perhaps Mr. Piragoff has something to add on this point.

Although our Criminal Code does provide for certain minimum sentences, as you know, the Canadian approach in this respect has been moderate, and courts have been given discretionary power to impose a sentence that is in keeping with the gravity of the offence and the behaviour of the offender. I agree with this approach.

I think that we should remember the data indicating that generally, mandatory sentences do not have a deterrent effect on crime and do have a number of unintended harmful consequences for the criminal justice system. When I say that, I am not simply expressing my personal opinion. There are indeed a number of indicators such as, for example, a significant cost increase resulting from a large number of trials and the fact that they last longer, the smaller number of guilty pleas, as well as the greater number of offenders in custody.

We can see what is happening right now in the United States. Many American states are now calling into question their strict sentencing regimes—such as the system of three strikes and you're out—because of the undesired effects that have been observed following studies of this in the United States. A movement is now underway in the United States to reform this policy.

¿ (0945)

[English]

Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Minister.

I just want to add that not only is this the view of the minister, as he said, but it's also supported by independent research.

In May 2001 a survey of literature was undertaken by the University of Ottawa and Carleton University in a report entitled Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures. The report surveyed research in Canada, the United States, Australia, New Zealand, Malaysia, and the U.K.

In brief, the report concluded that the research does not support the use of mandatory minimum penalties for the purposes of general deterrence and incapacitation. There was no evidence that sentencing disparities were reduced by the use of mandatory minimum penalties and that a number of unintentional adverse effects and distortions in the traditional patterns of sentencing arise.

I think the minister has mentioned some of those, such as increasing the length and costs of trial, fewer guilty pleas, and increased numbers of offenders in custody awaiting trial.

Where mandatory minimum penalties have been used, it has been in limited cases where there have been incidents of recidivism, for example, impaired driving and those kinds of situations. That's where we have used mandatory minimum penalties. But as a general sentencing mechanism, it has caused distortions, and in the United States there's now a return by many states to more flexible sentencing guidelines, as opposed to the use of mandatory minimums.

[Translation]

The Hon. Irwin Cotler: I would like to make a small but important point. On this particular issue, one of the great secrets in my opinion, is the progressive and significant case law that we have developed here in Canada with respect to the prosecution of war criminals and its possible international application. Having studied the jurisprudence, it is my opinion that this is not only progressive case law but it is also revolutionary in certain respects in the framework of international criminal law. I asked the department to prepare a complete file that could be presented not only here in Canada but also internationally, so that it could be used as a study of international significance when it comes to the prosecution of war criminals at the international level. I was given this file two days ago. It is one of the things that we are doing here. As I said, it is one of our secrets, and the dissemination of this knowledge could certainly facilitate prosecution at both the domestic and international levels.

¿ (0950)

[English]

The Chair: Thank you very much.

I hope colleagues don't mind these times--the answers take us way beyond the seven minutes. But I assume colleagues appreciate the fulsome answers.

Mr. Nystrom, for seven minutes.

Hon. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you, Mr. Chair.

This is the first chance I've had to congratulate the minister on being the Minister of Justice. I think you're well suited for that portfolio and I wish you the very best.

I want to ask you a general question first: whether you can shed any more light as to when you think the reference on same-sex marriage will be heard before the Supreme Court, how long that will likely take, whether you anticipate legislation on it, and when that would likely be.

I just wanted to see whether or not you could enlighten us a bit more as to what you anticipate the timetable to be. We were asked about it by a number of people across the country, as you can expect.

Hon. Irwin Cotler: I thank you for that question.

As it now stands, the reference is intended to be heard in mid-October. The time set aside for the hearing of the reference is three days. It was initially going to be heard in April, and the court had set aside two days, but the court itself admitted 18 interveners--and I don't think it's over yet--along with three governments. So it will be in mid-October for three days. It's hard to know when the court might hand down its judgment. I would think, in a matter of this kind, given its importance, the court might wish not only to render a decision, but to deliver a series of reasons for its decision, because it's an advisory opinion.

I think the importance of that should be appreciated. While the opinion of the Supreme Court is clearly authoritative, it is advisory. Therefore, it comes back to Parliament, and Parliament has the last say in this regard. Parliament, I hope, will be informed by the comprehensive canvass of views by the Supreme Court of Canada, but then we engage in our own debate, we engage in a free vote, and we exercise our own best, informed judgment as the beneficiaries of the Supreme Court's advisory opinion. The ultimate determination in this regard is a parliamentary one, as it should be, given the manner in which this issue has developed. Not only are there a plurality of opinions, but my own assessment of it is that sometimes even the same individual has more than one opinion on this issue.

That is why, frankly, we added a third question. Let me be clear about it. Our position in respect of our factum of legal argument is organized around two foundational principles. One is respect for equality law and, within that, support for same-sex marriage, or as I sometimes prefer to call it, extending civil marriage to gays and lesbians. I use that approach because it means we're not taking rights away from anyone, we are being more inclusive with respect to our extension of rights to those who do not have them in the pursuit of equality. The second major principle here is respect for religious freedom. No religious official will be compelled to perform a same-sex marriage if that's contrary to their religious belief or conscience.

We added an additional question to the reference, and the reason we added that additional question was a third principle, what I call the democracy principle or the democratic due process principle. Those who feel otherwise than we do with respect to these views will be able to have, as it is put, their day in court. We hope this will lead to three outcomes: first, a more comprehensive litigation before the court, and we have seen it already with the admission of interveners in the courts, so we will have a broader canvass; second, a more informed parliamentary debate, because we will be the beneficiary of that judicial review; third, a feeling by the public, or the various publics, on this issue that they had their day in court, that they had the right to have their views heard. Whether or not we agree with those views as put forward, the diversity and plurality of expression to which I refer will be able to find expression in this reference.

¿ (0955)

Hon. Lorne Nystrom: When would you anticipate seeking the opinion of Parliament?

Hon. Irwin Cotler: As I said, I don't know when the Supreme Court is likely to hand down its decision. My own sense of it is that if they hear it in October 2004, it will likely be handed down some time in late spring 2005. Then, depending on whether we're sitting at that time, we could begin to discuss that advisory opinion, fully informed, as I hope we would be, by what has gone on both inside the court and outside the court.

Hon. Lorne Nystrom: I notice that under vote 1 of the estimates, the Department of Justice is seeking some $493.8 million for government client services. That represents an increase of 92.7% over the estimates in 2003-2004. What are the reasons for such a substantial increase? That 92% is very high. There must be some new initiatives, some unexpected occurrence. Can you please explain that to the committee?

Hon. Irwin Cotler: As I said, when it comes to matters of financial management and the appropriate and specific data in that regard, I'll rely on the expertise of, in this case, the financial archive, Josée Touchette.

Mrs. Josée Touchette (Assistant Deputy Minister, Department of Justice): Thank you, Minister.

You're correct to note that there is a significant increase this year in our main estimates. It's due, in particular, to one issue, the funding for interim resources of the cost-recovery regime, which represents $212.8 million. In consultation with Treasury Board officials, it was determined that the authority for the Department of Justice to spend the funds it receives through cost-recovery from other departments for the legal services it performs on their behalf needed to be strengthened. An agreement was reached with Treasury Board for an interim solution to revise the funding regime we have.

Until the mid-eighties the Department of Justice was funded strictly through its appropriations. At that time the demand for legal services began to increase, so we set off a system with Treasury Board whereby we would recover some of the costs and salaries associated with Justice lawyers. Over the years, as the demand for legal services increased sharply, the level of resources available to Justice was no longer adequate to provide the level of services requested by departments, so Justice started this cost-recovery practice, which itself also grew. Initially it was only the salary of a few lawyers that was recovered from departments under cost-sharing agreements. However, as the demand increased, the volume of cost-recovery increased as well, to a point where we were of the view, with Treasury Board officials, that we needed to have a clearer authority to re-spend the money we were collecting.

To give you an example, last year, 2002-2003, Justice recovered $117 million from client departments, and it forecast that it was going to recover up to $145 million in 2003-2004. The Financial Administration Act requires departments to seek specific authority to spend revenues received, usually through a vote-netting authority or a revolving fund. To set up a mechanism like that takes one or two years, roughly. So what we did this year, with the agreement of Treasury Board, is set up a frozen allotment, which in the estimates you will see accounts for $212 million. That frozen allotment allows Justice to recover the salaries and the costs for legal services from departments, to deposit that with the consolidated revenue fund, and to draw out à mesure the money from the $212 million, which represents the ceiling of what we will be able to recover over the next year.

This allows greater transparency. In the past you would not have had such clear accounting of the transactions, coming in and going out. However, we recognize this is an interim solution, because we're going to adjust the votes with the assistance of Treasury Board, and we will have to come back to Parliament to do that. But in the interim, to increase transparency, we have relied on this solution, and this is why we are asking in our estimates for an additional amount, which makes our estimates this year look very different from those of last year.

À (1000)

The Chair: We're over time, but if you have a very short follow-up, I'll accept it, Mr. Nystrom.

Hon. Lorne Nystrom: Very short, combining the minister's knowledge of accounting and policy. I notice there's a footnote in the estimates of $2.5 million for public security and anti-terrorism legal aid. What is that initiative?

Hon. Irwin Cotler: Thus far, as far as I can tell, we've not had to expend any moneys in that regard. We're discussing here any prosecutions that would be pursuant to Bill C-36 and our anti-terrorism law and policy, and we've not been involved in prosecutions in that regard. That was really a projection with respect to whether prosecutions might arise within the context of the public security framework.

I might add and use this as an occasion to say, because I was surprised to learn this myself, that the Department of Justice has close to 50,000 ongoing civil litigation cases, which represent a cost of $175 million, and we open and close approximately 30,000 in-house prosecution files--and I'm not talking about the whole range of constitutional cases.

I have to tell you, when I used to teach law and I'd see a case X versus the Attorney General of Canada--that's how cases were cited very often--I never paid attention to it. Now I take it personally, because I realize we're the defendant in most of those 50,000 civil litigation cases--and the Department of Justice has approximately 160,000 criminal prosecution files in its in-house inventory. When you look at that range of case law and appreciate not only the volume, but the growing complexity, you see that we're happy. But I may close by saying we don't at this point have to be dealing with a whole range of cases in the matter of anti-terrorism law and policy, unless it becomes necessary to do so.

I'm told Carolina could give the specifics on estimate 2.5.

Ms. Carolina Giliberti (Director General, Department of Justice):

Thank you very much, Minister.

To assist in the implementation of the Anti-Terrorism Act, the department established a contribution fund to allow jurisdictions access to resources. Under the contribution agreement, the provinces can secure resources for any charges laid under the Anti-Terrorism Act or such other public security and anti-terrorism legislation as may be enacted by Parliament, for immigration and refugee border controls stemming from the events of September 11, and for any proceedings under the Extradition Act where the requesting state alleges the commission of a terrorist act. To date we've had no requests under that fund, but it has been set up to assist the provinces in that regard.

Hon. Irwin Cotler: I'm glad I was right on that policy, but I'm backed up now on the matter of the particular estimate.

The Chair: Thank you very much.

We'll go to Ms. Barnes for seven minutes.

Hon. Sue Barnes (London West, Lib.): Thank you very much.

Welcome, Minister. I know the effort you took to get here this morning.

I want to start off with something that's near and dear to my own heart, the area you touched on of aboriginal justice. I guess it's reality that the aboriginal population is having great problems relating to a system of justice where they seem to be overrepresented at every point of contact, whether or not it's through a court system. It just does not appear to be working particularly well if we measure results by representation, given the size of the population. I know this is of concern to you. I've heard of those efforts of the department that come closer to an approach that is culturally relevant and combines the parameters of a community safety outcome, with incorporation of any system that acknowledges an integration of the value system.

I know it's the early stages yet, but I'd like to hear your comments on this further and specifics where you feel you can.

À (1005)

Hon. Irwin Cotler: Thank you for the question. As I mentioned earlier, aboriginal justice is a priority not only for us, but for the government.

I should state that the person best able to answer the question put is the questioner herself, because as my parliamentary secretary she has been engaged in almost full-time outreach. Whenever you don't see her here in the House it's because she's meeting with aboriginal peoples across this country. And each time that I have gone to visit a particular region with respect to asking, as I said, the stakeholders about what they believe the agenda for justice should be, about what our priorities should be, Sue Barnes has gone with me and met at the same time with all the aboriginal stakeholders to seek their views in that regard.

I want to perhaps share with you, in answer to that question, a very poignant exchange that I had. It turned out, par hasard, that my first encounter with stakeholders and with any government was with law students from Nunavut, from the Akitsiraq Law School, who had come to Ottawa as part of a training session here at the University of Ottawa. This was the first Inuit law school in Nunavut, and they were accompanied by the Premier and Minister of Justice Paul Okalik, who had just been re-elected. They were the first people I met with in this outreach, interestingly enough.

When I met with the aboriginal law students they said something very compelling. I've cited it elsewhere, and I want to put it forward for the record here, because I think perhaps in its own way it answers the question in its deeper existential as well as legal sense. They said, “Professor Cotler, we're not just law students, we're aboriginal law students. We come with a past, with a history, with a heritage, with a language, with a law, with a culture, with an identity, with an aboriginal legal tradition, and we've been dispossessed from all that. We've been dislocated from our history, from our heritage, from our law, from our language, from our culture, from our identity, from our own aboriginal legal tradition. And when we go to court it's not because we want to give expression to a grievance or even with regard to our entitlements; it's because we want to reconnect to who we are. This is an issue of identity for us. This is an issue of reconnecting with our whole history and heritage, including our aboriginal legal tradition.”

I think that's the context in which we have to understand what it is we do and on which we develop a new cultural sensibility in our relationship with aboriginal peoples.

I don't need to share with you this encounter. If we look at the numerous reports and inquiries over the years, they clearly demonstrate that aboriginal peoples do not believe the justice system meets their needs. The evidence itself will show that aboriginal peoples, as we all know--and I'm not saying anything that is not known to members of this committee--experience disproportionately higher levels of arrest, conviction, incarceration, and recidivism.

In both the recent speeches from the throne, the government reiterated its commitment to aboriginal people and to a more coherent approach to dealing with aboriginal issues.

In terms of our approach, an aboriginal justice strategy is the framework or prism through which the approach can be seen, where the work is being carried out in partnership with aboriginal people and provincial and territorial governments that are supporting, in this regard, community-based approaches such as diversion, sentencing alternatives, family and mediation approaches--and the deputy minister made a reference to this--and other programs that strengthen the links between community justice workers and the courts.

My colleague Mrs. Barnes hosted a meeting here on the aboriginal justice system, which brought here as well community justice workers and native case workers.

She's leaving now. I mentioned Nunavut because she's going, as a matter of fact, to Nunavut next week to continue this outreach with aboriginal peoples.

In conclusion, the aboriginal justice strategy, in that regard, supports about 85 programs serving approximately 280 communities across Canada. These programs seek to enable aboriginal communities to develop their capacity to deal with justice issues in their communities while incorporating their cultural values and traditions.

On April 1, 2002, the aboriginal justice strategy was renewed for $57.3 million over five years. I want to say that it isn't only here again an accounting exercise; it's a matter of relating to them in terms of who they are or where they are in terms of their needs and aspirations. And that is not only to address it in terms of their disproportionate presence in the criminal justice system, not only as offenders but also as victims, but also in order to mainstream their approaches to justice in the general justice system itself. We can learn from certain community-based approaches to justice, and I'm not only referring to the sentencing circle.

À (1010)

We can learn, therefore, approaches to community justice, to participatory justice, and when they say they would like to be able to reconnect to their aboriginal legal tradition, we would do well to also connect to their aboriginal tradition and to mainstream it in our justice system.

The Chair: Mr. Rosenberg.

Mr. Morris Rosenberg: It seems to me that it's a two-way interaction. The minister alluded to the fact that the mainstream justice system needs to recognize more some of the traditional aboriginal legal practices, the sentencing circles, the restorative justice approaches, etc., not just for aboriginals, but also because they may in fact make sense for all of us as Canadians.

On the other side, I think we have to make more efforts to provide easier entry for aboriginals into professions within our justice system. We could use more aboriginal lawyers, more aboriginals going into police academies and related professions. I think we need to work with some of our colleagues with the aboriginal organizations to see if we can make that happen quicker than it's happening now.

Hon. Sue Barnes: Do I have more time or not?

The Chair: Unfortunately, no; we're over eight minutes.

We're going to go to three-minute rounds. We'll go back to the opposition now.

I'll see Mr. MacKay for three minutes.

Mr. Peter MacKay: Thank you, Mr. Chair.

Mr. Minister, you mentioned moments ago the fact that there are over 50,000 outstanding civil cases. I believe the figure you gave was somewhere in the range of $175 million at stake in those cases. Is that correct?

Hon. Irwin Cotler: Not as outstanding cases. We have approximately, in a given year, 45,000 to 50,000 cases in civil litigation.

Mr. Peter MacKay: Referring back to your opening remarks, and I say this respectfully, you've outlined in many cases tremendous challenges for your department, particularly as they relate to budgets when it comes to legal aid cases, to the backlog. There is also a jurisdictional issue that you're aware of with respect to the provinces setting those legal aid fees. I guess in short order, my question is what are you going to do about it? How are you going to address this backlog? How are you going to address the number of outstanding cases?

Civil litigation in this country appears to be running rampant. The worst possible scenario a Canadian citizen can find themselves in, it appears, is to be in conflict with their own government and to have their government run that case out for years and years and exhaust that person's own personal resources in their attempt to have the case settled by the courts.

How is your department dealing with this backlog?

À (1015)

Hon. Irwin Cotler: As I say, we are in most instances a defendant, so we're not initiating the litigation, we're responding to the litigation.

Mr. Peter MacKay: Well, you're not responding well, I would suggest. These cases take an awfully long time, and you may be the defendant in the case, but the tactics that I've encountered from the Department of Justice, and I get a lot of inquiries, is that a delay is the best tactic to win the case, if you will.

Hon. Irwin Cotler: I'll turn it over in a moment to our expert in civil litigation, but I want to say there are, as I described, in the socio-legal phenomena some dynamics we have to appreciate. Some of them will admittedly delay the pursuit of justice, but I think it is for justice reasons that they do so. For example, the very advent of the charter, as I indicated, will result in more motions being put in both civil and criminal litigation. There is going to be a certain cost, if you will, to efficiency in the interest of fairness and the pursuit of justice.

Let me give you an example where our work, from a parliamentary point of view, brushes up against what is happening from a litigation point of view. We are finding increasingly--I say this as a parliamentarian and a former member of the committee--that there is a disposition, because we respond to the concerns of our constituents, to criminalize more conduct in the interest of public safety, in the interest of community protection. I understand that. At the same time, we have to understand that the charter has also created what I would call the constitutionalization of criminal justice. Therefore, you have a whole area in the charter, rightly so, with respect to--you know this as well as I do--the rights of the accused in litigation. There will be charter arguments developed. I myself have engaged in those cases and asserted those arguments. They're not there for reasons of delay, they're there for the pursuit of justice.

Our approach in all this--and this is an overall Justice policy--is how to balance fairness and efficiency. How do you have a fair process and how do you have an efficient process, given the nature of litigation, as I said, not only because of the charter, but on the criminal side because of organized of crime, the whole issue of mega-process--and we're having to learn how to deal with mega-process? We had a situation recently in Alberta where we had to desist from the continuation of a criminal process simply because of the constitutional requirement for disclosure in a new electronic universe. Science and technology meet up with constitutionalization under the charter and with the social phenomenon of organized crime. All these things intersect. We're living, frankly, in a new universe.

I'm trying to answer your question in a way that shows you it's not a simple response, it's a response that has to appreciate all the socio-legal dynamics. On the specifics of delays, I've tried to put it to you that it's a matter of balancing fairness with efficiencies.

I'll turn it over now to my colleague who actually litigates on the ground, and he can answer it specifically as well.

Mr. Peter MacKay: Minister, before you do that, can I ask you specifically about the status of the Steven Truscott case, where that is in the pipeline of delay?

Hon. Irwin Cotler: You can say it's in the pipeline of inquiry. I would characterize it that way. As you know, that case is being studied by Justice Fred Kaufman, formerly of the Court of Appeal of Quebec, and we are awaiting his report.

Mr. Peter MacKay: Thank you.

Mr. James Bissell (Assistant Deputy Attorney General, Department of Justice): All I would add to what the minister has said is that we also are concerned about and like to avoid delays in justice. We're sensitive to the accusation that justice delayed is justice denied, so we do look for opportunities for mediation to try to resolve cases as quickly as we can. The unfortunate reality we face sometimes in government litigation is that the impact of the principle goes beyond the particular case. We do find ourselves on occasion locked into litigation where we have to pursue the principle, and that does sometimes, I acknowledge, result in delay. It is that balancing act we have to and do take into consideration.

À (1020)

Hon. Irwin Cotler: I can give you a more specific response to your question. The report of Justice Kaufman is expected later this spring.

Mr. Peter MacKay: Thank you, Minister.

The Chair: I have just a note on perspective. Although Mr. MacKay may be making a good point about what he referred to as backlog, I would think most of the lawyers on the other sides of these cases regard it as inventory.

Hon. Irwin Cotler: Just as an aside, when I was teaching the charter, some of my prospective students or prospective lawyers referred to it as the unemployed lawyers relief act. The explosion in litigation, rightly so, as a result of the charter would help to employ more lawyers.

The Chair: Thank you.

We'll go over to the government side for three minutes. Ms. Torsney.

Ms. Paddy Torsney: Thank you.

Minister, as you know, I'm quite concerned about the proliferation of growing operations. I've been speaking to my own police chief, who tells me that our region has 60 to 100 of them that they could bust tomorrow if they had the resources.

More importantly, while I certainly know that Bill C-10 has the possibility of doubling sentences, what else are we doing? How are we going to make sure that the courts and our judges use the tools in that act, since they don't even seem to be using the seven-year sentences that are available now?

Hon. Irwin Cotler: Well, you know, Bill C-10 is really a package of reforms. It's like the person who goes to heaven and is told, “By the way, when you speak, Noah is in the audience.” For me to speak to you about the marijuana legislation, which you and your committee are effectively the authors of, is somewhat presumptuous, if not pretentious, on my part.

I think we have a number of components in the legislation. The grow-ops that you refer to are one of them. They have been a lesser appreciated dimension of the legislation, because you hear the buzzword of decriminalization. What is not appreciated is that we've developed an alternative framework of penalties with respect to conduct. So where we're talking about the use of small amounts of marijuana for personal use, we have an alternative penalty scheme. We're not legalizing it; it remains illegal. All we are saying is that we do not wish to criminalize a younger generation, and we seek uniform application of the laws in this country. It is our view that this will lead to better and more effective law enforcement.

So on the one hand, we will not criminalize a younger generation. On the other hand, through our drug renewal strategy and the education component involved there, as well as everything else, we will send the message to that generation, from a prevention point of view, that this remains illegal. You still use this with the knowledge that there will be better law enforcement or uniform law enforcement, and it's an alternative framework of penalties for the reasons that I mentioned.

As well, there is this drug renewal strategy, to which not sufficient attention has been paid, with regard to having a comprehensive program of prevention, protection, education, rehabilitation, and treatment. The drug treatment centres are part of that as well. I went across this country, and I saw the value of those things on site, in terms of drug treatment centres, when I was recently in Vancouver and had discussions with the attorney general there in that regard.

There are, as I say, the grow-ops. Again, when I went across this country, I found that the cultivation of cannabis is a significant concern in communities across this country. There was not one attorney general with whom I met who did not make reference to these grow-ops and their increasing connection to organized crime. So these are not not only a serious criminal offence in and of themselves, but they also provide enormous profits, as you know, to organized criminals and others involved in the trade.

They also involve serious fire hazards and theft of electricity, as well as structural and mould damage to the houses with cultivation operations. We know that cultivation operations sometimes featured deliberately set traps to endanger firefighters or police involved in the pursuit of those engaged in the grow-ops. That's why we have a parallel bill with regard to traps in that regard. In order to protect aid workers and law enforcement people, we have what you might call parallel Criminal Code amendments in that regard.

At the same time as we continue with our reform with respect to those who use small amounts of marijuana for personal use, we will also continue to vigorously prosecute drug traffickers and those who cultivate marijuana for commercial gain. We will continue to work at that, which is why I mentioned the outreach, because we are working with federal, provincial, and territorial representatives of the enforcement and prosecution communities, and other interested stakeholders, in developing effective strategies with respect to the whole gamut of prevention, protection, education, treatment, and of course also to curtail marijuana cultivation across this country.

The bill seeks to underscore these concerns, because it increases the maximum sentence for those convicted of cultivating marijuana for commercial purposes. As you know well, there's a whole sentencing regime for doing that. As I mentioned, Bill C-14 and its companion set of criminal law amendments also propose significantly higher penalties for those who set deadly traps in places that are used to carry out illegal activities, such as drug production operations, grow-ops, and the like.

À (1025)

I think we need to look at this whole Bill C-10 in terms of a package of reforms. Very often people cite only one component of it. So they cite the component that deals with the possession of small amounts of marijuana for personal use, and depending where you stand, sometimes, on the political as well as legal spectrum, you either say it's not enough in terms that it doesn't go far enough, or you say it has gone too far in that regard and that somehow we are decriminalizing marijuana and we're legalizing it, and so on. So there's a lot of misinformation in the marketplace of ideas out there--I still hope I can call it the marketplace of ideas.

That is why we had that drug renewal strategy, so that we can deal not only with misinformation but particularly with correcting these things.

Among the young, my son happens to be the chair of the anti-drug committee at his high school. He himself has shared his sometimes critical views on what we do up here on this bill, and the like, but as I told him and I'm sharing with you, we have to look at the thing in all its components. In that regard, I think this is a balanced, fair, and effective piece of legislation.

The Chair: Thank you.

Just for the record, the chair sees a full working quorum for the committee.

We'll go to Mr. Marceau for three minutes.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chairman.

It is unfortunate that we do not have a longer period of time with you, Minister. I have two questions for you on two completely different subjects.

First of all, with respect to Bill C-10, the committee that was very effectively presided by my colleague Ms. Torsney tabled two reports, one on Bill C-10 and another calling for a bill on the problem of drug-impaired driving as quickly as possible. Can you tell us when you intend to table this bill?

Secondly, with respect to war crimes, you know that a campaign has been launched to have suicide attacks recognized as crimes against humanity. I would like to know if you are in favour of amending the Crimes against Humanity and War Crimes Act in order to make it quite clear that a suicide attack is a crime against humanity. I think that this is mainly a matter of clarification. Are you in favour of making this clear in the act? Thank you.

À (1030)

The Hon. Irwin Cotler: I can say that if we do not have enough time to answer these two questions and the other questions you may ask, I am willing to come back before this committee.

With respect to the central question you asked, I can tell you that the Criminal Code creates an offence of alcohol or drug-impaired driving. In the case of alcohol-impaired driving, in addition to the offence of impaired driving, there is a separate offence of driving with a blood alcohol level higher than the legal limit of 0.08. However, there is no limit for drugs, given that scientists do not agree on the concentration threshold at which point most drivers will be impaired.

Also, my officials recommend taking a closer look at sobriety tests rather than tests to determine drug concentration. A recent consultation focused on finding an approach that might improve police investigations of drug-impaired driving offences under the Criminal Code.

In response to the results, my department took action as quickly as possible. We want to allow police officers to order drivers to submit to sobriety tests and to provide samples of bodily substances. Currently, the Criminal Code does not give peace officers the power to order a suspect to submit to sobriety tests. These tests can only be administered if the suspect voluntarily consents to them. That is the problem we now have, and peace officers are very well acquainted with the signs of intoxication. I hope that we will soon have scientific and legal tests to administer to drug-impaired drivers, like those we currently administer to alcohol-impaired drivers.

As for your question on war crimes, crimes against humanity and suicide bombings, in my view, the crimes of these terrorists are now crimes against humanity. That is also the position of various NGOs like Human Rights Watch and Amnesty International, who have asserted that these forms of terrorism were now crimes against humanity. But I think that symbolically, some thought could be given to entering into a treaty against these terrorist acts. If such a treaty is based on the principle of universal jurisdiction, and I think that this can be done because that is the nature of these terrorist crimes, it could send a message to those who engage in these terrorist activities and provide us with another way to prosecute.

Mr. Richard Marceau: So, there is no problem with the idea of a treaty. You would be prepared to amend the Canadian legislation to stipulate that a suicide bombing is a crime against humanity, given the symbolic value that it might have and the message that it might send.

À (1035)

The Hon. Irwin Cotler: I have made a commitment regarding a bill. We now have legislation against war crimes and crimes against humanity. Not many people know that we have this legislation on crimes against humanity. We also have Canadian statutory provisions with respect to our obligations under the international convention against terrorism. So we can now rely on two enactments—the Crimes Against Humanity and War Crimes Act, and the other act, which deals with terrorist attacks within Canada—in relation to these forms of terrorism.

[English]

The Chair: Thank you.

Ms. Catterall, for three minutes, and then Mr. Nystrom.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): First, let me comment, Mr. Chair, that I felt that we were here to do the estimates, and clearly we don't intend to do that. So I hope we might schedule another meeting for that. Otherwise we all give up the right to criticize at any point in time how the justice department is spending money and whether it has funds and programs that we don't think it should have or that are overfunded--

Hon. Irwin Cotler: Or that we might need.

Ms. Marlene Catterall: --or that we might need, that the department is incapable of performing the functions that Parliament has given it, because we're not giving it enough resources to do so.

That said, Minister, as you know, the Prime Minister has indicated an interest in having a parliamentary review of judicial appointments. I personally am opposed to politicizing the appointment of Supreme Court judges and requiring nominees to put themselves in a partisan situation. It seems to me that our role as a justice committee might better be to ensure that there is a proper screening process in place, and I would appreciate your comments on how you see that happening.

Hon. Irwin Cotler: Well, as you mentioned, the Prime Minister has stated his commitment to some form of parliamentary involvement with respect to--and this has become even more immediate--the vacancy that has been created through Madam Justice Arbour's assumption of becoming the UN Commissioner for Human Rights, which we all otherwise congratulate her for. In doing so, the Prime Minister referred to the fact that there are a number of mechanisms that might be used with respect to parliamentary review. I'm sure the government and your committee will want to examine the various options involved.

My own understanding of the Prime Minister's position--one that I think will be shared by all of us here--is that he would oppose any politicization of the process that would also involve politicization of the judiciary, and that whatever process ensues is one that would be compatible, as he himself has put it, with the independence of the judiciary and the integrity of the Supreme Court.

I would specifically conclude by saying, number one, that whatever process of parliamentary review takes place--and we support the Prime Minister's commitment to a form of parliamentary review--that it takes into account, as the Prime Minister has appreciated, the constitutional framework within which this parliamentary review process takes place.

From a constitutional point of view, we have to understand that at this point the Constitution authorizes the appointment of judges to the Supreme Court of Canada through the means of an order in council. It's the executive branch of government that makes the appointment, and from a constitutional point of view this is not a power that can be otherwise delegated. That's number one.

Number two, although this isn't a secretive or partisan process, because it's not known, regrettably, it's deemed to be secret and partisan. We do have a comprehensive consultative process in place to give effect to the responsibility of the executive, with power of government, with respect to the appointment of Supreme Court judges.

In other words, at this point, the comprehensive consultative process envisages the Minister of Justice consulting with the Chief Justice of Canada, the chief justice of the region or province from which the appointment is to be made, the attorney general of that province, the head of the Canadian Bar Association, the head of the regional bar association, the law school deans, and any other interested stakeholders and parties who wish to give expression to their views. So there is now a comprehensive consultative process.

To this we are now adding a parliamentary review process, in the interests of the democratic participation principle to have a parliamentary component to that process. But as I said, it is a parliamentary component that takes place within the framework of the constitutional parameters within which we operate and, I would say, to perhaps not only take note of, but where possible to refine and improve the consultative process.

I hope to be releasing soon a protocol that will describe exactly how we do appoint judges to the Supreme Court of Canada. I think that will at least assuage those who feel that the process is either secret or partisan. The release of the protocol may in fact help people understand why we've been able to be the beneficiaries of such an excellent Supreme Court, that there has been in place a comprehensive consultative process, which has produced excellent nominees for the Supreme Court of Canada.

I look upon the parliamentary review process as building upon what we now have in place to help improve it and refine it, with a view, of course, to preserving those bedrock principles of independence of the judiciary and the integrity of the court.

À (1040)

The Chair: Thank you.

Mr. Nystrom, you have three minutes.

Hon. Lorne Nystrom: Mr. Minister, I have another policy-type question, in terms of the legal aid system we have in this country. I realize there's a lot of provincial jurisdiction here, there's some federal funding, it's interprovincial, it gets on to your favourite topic, the Constitution. I'd like to ask you, how do we provide legal aid to more poor people who don't qualify today?

Today, the threshold, depending on the province, may be $10,000 or whatever before you qualify for legal aid. Therefore, there are many, many poor people who don't qualify. Do you have any thoughts about raising the threshold and using what influence you may have with the provincial attorneys general or ministers of justice, in terms of federal funding that would be an enticement, maybe, to raise that threshold?

I realize that's a very simple question, with a very easy answer.

Hon. Irwin Cotler: It's actually a profound question, although the answer may not be profound.

We're really talking here about the foundational principle of access to justice. Access to justice is really a pillar in the whole democratic process. So when we look at this thing, I take it seriously--and for another reason. My first job was as a professor of poverty law. My son says I've never left being a poverty lawyer. So the whole question of law and poverty is really a generic concern. We are committed as a government--as I know this committee certainly is committed--to ensuring that economically disadvantaged Canadians have equitable access to legal aid.

Our commitment to legal aid was reaffirmed in the 2003 budget, and again now with the budget for 2004. There are two types of legal aid: there's criminal legal aid and there's civil legal aid. From the jurisdictional point of view, we have the jurisdiction with regard to criminal legal aid. When it comes to civil legal aid, that of course is under the jurisdiction of the provinces, although there is a direct transfer, through the health and social transfer, to the provinces for those purposes.

A component of the increased federal commitment for criminal legal aid is modest funding. I admit that it's modest, and we have to look at ways in which that can perhaps be....

I've been discussing with my counterpart attorneys general funding for a number of civil legal aid pilot projects focusing on family poverty, immigration, and refugee legal aid throughout Canada. In each instance, they've brought to my attention the expanding nature of immigration and refugee legal aid, for example, and also legal assistance to the disadvantaged.

Issues of jurisdiction brush up against issues of policy here. For example, in the matter of immigration and refugee legal aid, the Attorney General of British Columbia, with whom I met two weeks ago, believes the federal presence in that whole process is such that the provinces should not be burdened with it. Yet this falls under the component of civil legal aid, and is now a provincial responsibility.

If you look at it from a budgetary point of view and you look at the lines in the budget, year after year we have significantly augmented our contribution to both civil legal aid and criminal legal aid. In that regard, we have sought other initiatives by way of an innovation fund that can be drawn upon for pilot projects to specifically protect those who are most disadvantaged.

I think we're going to have to explore to what extent we may be able to expand. We've had a network of neighbourhood law offices across this country. It began in Quebec in Pointe-Saint-Charles, and Parkdale in Ontario. We're going to have to look at this whole notion of neighbourhood legal services, of community legal clinics. So even our notions that we talked about earlier with respect to community justice and restorative or participatory justice--the kinds of things the Law Reform Commission talked about--can find expression in the manner in which we deliver legal services and use things such as our innovation fund for those purposes. In collaboration with our counterparts in the provinces and the territories, we can look at innovative ways to do better with what we have now, at the same time as we continue to augment those resources in a civil and criminal legal aid approach.

From my discussions with the attorneys general I've met with--and I've met with most--we are going to centre this issue at our next federal-provincial-territorial meeting of attorneys general so it will have primacy on our agenda.

À (1045)

The Chair: Thank you.

Mr. Cadman is next, for three minutes.

Hon. Irwin Cotler: I met just two weeks ago with the Attorney General of your Province of Saskatchewan.

The Chair: Another committee may be taking this room at 11 a.m., which may influence our adjournment time. We'll go to the steering committee right after that, and we'll be moving to Room 306.

Mr. Cadman.

Mr. Chuck Cadman (Surrey North, CPC): Thank you, Mr. Chair. I'll be brief.

Thank you, Minister, for appearing today.

You mentioned in your opening remarks about the seminar earlier this week on trafficking in persons, and I was wondering what your intentions are. Where are we going with that? Are we going to do an awful lot more studying and talking about this, or are we actually going to see some concrete action on behalf of the federal government to address this issue?

I am personally aware of a program that's been developed by a couple of constables out of the Vancouver Police Department that is being used right across western Canada and down into the western United States. The FBI appears to be interested in it, other jurisdictions are interested in it, and yet they seem to be running up against some problems with getting some acceptance from this government. Rather than spending time looking around the world and reinventing the wheel, are we ready to start looking at some home-grown solutions that are right under our noses?

À (1050)

Hon. Irwin Cotler: Thank you for your question, Mr. Cadman.

Because I know we're moving to a close, I really want to thank the members for all your questions this morning. I feel it's been informative and enlightening for us. We're really involved with the committee in a kind of partenariat in terms of the pursuit of justice here. So I don't see this as any kind of partisan approach. We have the public good involved, although whenever I use that term now I know it has other rayonnement somewhere else, but we have the public interest at the forefront.

The question that you asked really touches on one of the most compelling human rights concerns that we have today. We tend to look at issues in silos, so we talk to people in trafficking, and some of them look at it as a criminal law problem, some of them look at it as an immigration law problem, some see it as a public health problem, some see it as a law enforcement problem, and some see it as an immigration problem. You can go on and on.

Really, it is one of the most pervasive and persistent assaults on human rights that we have today. And that's why I referred to it.... And I'm not the author of that term. The former Assistant Secretary of State for Democracy, Labour and Human Rights in the United States, Professor Harold Koh, now dean of the Yale Law School, coined the description, when you refer to what is now the “global slave trade” in trafficking and persons, particularly women and children.

We hosted a seminar this week in which two Vancouver police officers were there and spoke at the conference in that regard. I'm happy to advise--and I wouldn't have known this--that the federal government paid for the two Vancouver police officers to come to the conference.

The point here is that we want to involve all the stakeholders in this type of conference, the police and prosecutors, representatives of victims' groups, NGOs, and federal-provincial-territorial personnel.

Now I will go on to the specific initiatives. Specific initiatives are number one. We are going to look at reforming the Criminal Code so as to include a specific trafficking offence. Let me say, we do have trafficking-related offences in the Criminal Code. We have offences that deal with forcible confinement, with extortion and sexual assault, and the like. So we do have offences, and charges have been laid with regard to trafficking-related behaviour under these Criminal Code offences. And we do have a specific offence right now, enacted in 2002, in the Immigration and Refugee Protection Act, specifically with regard to trafficking.

In my view, we would need--and the committee may wish to look at this as well--a specific offence with regard to trafficking in persons that deals not only with bringing the perpetrators to justice but deals also with the protection of the victim. So that's one thing.

The second thing is we have now set up, for the first time, with a formal mandate, an interdepartmental working group regarding trafficking that draws upon some fifteen different departments and agencies that will now be working with our provincial and territorial counterparts. The importance of that is that this group up to now was an ad hoc group without an express mandate. It's now been given the status of an institutionalized working group with an express mandate, and that express mandate will provide us with what we've never had up until now, which is a focal point in government for the development of comprehensive strategies, programs, and policies, as we are mandated to do under the optional trafficking protocol to the convention regarding organized crime.

We have never yet had this focal point. We will. We've involved the RCMP, and they will now be involved in a set of initiatives, including the formation, right now as I'm speaking to you, of an investigative unit specially with respect to trafficking in persons that will have a domestic and an international component.

We are going to be meeting with our counterparts in different parts of the world with regard to that. One of the leaders in this has been the United States. And I want to hasten to add that the initiative in the United States with regard to trafficking--and I want to be very fair politically here--although it's been recently credited to President Bush, was actually begun by Harold Koh, whom I mentioned, when he was the Assistant Secretary of State for Democracy, Labour and Human Rights. As he put it, while he has a lot of differences with President Bush, on this particular issue he joins with President Bush in that bipartisan approach.

À (1055)

I was supposed to be meeting with John Ashcroft--

The Chair: Mr. Cotler, your enthusiasm for the project is evident--

Some hon. members: Oh, oh!

The Chair: --and it's outstripped only by our shortage of time here. The other committee needs to move in to prepare.

Hon. Irwin Cotler: And I need to be at cabinet.

The Chair: Now, Ms. Catterall, you had a question, but I'm going to bribe Ms. Catterall. I'd like you to move the motion on the budget that has been distributed. This will allow us to obtain some interim funding for our future work.

Ms. Marlene Catterall: I'd be happy to do that.

(Motion agreed to) [See Minutes of Proceedings]

The Chair: Thank you, colleagues.

We are actually out of time. The other committee must move in.

Ms. Marlene Catterall: Could I make a one-minute comment, then? I will leave it to the minister to respond at another time. It's tangentially related to the estimates, and it concerns the issue of the costs of court proceedings and so on.

There had been an alternate dispute resolution unit within the Department of Justice, which I understand has now been closed down. The department may want to look into a perverse provision in either Treasury Board policy or legislation that encourages litigation. If a department settles a dispute and it requires a payout, that comes out of departmental funds. If it goes to court, that comes out of general revenue. It's clear that the incentive for departments is not to settle disputes with contractors or whomever but rather to go to litigation to protect their own budget.

So I would ask you to look at what can be done to improve the use of alternate dispute resolution in cases that don't have the significance of many of the ones we do have to put a lot of resources into, and therefore hopefully provide more resources for what is most important.

Hon. Irwin Cotler: I'll just say that we will reply in writing, but for the record, the ADR unit has not been closed down; that is a priority in our work.

Again, I just want to thank you all for your informed questions and for the exchange.

The Chair: It's been an excellent meeting. Thank you, Minister Cotler, and departmental officials.

Colleagues, we're adjourned. Please, we'll move over to Room 306 for the steering committee. We're adjourned.