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View Françoise Boivin Profile
View Françoise Boivin Profile
2014-12-09 16:35
Thank you, Mr. Chair.
You will recall that, on Thursday, almost two weeks ago, following a motion moved by Mr. Casey regarding the Supreme Court's appointment process, I proposed another motion. I gave the government the benefit of the doubt. I was twice told by the committee's government members that they might support my motion. So I did this in good faith, and I am sure everyone has done the same and invested the necessary efforts.
However, I will use the few minutes I have to plead with the Conservative members on this committee. They are Dan Albas, Blaine Calkins, David Wilks, Robert Goguen, Bob Dechert and our chair, Mike Wallace. To my knowledge, we make our own decisions. The motion I put forward reads as follows:
That the Committee undertake a study on the best transparent process for the nomination of judges in all courts under federal jurisdiction, including the Supreme Court of Canada; and that the Committee reports its findings to the House.
If I may say so, I think that this is a common-sense motion. I'm not saying that because I moved it, but because I think it is non-partisan. It does not prejudge the decision the committee may make following its consideration and imposes no time pressure.
I am very aware of the government's agenda and the bills before this committee. Nevertheless, this is a relevant study in light of what we have experienced since 2011, when I became a member of this Parliament. A number of appointments have been made to the Supreme Court since then. However, there are many vacant positions in the superior courts of various provinces. The staffing of those positions is already included in the budget. I think it is time to do something about this.
In Quebec, we lived with Bastarache Commission in a specific context. We have reviewed the way appointments are made to try to be as non-partisan as possible, in order to ensure to do exactly what the Minister of Justice constantly answers when I ask him about this during House of Commons question periods. I also think that this is truly at the forefront of the accessibility to the justice system issue. The impression Canadians have of justice and the actual justice system is also something to consider. There is often nothing worse than impressions and rumours that do not reflect reality.
When people start to believe that their justice system is somewhat partisan—whether or not that is true—it may be time to stop and reconsider. Studies were carried out on this issue over 10 years ago. Attempts were made to operate in a certain way, but those attempts were interrupted in the middle of the process. All sorts of suggestions have been made, but even specialists do not agree on those issues.
I have no preconceived ideas. Of course, I have some ideas, but I am still hoping that we will someday manage to find a system that, as the minister says, will bring together the most qualified people—in other words, a system where people would not have the slightest doubt about the individual hearing their case.
As all lawyers around this table know, there is nothing more frustrating than having to tell your client, in court, that the day will be difficult because of anything having to do with the judge. We should at least be able to count on complete judicial impartiality. That would actually be good for judges, as well, since they are the primary targets of any public criticisms.
The message I would like to send through this motion is that it is time to at least commit to beginning the process. Although the Department of Justice and the Minister of Justice do not agree, and neither does the Prime Minister, as we often say, committees are masters of their responsibilities, their own procedure and their files.
At some point, we have to stand behind our comments. I think that, if we are independent, despite the Conservative majority, we have to have the courage of our convictions when we believe in something. I think this study is necessary. Some specialists are already considering this, and all sorts of seminars are being held.
It seems to me that, as our constituents' leaders and representatives, we should not be trailing behind all the constitutional experts, lawyers and commentators of the country. We should rather be at the forefront and should undertake this study. I dare hope that my colleagues will vote on the basis of their own convictions and acknowledge the common sense underlying this motion.
We may not even have the time to carry out the study, given all the files we have to consider. However, the Standing Committee on Justice and Human Rights should at least commit to undertake this study, whenever it can find the time, or to commission specialists to carry it out, so that people from all backgrounds, across the country, can submit briefs to us on this issue. I think that goes without saying.
We all know that this is the Governor in Council's prerogative. However, all party leaders have practically committed to make changes and to make the process as open and transparent as possible. However, we see that this has not really happened. That may be the best method, but a study on the topic should at least be carried out again.
This is the motion I am putting forward.
View Robert Goguen Profile
I want to thank my colleague for her motion. This is obviously a very large-scale motion. It calls for us to review the judicial appointment process, not only in the Supreme Court, but in all courts under federal jurisdiction. Yes, we know full well that this is the prerogative of the Governor in Council.
I am wondering whether it would not make more sense to move this motion in the House on an opposition day.
This issue, which is very touchy, should be debated in that arena, in my opinion. That way, the context would be entirely democratic and less restrictive than in this committee.
As you've mentioned with regard to the schedule, and I mean this quite frankly, voting on this would be somewhat theoretic because we now have two government bills, three private members' bills, and a study. Certainly a study of this nature.... I mean, we're studying the nomination of all judges, not just Supreme Court judges, and that would take a vast number of witnesses and sessions. It's just something that we're never going to get through before the next election.
Quite frankly, the motion would be academic, and despite the merit of it, I don't see it happening.
View Françoise Boivin Profile
View Françoise Boivin Profile
2014-12-09 16:44
I would like to come back to the issue of opposition days and respond to my colleague. Opposition days are fine and good, but during some of the past opposition days, we had little time to carry out a study. And the government does decide when opposition days are to be held.
We all have our opinion on what would be the best system, and I do not think I have the monopoly on the truth. The idea underlying the motion is to carry out a study. That means we would hear from witnesses of all backgrounds. They could be former judges, university professors, constitutional experts or average Canadians with an opinion on the matter.
In Quebec, we managed to obtain the Commission of Inquiry into the Appointment Process for Judges in Quebec, or the Bastarache Commission. It didn't take 15 years, but a certain number of hearings had to be held. The commissioner, a former justice of the Supreme Court, managed to establish guidelines that have helped free the judicial appointment process in Quebec from accusations of partisanship.
To be totally honest, whether we are part of the government or not, I don't want us to be seen as peddlers of influence. I can feel some of that here. I repeat, we are all striving—since these are the words the minister is constantly using—for excellence. If we are striving for excellence, the political side of the issue fades in importance. Maybe this wouldn't take as much time as you think and would not require the testimony of 150 witnesses.
People think that this will not be heard. Our colleague Mr. Leef, a member for Yukon, sponsored a bill on fetal alcohol spectrum disorder. I do not want my bill to be set aside while I am being told that it will be studied. If that's what you are telling me, I am a bit surprised. I am taking note of the fact that my colleague Mr. Goguen, Parliamentary Secretary to the Minister of Justice, is telling us that, given everything we have to do, we will not have enough time to conduct this study, which would, therefore, be theoretical. We are being told that the study will be more complex. When it's to the Conservatives' benefit, they use this type of argument, but when it is not, they say the opposite. It's a bit hard for me to accept such arguments given the context.
When we had to study part 17—I think—of the Criminal Code, which concerned the language of the accused, trials and so on, it took some time, but we managed to get it done. I do not want to hear that kind of argument in situations where we think something is worthwhile. Tell me that this doesn't make sense, that you already have another process, or whatever, but don't tell me that we don't have the time. Let's adopt this and send a clear message. This is what we think should be done. If we manage to conclude the study before election is called, so much the better, if not, it won't be the first time a bill has died before an election campaign. It will be happily brought back later on. I could list pretty much all the private member' bills that are before the House at one stage or another and that are at their 18th version.
Mr. Chair, with all due respect, this is not a very convincing argument. We get the impression that the government probably doesn't want to review the process. Democracy is all very well, and you will vote as you like. Nevertheless, it seems to me that this heartfelt appeal is coming from many sources, but a comprehensive response is once again lacking.
I don' know whether people have read La Presse of November 29, like me. The newspaper said something along the following lines:
Former justices of the Supreme Court of Canada are calling for the creation of a new process for selecting judges who will sit on the country's highest tribunal.
These are not some dummies; these are people the current government often selects as heads of commissions. Some people actually disagree with that approach, as it emphasizes the status of former Supreme Court justices. Their opinion should not be heard only when it benefits us. Those people are calling for the creation of a new process. I find it interesting that they don't all agree on this. It's just like all of us around the table; we don't all have the same idea.
The other day, Mr. Casey put forward a motion that called for a fully public process—with lists and so on. His colleague Mr. Cotler, a former minister of justice, calls for a different type of system. Someone else might be in favour of another approach. That is where we are. This shows what we need to do. At the very least, we should send the message that we believe that, given everything that is happening, it is time to look into this matter.
Just so the government would not feel like too much of a target, I was not talking only about the Supreme Court of Canada. I felt very generous the day I came up with this. The whole appointment process can become beneficial. In fact, the same issue comes up when it comes to appointments to superior courts, courts of appeal and other tribunals.
This is not aimed at a specific tier, but I think the same principles should apply as a result.
View Philip Toone Profile
Thank you.
I certainly agree with my fellow member, Ms. Boivin.
With all due respect to Mr. Goguen, I don't think holding an immediate debate in the House is the answer. That isn't necessarily the best place to have the debate since we wouldn't have the benefit of hearing from witnesses. We wouldn't have the opportunity to ask subject matter experts questions. There is nothing stopping an opposition motion from being proposed, but I think the right place to thoroughly study the matter is here, in committee.
View Philip Toone Profile
I think the appetite is there for it. The recent developments concerning the Supreme Court, in which the process wasn't the same as it had been for Justice Wagner, I think bears some reflection; it behooves this committee to take a few moments to determine whether that was really the method that it wants to replicate.
It's a recent phenomenon. We haven't been doing this kind of review for very long. The Chrétien government was the first to bring it up. They didn't have time to strike the committee, of course, but they tried. We've now had a couple of occasions in which the Prime Minister has opened the process to a more transparent procedure than we had here. I find it unfortunate that the last time we were unable to have one.
I take good note of Madam Boivin's comment that the motion doesn't only mention the Supreme Court. I think, as she said, this is an attempt to try to broaden the interventions and also an attempt to give us an opportunity to hear from as many people as possible about where we need to go next. But I hear from people back home, from a number of people, that the process we have in place of just having the Governor in Council make the determination simply isn't sufficient.
Do we want to go all the way to the American system, in which the Senate has to ratify every decision? I don't know. I certainly have a problem with the way the Americans are doing it right now. But there was a famous judge—Cohn, I think it was—in the States, who made the interesting comment, “Don't tell me what the law is; just tell me who the judge is.” We need to be able to give some sort of solid foundation whereby people can have more faith in their justice system.
I have a problem with judges being appointed who just come out of nowhere. We have recently had the appointment to the Supreme Court of a judge whom nobody had expected. The person didn't have any experience as a judge. She certainly has had a very interesting career as a lawyer, but her point of view regarding many of the important questions today is simply not known. We're going to have to wait to see what happens.
I've made it clear that I'm actually quite pleased with the nomination, if only because the individual comes from the Gaspé. I think that's definitely a plus.
But I think it's important that we take it beyond this; that we have some very solid grounds whereby to expose what a judge's experience is and what we might expect from them come the decision-making process. The confidence people have in our judicial system depends on more transparency.
A number of witnesses have a lot to offer at this level. I don't know how much time would be required.... I take good note that this committee has a lot of responsibilities and that a number of bills have to be processed through the committee. That's certainly a responsibility that has to be taken seriously, but there's no reason that time can't be negotiated such that the various bills have all the time available to them. I'll add to that the fact that this committee has shown a willingness to meet outside of normal hours of procedure, if required. Maybe this is a case in which it might be required as well.
Regardless, the process is important. I think we need to answer to the Canadian public that the House of Commons is going to ensure that the nominations that the Governor in Council makes will be appointments that people can have great faith in right from the get-go. Right now the question is there, whether people can have confidence in those nominations. I think they will have; I think time will prove it.
Nothing makes that clearer than the advantage of doing things out in the open. Fresh air gives everybody a little bit more confidence in the process.
The process that we have here today, where a judge is named by Governor in Council, and only by Governor in Council, I don't think is sufficient. There are an awful lot of jurists who have made that clear. I think that we should take good heed.
We have to ensure that the Canadian public is going to have as much faith as possible in our process. I don't think the process that was recently seen in this place was adequate. I don't think that just announcing an appointment is a process that we want to replicate. I suspect that the Canadian public expects more of us.
If there's one task that I suspect the Canadian public expects of us, it is to ensure that the Supreme Court and our justice system are truly independent of the executive and the legislative branches. The only way to know that is if we hear from them before they're appointed. We need to hear from those individuals themselves. We didn't get the chance to do it recently and I think that was a grave mistake.
We need to ensure that people have confidence in the system. In Quebec we've tried that with the Bastarache commission. We also have shown great interest in ensuring that the public has faith in our judicial system, especially with recent decisions regarding people accused in criminal cases that have certainly pushed the limits of the confidence people have in our justice system. The Quebec government took the steps necessary to ensure the public's concerns are addressed.
I don't think we did the same thing here. That was a shame and we should probably take the opportunity to learn from our mistakes and improve on them. This would be a good start.
I don't think it would require all that much time. I would really like to see it done. If we go by the fixed date election cycle, we have until October. It's not like we don't have any time; we have close to a year. Even with all the bills ahead of us, there's plenty of time. I don't think we should discount that. We should take this responsibility seriously.
Madam Boivin's motion has a lot of merit. I personally would like to see it adopted.
View Ève Péclet Profile
Thank you, Mr. Chair.
I'd just like to add my two cents to the discussion. And, in fact, Mr. Chair, I'll keep my remarks as brief as possible.
Since the parliamentary secretary is suggesting that we proceed by way of an opposition motion, I hope he'll be able to answer my question. If the opposition were to put forward a motion to allow the Standing Committee on Justice and Human Rights to undertake a study on the process for the nomination of judges, would the government support it? I think that's a question worth asking.
Just a bit of history here, and I think the minister was quite clear on the matter. Prior to the Conservative government's election in 2006, no process for the nomination of judges existed. I think everyone agreed that we needed to do something about that. The Conservatives tried to put in place a process, which unfortunately did not work. Even the minister came here and told the committee that the process had unfortunately failed.
So I think the question that needs to be asked is this. What do we do in that case? No process used to exist, and the one that was put in place ended up not working. Does that mean we are simply going to go along with having no process in place? If so, the Conservatives would be going back on their promise to establish a more public and inclusive process. It would be a shame to go back to how things were prior to 2006 and to be deprived of any process at all. At least the government had a desire to establish a process. And, according to the minister, that process did not work. So it needs to be improved, reviewed or completely overhauled. If the government votes against our motion today, is it likely that it will change its mind in the House and that the outcome will be different? What will the government say? Will it say that the process it put in place did not work? Will it say that it tried but wasn't successful, and so it is better to have no process at all?
That would be pretty disappointing. But it would save the government a lot of headache, given the heat it took for its nomination of Judge Nadon. It was repeatedly criticized on the issue. As for the validity of the nomination process, I think it is in the best interest of every parliamentarian to try to achieve the best process possible.
Are the Conservatives telling us that, because the process they tried to put in place failed—we can all agree that it was less than perfect—we are going to go back to the days when no process existed at all, putting an end to any further democratic debate on the matter, which affects vital institutions? That would be quite disappointing, indeed. In a nutshell, I would just like the government to explain one thing. If it does not want to undertake this study, what message does that send to Canadians? Does the government not want to establish a process because it wasn't successful? Is it better to go back to how things were?
When I go back to my riding and my constituents ask me what we are going to do about the nomination of judges, am I going to have to tell them that, unfortunately, the government no longer cares to fix that problem?
That is frustrating for a young person like me, who studied law and sees the benefit of reviewing how judges are appointed and how our democratic institutions operate. It's frustrating for young people of my generation to see that the government tried to establish a process, which, by its own admission, did not work. We are in a black hole right now.
Thank you.
View Françoise Boivin Profile
View Françoise Boivin Profile
2014-12-09 17:02
Am I the last speaker?
It's going to be very short.
My colleagues made some good points. Having participated in two of the last three nomination processes, I would just make a minor correction. The same process was followed for the nominations of both Judge Wagner and Judge Nadon. In the first case, everyone was unanimous in terms of being satisfied with the outcome of the process. In the second case, however, everyone was unanimous in their dissatisfaction with the outcome of the process. The nomination even gave rise to a Supreme Court challenge and subsequent ruling. We may have been on the right track, but somewhere along the way, something went wrong. So it would be a good idea to take another look at it.
Picking up on what my fellow member just said, I have to say it would be unfortunate if my Conservative friends were to throw in the towel after making such a collective and significant effort to come up with a better process.
What a shame it would be to throw in the towel now, given that the Conservatives widely criticized how previous governments had handled the matter over the years. I agree with my fellow member on that point. We weren't raised that way. As the saying goes,
“If at first you don't succeed, try, try, try again”.
I think we were almost there. As my colleague, Philip Toone, said, it wouldn't take very long and we could always negotiate some time to do it, even if we had to meet outside normal committee hours. Robert and I sat on the Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices that met during the summer. I was on it for two summers. We also did an intensive study of the prostitution bill at that time. Given that we're dealing with an institution as important as the Supreme Court of Canada, not to mention all other federal courts, I would think we could find a bit of time to do this study.
Although we can't reveal what the committees discussed, we may have a good idea about how to improve the process so we don't make the same mistakes.
It may not be as complicated as the government is suggesting. As I have already mentioned, this is an issue of interest to many. Conferences have been held on the subject. Let's not let others dictate what we should put in place. Let's show some leadership here.
That is my final word on the subject.
View Françoise Boivin Profile
View Françoise Boivin Profile
2014-11-27 15:48
Thank you, Mr. Chair.
Mr. Minister, thank you for agreeing to change the date of your appearance before our committee so that we can study the votes allocated to your department under supplementary estimates (B) 2014-15.
Before getting to the heart of the matter, I would be remiss if I didn't share my thoughts with you about today's top news. As a result, more people are probably following our committee today than on many other occasions when we deal with various topics. I am talking about the appointment made to the Supreme Court of Canada to fill the position of Justice Lebel, who is retiring. Let me also take this opportunity to commend him for all his years of service. As a lawyer from Quebec, I am proud of the work accomplished by Justice Louis Lebel over the course of his career.
He will be replaced by Suzanne Côté. This is the first time I have seen a lawyer directly appointed to the Supreme Court. It is not common, but it is interesting. I am very pleased that you have finally agreed to appoint a woman to the Supreme Court of Canada. Congratulations. As you know, I have often talked to you about that. In my view, it is important for the Supreme Court to show equality between men and women, as much as it can with an uneven number of members. This is the kind of equality we must have in Canada. Congratulations on doing that.
Today, we are hearing good things about the Hon. Suzanne Côté, as we will have to call her soon. Whether you like it or not, you know as well as I do that, when we talk about the Supreme Court of Canada, the process is always the elephant in the room.
I would like to digress for a moment. Your government has just made the final appointment to the Supreme Court of Canada. Unless someone resigns, I don't think there will be any positions to fill at the Supreme Court for some time. Mr. Minister, perhaps we should use that time to think about the process. People on the ground have many ideas. Various experts have talked about it and made various suggestions. Over the years, since the early 2000s, we have been trying to use different methods. I think Canadians are entitled to a process that is as transparent as possible.
In addition to the fact that Suzanne Côté's appointment is excellent, I would like to be able to tell everyone who asks me whether it was a political or transparent process. However, I will not be able to do so because everything was done behind closed doors. That is always a bit irritating. I think it is possible to make the same decisions using a more open process.
Mr. Minister, I hope that you will be willing to allow this committee, or any other committee, to study the issue and see whether we could do better. When I say “do better”, I am not talking about a better appointment, but about improving the process. That is what I am hoping for in this situation. I find it regrettable that there is no ad hoc committee because it is always useful to introduce new judges to Canadians. With that, I conclude this part of my remarks.
I would like us to do this for all the other appointments. We are talking about the budget here. Mr. Minister, some items are already in your budgets, such as some judicial positions that are still not filled. I am upset, because we are talking about access to justice, but there are still 23 vacancies at the Ontario Superior Court. All the judges I meet during my consultations tell me that this has a huge impact on access to justice and on the way justice is done. Judges are sometimes swamped. We should take care of that and fill those positions as soon as possible.
We also need to make sure that the process of appointing the judges is not political. It needs to be as transparent as possible because, as you explained in the House this week, we always strive to reward merit, to reward people's skills and qualifications. This should also apply to the courts.
I will let you respond to those few comments.
View Peter MacKay Profile
Thank you very much, Ms. Boivin.
As always, I appreciate your approach and agree with you on many of your comments.
This decision is the result of a number of consultations with many people from Quebec—the province where you live—who work in the justice system. Specifically, there were people from the Barreau du Québec and the Canadian Bar Association. So a lot of people were consulted and expressed all the opinions needed to make a good decision.
I also appreciate your view on the process. What you said about transparency and the trust of Canadians is really important.
Unfortunately, the process in which you participated was tainted because of a leak.
The integrity of the appointment process, not to mention the confidence that Canadians have in the individuals, is extremely important. I think we can both agree. My concern is that there are individuals who may not apply or would be dissuaded from putting their names forward if they felt—
View Sean Casey Profile
Lib. (PE)
View Sean Casey Profile
2014-11-27 16:04
Thank you, Mr. Chair.
Minister, allow me to make it unanimous in terms of the parties represented here in thanking Justice LeBel for his years of service and in welcoming Suzanne Côté to the Supreme Court. I also share the view of Madame Boivin when she indicated that the fact that you have chosen to nominate a woman is a positive step towards correcting the gender imbalance in the court. I would also offer my support in that regard, Minister.
She said something else that I would also align myself with. I appreciate your candour with respect to being open to changes in the process going forward that potentially allow for parliamentary involvement. As you know well, all parties agreed under the previous administration that a closed, secretive process wasn't appropriate, and there was a process that you acknowledged worked quite well in the appointment of Justice Wagner.
I've gone one step further, Minister, and put the committee on notice of a motion, which I propose to present now, and that is:
That the Committee agree with the recommendations of the Honourable Peter MacKay, Minister of Justice and Attorney General, submitted on May 5, 2004, when he joined with the Honourable Kevin Sorenson, Minister of State for Finance; the Honourable Vic Toews, former Minister of Justice and Attorney General; Mr. Garry Breitkreuz, Member for Yorkton-Melville; and Mr. Chuck Cadman, former Member for Surrey North, to recommend that “[t]here must be substantive input from all the provinces and territories into the compilation of a list of suitable Supreme Court of Canada nominees”, “[t]here must be a public review of a short list of the nominees before a parliamentary committee”, and “[t]here must be Parliamentary ratification of the chosen nominee.”
View Peter MacKay Profile
Mr. Casey, let me respond this way. It's somewhat ironic that you, representing the Liberal Party, would be wrapping around the words of Peter MacKay in 2004 when they were soundly rejected by the justice minister, Mr. Cotler at the time, so much so that they had to be put in a dissenting report that clearly indicated that your party—albeit you weren't there—made the very overt decision to not follow that advice.
There have been various processes used over time. As I said to Madam Boivin, upon forming the government in 2006, we initiated the most open, inclusive process that's ever been seen in the Canadian judicial system, which included this parliamentary process of a committee, of recommendations, of working from a list. Suffice it to say that I personally believe that processes can always be improved and should be revisited from time to time.
One must also keep in mind the circumstances and the tenor of the times. We needed to move quickly, for example, with respect to the appointment of Mr. Justice Cromwell, as I recall, because of a pending election and the need to have a full complement. Similarly, and more recently, with the appointment of Mr. Justice Gascon and Madam Côté, I would suggest that because of the importance of having a full complement from the province of Quebec those circumstances dictated that we move and use the alternative process.
On the consultative part of this exercise, is it aided or hindered by the parliamentary participation of having the committee go out and do these consultations and then report back to me or through me to the Prime Minister? That remains to be seen. When there are leaks and when the process itself is impugned, and individuals who might otherwise want their names considered are dissuaded from doing so because of the threat that their names could be publicly disclosed, one has to weigh that, which is what we did in this instance and therefore chose to take an alternative route and consult directly with the most important individuals. In this case we consulted the Supreme Court of Canada, the supreme court of Quebec, prominent members of the legal community, of course the Minister of Justice from Quebec, and other practitioners, and in some cases, retired judges, who weighed in on this important decision and gave us advice.
View Françoise Boivin Profile
View Françoise Boivin Profile
2014-11-27 16:39
Thank you.
For the Office of the Commissioner for Federal Judicial Affairs, there is an additional budget to pay inquiry costs under the Judges Act. Could you tell me if there are more lawsuits against judges? What exactly is behind that?
William A. Brooks
View William A. Brooks Profile
William A. Brooks
2014-11-27 16:39
The issue there, and the request for the $1.6 million in supplementary estimates (B), is to support the Canadian Judicial Council, which is one of the mandates of our office, in respect of their conduct and inquiry work this fiscal year. They presently have, or they had until the other day, three ongoing public inquiries into the conduct of judicial judges. These are very serious inquiries that could result in a recommendation that the judges be removed from office. The Douglas inquiry was a very hard fought one.
The $1.6 million was our anticipated best estimate of what the costs would be for these three inquiries for the balance of this fiscal year.
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