The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Brian Warr, Deputy Speaker of the Newfoundland and Labrador House of Assembly.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Moncion, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

Hon. Marc Gold (Government Representative in the Senate) tabled the reply to Question No. 151, dated April 26, 2022, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding Employment Insurance.

Senator Gold: I want to thank the honourable senator for his question. The Government of Canada takes the needs and feelings of victims very seriously. Everyone needs to live in safety, but I want to reiterate that a judge’s decision in applying the law must be understood and respected as an important part of our justice system. The Government of Canada has confidence in our justice system, including the appeal processes that are carefully regulated in our legislative system.

[English]

Hon. Marc Gold (Government Representative in the Senate) tabled the reply to Question No. 150, dated April 26, 2022, appearing on the Order Paper and Notice Paper in the name of the Honourable Senator Plett, regarding the proposed Canada Disability Benefit.

Hon. Denise Batters: Would Senator Dalphond take a couple of questions, please?

[Translation]

Senator Dalphond: It would be my pleasure, Senator Batters.

Hon. Pierre J. Dalphond moved second reading of Bill C-9, An Act to amend the Judges Act.

He said: Honourable senators, it is my pleasure to rise to commence second reading debate on Bill C-9, An Act to amend the Judges Act, as sponsor of this legislation.

This 25-page bill proposes to modernize the complaint process in relation to the conduct of about 1,200 federally appointed judges sitting on the Supreme Court of Canada, the provincial courts of appeal, the Federal Court of Appeal, the provincial and territorial superior courts, the Federal Court and the Tax Court.

For those of you who were in this chamber on June 15, 2021, you may recollect that I delivered a speech on that very topic while initiating second reading of Bill S-5. We then adjourned for the summer, and an election was called. I don’t think that was in reaction to my speech.

For those who were in this chamber on December 7, 2021, you may recall that I tried again, while initiating second reading of Bill S-3. Further to a ruling by the Speaker of the other place that it was a money bill, Bill S-3 did not proceed further in the Senate and was reintroduced in the Commons as Bill C-9.

Both Bill S-3 and Bill C-9 are identical, subject to one amendment adopted in committee at the other place. Today, it is my third attempt to have the Senate adopt the bill to reform the Judges Act in connection with the complaint process. So, as they say in the language of Shakespeare, hopefully, the third time is the charm.

Colleagues, as you know, judges hold special positions of responsibility in our democratic society and system of laws. They’re expected to conduct themselves in a manner consistent with their independence, impartiality and ability to fulfill their functions. This includes outside the courthouse.

To guide them, the Canadian Judicial Council published a written document called Ethical Principles for Judges. In 2021, this document was updated and modernized after years of consultation with chief justices, puisne judges, the public and key justice system stakeholders from across Canada. Incidentally, our colleague Senator Cotter was involved in the redrafting of these principles.

The 2021 document provides judges with guidance in the courtroom and outside the courthouse and gives the public a better understanding of the role of the judiciary.

Bill C-9 is about an issue related to judicial conduct, namely, the processing of complaints against judges. The bill proposes a process that is fair to the judge, transparent to the claimant and the public, effective in achieving resolution, cost-effective, respectful of judicial independence and worthy of Canadians’ confidence and trust.

My speech will start with a brief historical context regarding the judicial function, then will describe the current complaint system and its shortcomings, ending with a review of the main provisions of Bill C-9.

(1510)

[Translation]

You will recall the historical context. Over the centuries, it quickly became apparent that it was better to have disputes settled by third parties considered wise enough or knowledgeable enough rather than at the pleasure of a king, or by resorting to violence.

In the Magna Carta, snatched from King John by the English barons on June 12, 1215, we find the idea of the rule of law, habeas corpus, which seeks to protect free men from arbitrary arrest, and the right to be judged by one’s peers. Several great British authors see it as the primary source of judicial independence from royal authority and from Parliament, which over time became one of the fundamental principles of democracy in the United Kingdom.

I’ll skip a few centuries to get to the middle of the 1860s. Mindful of the importance of the independence of the judiciary, drafters of the Constitution of 1867 made sure that, once judges are appointed, they couldn’t easily be removed, hence section 99 of the Constitution Act, which states:

 . . . the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

In other words, the executive can’t act alone and each chamber has veto power.

[English]

In 1971, Parliament amended the Judges Act to create the Canadian Judicial Council — a body chaired by the Chief Justice of Canada, and comprised of every chief justice and deputy chief justice of the courts of appeal, superior courts and the federal courts.

The council’s dual mandate is fostering the continuous education of judges and overseeing the conduct of judges. As a critical part of this mandate, the council received sole authority to investigate allegations of misconduct against federally appointed judges. Furthermore, a process to dismiss a judge could no longer commence before Parliament until the Minister of Justice had received a report recommending that the judge be removed from office.

Over the last 50 years, the number and the nature of complaints made to the council has evolved considerably. In the early years, the council received, on average, 10 complaints per year. However, in the last 15 years, it has been about 600 per year.

In its last annual report, the council noted that from April 1 to March 31, 2021, there were 551 complaint-related matters reviewed. Many were not prima facie valid complaints — for example, complaints filed against a judge appointed by a province, or related to the fact that the party was unhappy with the judgment. Of the complaints, 203 were closed, 285 were closed under the authority of the executive director, 18 were reviewed by a member of the Judicial Conduct Committee, 3 others went before a review panel and 1 matter was before an inquiry committee.

[Translation]

By imposing a process whereby judges investigate allegations of misconduct against their colleagues, the Judges Act protects judges from acts of intimidation or retaliation by the executive power or a party dissatisfied with a ruling or the popular pressure of the day.

In addition, since the act provides that we, parliamentarians, can’t remove a judge after having received the report and recommendation of the judges responsible for the investigation, Canadians can rest assured that this draconian measure will only be taken when it is truly justified. The Supreme Court has established in previous rulings that the investigative process must ensure procedural fairness for judges subject to an investigation and preserve judicial independence at all times.

During the 2010s, the Judicial Council adopted various amendments to its internal rules to make its complaints process more efficient. However, these efforts couldn’t eliminate the obstacles created by the requirements of the act itself.

In the opinion of several organizations, including the Judicial Council, the Canadian Superior Courts Judges Association and the Canadian Bar Association, the structures and procedures set out in the Judges Act must be modernized. After all, they were created in 1971, when the council received about a dozen complaints per year. It is high time to adapt to the new situation.

Worse still, we’ve seen that these procedures can be abused by some of the judges under investigation, which undermines the public confidence that the system that was put in place in 1971 was supposed to inspire.

[English]

In regard to the shortcomings of the current model, several issues have emerged as causes for concern: Two of these are the length and cost of judicial conduct proceedings.

Inquiry committees constituted by the council from time to time are considered to be federal administrative tribunals. As such, their decisions, whether interlocutory or final, are reviewable by the Federal Court, as well as by the Federal Court of Appeal, and, with leave, by the Supreme Court of Canada.

This gives a judge, subject to the process, an opportunity to initiate as many as three stages of judicial review, in connection with many decisions from an inquiry committee, including interlocutory decisions.

This has proven to be a recipe for adversarial zeal and abuse of process with individuals launching judicial review proceedings, seemingly to effect delay rather than pursue valid legal interest. Judicial conduct inquiries can be delayed for years as a result.

In a recent case, a complaint process initiated in 2012 resulted in a recommendation from the council — that a judge be removed from office — that became final only nine years later.

Commenting on this case after the Federal Court of Appeal’s decision was rendered in the summer of 2020, in a press release, the council said:

Specifically, over the past decade, we have all witnessed public inquiries that have taken far too long and have been far too expensive. We have witnessed countless applications for judicial review, covering every imaginable aspect of the process. These have been enormously time-consuming, expensive and taxing on our federal courts. Furthermore, all costs, including those incurred by the judge who is at the centre of the inquiry, are fully funded by the taxpayer. The judge at issue continues to receive full salary and pension benefits as time passes. This leaves the perception that the judge benefits from these delays. Highlighting this problem, we refer to a painfully obvious pattern, as opposed to any individual case: a pattern that is contrary to the public interest and access to justice.

At the close of this process concerning that particular judge, on February 25, 2021, the Chief Justice of Canada, the Right Honourable Richard Wagner, said:

As Chairperson of the Canadian Judicial Council, I reiterate the need to adopt legislative reforms that Council has long called for in order to improve the judicial conduct review process, and thereby maintain public confidence in the administration of justice. On behalf of the judiciary and the public it serves, I therefore welcome the commitment of the Minister of Justice and the Prime Minister to proceed with those reforms as soon as possible in order to avoid any such saga in the future. As the Minister of Justice said today, “Canadians deserve better”.

(1520)

This was in February 2021. I stand before you in February 2023, trying for the third time to achieve that call to action. I hope this time is the right one and that you will support me so that we can complete the business of the bill that was unanimously adopted in the other chamber.

During that entire nine-year period, until the judge resigned before a motion to dismiss him was contemplateded, the judge continued to receive his full salary and accumulated enough years of service — “service” — to become entitled to pension benefits. In addition, because a judge must serve a minimum of 10 years to be entitled to any pension benefits, he spent 9 years in proceedings. In addition, the legal fees and costs accrued by the council and the judge were assumed by taxpayers, even in relation to an appeal ruled abusive by the Federal Court of Appeal. As a matter of fact, millions of dollars were charged to the public purse.

The 2021 Budget Implementation Act put an end to the accrual of pension benefits by amending the Judges Act to freeze a judge’s pension entitlements as soon as the council decides that the judge’s removal from office is justified. I’m sure you noticed that when we adopted the bill implementing that budget, it was that thick. But it was there; I saw it.

Unless the decision is overturned on appeal or rejected by the Minister of Justice or by either chamber, a judge now is not entitled to the pension benefits accumulated after a decision of the council that their removal is justified. There is no longer a personal financial benefit for years-long judicial proceedings to contest the council’s decision to propose their removal.

Another shortcoming of the current process is that the Judges Act only empowers the council to recommend for or against the removal of a judge. The council cannot impose lesser sanctions for misconduct that falls below the necessarily high bar governing judicial removal. As a result, instances of misconduct may fail to be sanctioned because they clearly do not approach this high bar but instead will deserve a lesser sanction such as an obligation to do training on a specific issue.

There is also a risk that judges may be exposed to full-scale inquiry proceedings, and to the stigma of having their removal publicly considered, for conduct that would be more sensibly addressed through alternative procedures and lesser sanctions.

Amendments to correct these defects would not only render conduct proceedings more flexible and proportionate to the allegations that prompt them; they will provide greater opportunities for early resolution and reserve the costliest and most complex hearings for the most severe cases.

[Translation]

Finally, the Judges Act requires that a recommendation for the removal of a judge be made to the Minister of Justice by the council itself rather than the inquiry committee established to review the conduct of a particular judge. Thus, once the inquiry committee has reached its conclusions, sometimes after a few years, the council must deliberate, with at least 17 members present, and prepare a report and a recommendation to the minister. The members must review the entire file before the inquiry committee, hear the judge’s submissions if he or she wishes to make them, and then decide whether to confirm the recommendation of the inquiry committee.

This approach goes beyond what procedural fairness requires and places a significant burden in terms of time and energy on at least 17 chief justices and associate chief justices.

As the council itself recognizes, this approach is inefficient and contrary to the public interest in terms of the optimal use of judicial resources. This too must change.

I also want to mention the public consultation on the disciplinary process reform conducted by the government in 2016, which revealed strong support for developing a more transparent disciplinary process that is easier for the public to access, especially because of the increased opportunities for members of the public with no legal training to take part in the process.

The government then benefited from discussions with representatives of the council and the Canadian Superior Courts Judges Association, an association that represents almost all 1,200 superior court judges, about their concerns and respective visions for the disciplinary process reform. You can be certain that as a former president of this association and before agreeing to sponsor the bill, I ensured that my former colleagues agreed with its content. I’ll come back to the importance of these consultations at the end of my speech.

For the time being, I must point out that almost all judicial stakeholders support the proposed changes, which will improve the effectiveness, flexibility and transparency of the disciplinary process for judges, while respecting the principles of fairness and judicial independence and reducing the potential for abuse and associated costs. Those are the objectives of the bill.

I will now describe some of the key aspects of the proposed new process.

[English]

The legislation before you will introduce a more versatile process. After initial screening by a council official, any complaint that cannot be dismissed as completely without merit will be referred to a review panel composed of a representative of the public and a representative of the judiciary. After reviewing the matter on the basis of written submissions only, the review panel will be empowered to impose remedies short of removal from office — for example, a requirement that the judge take a course of professional development or issue a public apology. This will enable the effective, fair and early resolution of cases of misconduct that do not require a full-scale public hearing.

Should the review panel decide that an allegation against a judge may indeed warrant removal from office, the proposed legislation requires that the matter be referred to a full public hearing. These hearings will function differently from the current inquiry committees. First, the hearing panel itself will include a lay member of the public and a representative of the legal profession in addition to judicial members. These judicial members will include both chief justices and lay puisne judges. A lawyer will be appointed to present the case against the judge, much as a public prosecutor would do. The judge will continue to have the opportunity to introduce evidence and examine witnesses, all with the aid of his or her own counsel.

In sum, the process will be structured as an adjudicative and adversarial hearing, a format that benefits the gravity of the issues involved, both for the judge and for public confidence in the integrity of justice.

At the conclusion of these public hearings, a hearing panel will determine whether or not a judge should be removed from office. It will then report its recommendation to the Minister of Justice without intermediate review by the council as a whole. This will bring a timely resolution to many of the most severe allegations of misconduct against judges, allowing the minister, and ultimately Parliament, to act swiftly in response to a hearing panel’s recommendation. Canadians can rest assured that this measure, which is intended to be exceptional, would only be taken when it is truly justified.

(1530)

Since 1867, five judges have come very close to having a motion in the House of Commons and the Senate stripping them of their duties. Therefore, it is not an often-used process.

The rigour of the hearing process will give the minister, parliamentarians and the public at large confidence in the integrity of any findings and recommendations. The hearing panel’s report will be made public, ensuring transparency and accountability.

At the conclusion of the hearing process and before the report on removal is issued to the minister, both the judge whose conduct is being examined and the lawyer responsible for presenting the case against the judge will be entitled to appeal the outcome to an appeal panel. This appeal mechanism will replace the current recourse to judicial review through the federal courts. In other words, rather than making the Canadian Judicial Council hearings subject to external review by multiple levels of court with the resulting costs and delays, the new process will include a fair, efficient and coherent appeal mechanism internal to the process itself.

This appeal panel will be made up of five judges, some chief justices and some puisne judges, will hold public hearings akin to those of a Court of Appeal and will have all the powers it needs to effectively address any shortcomings in the hearing panel’s process. Once the appellate panel has reached its decision, the only remaining recourse available to the judge and to the presenting counsel will be to seek leave to appeal to the Supreme Court of Canada. Entrusting the process oversight to the Supreme Court of Canada will reinforce public confidence and avoid lengthy judicial review proceedings through several levels of court.

These steps on appeal will be governed by strict deadlines, and any outcomes reached will form part of the report and recommendations ultimately made to the Minister of Justice.

In addition to enhancing confidence in the integrity of judicial conduct proceedings, these reforms are expected to reduce the length of proceedings by a matter of years.

[Translation]

To maintain public confidence, the disciplinary process for judges must produce results not only in a timely fashion, but at a reasonable cost. The costs should be as transparent as possible and subject to sound financial controls. The bill therefore includes robust provisions to ensure that the costs related to the process are managed prudently.

Currently, the number of disciplinary investigations applicable to judges varies from year to year, which makes it impossible to set a specific budget for costs in any given year. Managers must use cumbersome mechanisms to get the necessary ad hoc funding, which is administered by the Commissioner for Federal Judicial Affairs.

[English]

To remedy this problem, the proposed legislation would effectively divide process costs into two streams. Funding for constant and predictable costs — those associated with the day‑to-day review and investigation of complaints — will continue to be sought through the regular budget cycle and will be part of the budget devoted to the council. The Justice Department estimated that the costs will range between $300,000 and $500,000 per year.

The second stream, however, consisting of highly variable and unpredictable costs associated with cases that proceed to public hearings will be funded through a targeted statutory appropriation established in this bill. In other words, costs associated with public hearings will be paid directly from the Consolidated Revenue Fund.

These are the provisions that make the bill I introduced for the second time a money bill, and, therefore, it was ruled by the Speaker of the House of Commons that it must be introduced first in the House of Commons.

Of course, this is not an open allocation of money from the Consolidated Revenue Fund, but it should be recalled that these hearings are a constitutional requirement. A judge cannot be removed from office absent a judge-led hearing into their conduct. It is thus appropriate that a non-discretionary expense incurred in the public interest and in fulfillment of a constitutional obligation be supported by stable and effective access to the Consolidated Revenue Fund.

Parliament must nonetheless be assured that the scope of this statutory appropriation is clearly defined. It is essential to clearly spell out the type of process expenses as well as guidelines for their quantum. There must be accountability and transparency to reassure Parliament and Canadians that public funds are being prudently managed.

As a result, the provisions establishing the appropriation clearly limit the categories of expenses captured to those required to hold public hearings. Moreover, these expenses would be subject to regulations made by the Governor-in-Council. Planned regulations include limits on how much lawyers involved in the process can charge and a limit on judges who are subject to proceedings to one principal lawyer — not an army of lawyers.

The bill also requires the Commissioner for Federal Judicial Affairs to make guidelines fixing or providing for the determination of any fees, allowances and expenses that may be reimbursed and that are not specifically addressed by the regulations. These guidelines will have to be consistent with any Treasury Board directives pertaining to similar costs, and any difference must be publicly justified.

I note that the Commissioner for Federal Judicial Affairs, who will be responsible for administering these costs, is a deputy head and accounting officer and is therefore accountable before parliamentary committees.

Finally, the bill requires that a mandatory independent review be completed every five years into all costs paid through the statutory appropriation. The independent reviewer will report to the Minister of Justice, the commissioner and the chair of the council. Their report will assess the efficacy of all applicable policies establishing financial controls and will be made public.

Taken together, these measures will bring a new level of fiscal accountability to judicial conduct costs while replacing the cumbersome and ad hoc funding approach currently in place. This is a necessary complement to procedural reforms. Both procedural efficiency and accountability for the expenditure of public funds are necessary to ensure public confidence.

Finally, I will speak about consultation.

[Translation]

During the reform drafting process, the government paid close attention to public feedback that was collected through an online survey and to feedback from key representatives of the legal community, such as the Canadian Bar Association, the Federation of Law Societies of Canada, and the provinces and territories.

As I’ve already mentioned, the council and the Canadian Superior Courts Judges Association were consulted. The participation of their representatives was both necessary and appropriate, because the Constitution dictates that this process must be managed and administered by judges. By consulting the council, the government was able to get feedback from the people directly responsible for administering the judicial discipline process.

Furthermore, by consulting the Canadian Superior Courts Judges Association, the government was able to hear the representations of the judges subject to this process directly.

(1540)

In the same press release mentioned earlier, the Right Honourable Richard Wagner, Chief Justice of Canada, stated, and I quote:

Over the past few years, the Council has consistently called for new legislation to be tabled in order to improve the process by which concerns about judicial conduct are reviewed. The efforts of members of Council to develop proposals in this regard have been fruitful, and we appreciate the openness with which the Minister of Justice has engaged the Council in his consultations. . . . While the Council will take some time to carefully review the proposed amendments, we are confident that these reforms will bring about much needed efficiency and transparency to the judicial conduct review process.

Given that our goal is to design a process that enables judges themselves to fulfill an important and public mission, I hope that our deliberations will be guided by respect for their experience and wisdom.

I also note that on June 9, 2021, the Canadian Judicial Council, as I mentioned earlier, issued new ethical principles for judges, all of which constitute enormous modernization efforts.

[English]

In conclusion, more than 50 years ago, our predecessors had the foresight to draft a judicial conduct process that removed any prospect of political interference by giving the judiciary control over the investigation of its members.

Today, respect for this form of judicial leadership is firmly entrenched. It is a gesture of respect for judicial independence under the Constitution itself and a source of public confidence in the institutions of justice that exist to serve Canadians.

It falls to us today to renew this commitment by modernizing the judicial conduct process, providing its judicial custodians with a legislative framework that contains all the tools needed to protect the public trust. These include tools to enhance efficiency, bring transparency, ensure accountability, provide versatility and maintain the highest standards of procedural fairness. I wholeheartedly recommend the bill before you in this spirit, and I look forward to its passage. Thank you, meegwetch.

Hon. Senators: Agreed.

(Motion agreed to.)

The Hon. the Speaker pro tempore: Before we proceed, honourable senators, it is almost six o’clock. Pursuant to rule 3-3(1), I must leave the chair until eight o’clock, unless it is your wish, honourable senators, not to see the clock. Is it agreed not to see the clock?

Hon. Tony Dean: Honourable senators, I move the adjournment of the debate until the next sitting of the Senate and for the balance of my time.

(On motion of Senator Dean, debate adjourned.)

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Matt Pike. He is the guest of the Honourable Senator Ravalia.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Gwen Boniface: Honourable senators, I rise to speak in support of Bill S-256, the Canadian postal safety act, proposed by Senator Dalphond. This bill would allow law enforcement to demand, seize, detain or retain items sent within Canada through Canada Post. There have been cases where counterfeit items, such as passports, firearms and other weapons have been delivered using Canada Post.

While Bill S-256 opens up the search authority to all contraband items being sent by Canada Post, I want to specifically address its influence on the drug trade.

As senators are aware, the rise in fentanyl and, subsequently, fentanyl-related deaths in our country has skyrocketed. There is no part of Canada left untouched. Of course, addictions and mental health issues ravage bigger cities like Vancouver, Calgary, Toronto, Montreal and even here in Ottawa, but now rural outliers, northern areas and Indigenous communities are all feeling the brunt of the opioid use perpetuated by the rise in fentanyl. This isn’t the first time you’ve heard me speak to this issue, as I have my own bill before this chamber that attempts to decriminalize simple possession of currently illegal substances through a national strategy process. That process alone won’t cure Canada of the poison that is fentanyl, but like Bill S-256 before us now, these are steps in the right direction to save lives, and ultimately that’s what this bill is about.

Senator Dalphond has very eloquently outlined what this bill will do and the impetus for it. That was a 2015 resolution from the Canadian Association of Chiefs of Police that has, until Bill S-256, not been considered, let alone implemented. Senator Dalphond referred to Chief Mike Serr, head of the Abbotsford Police Department and Co-Chair of the Drug Advisory Committee of the CACP, in both his second reading remarks and the press release tied with the introduction of this bill. I know Chief Serr, and I have the highest respect for his dedication to the work dealing with drug issues. I reached out to him, in fact, to consult on my own bill.

As I was once the president of the Canadian Association of Chiefs of Police, I understand the in-depth and evidence-based research the association performs, especially at the committee level. Resolution 8 from the CACP’s one hundred and tenth annual conference joined the work from the Drug Advisory Committee and the Law Amendments Committee to come up with the solution before us today.

Let me detail the issues straight from resolution 8; it’s a long quote, so please bear with me:

The Canada Post Corporation Act (CPCA) is the legislative basis for the Canada Post Corporation and was passed in 1981. Subject to the Canadian Security and Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Canada Post Corporation Act currently exempts items in the course of post from search or seizure by law enforcement, pursuant to the Criminal Code, Controlled Drugs and Substances Act, Copyright Act or Trade-marks Act, and potentially others. This exclusion may perhaps be due to domestic trafficking not being seen as a priority when section 40(3) of the CPCA was last updated in 2005. This means that search and seizure authorities granted to law enforcement personnel under the Criminal Code of Canada and other criminal law authorities are overridden by the CPCA, giving law enforcement no authority to seize, detain or retain parcels or letters while they are in the course of mail and under Canada Post’s control. That said, the CPCA is augmented by the Non-mailable Matter Regulations which specify that Canada Post inspectors shall turn over any illegal material found in the course of mail to law enforcement. Recent court rulings have determined that postal inspectors cannot act as agents of the state where police convey information received to postal inspectors in order to intercept the contraband during the postal delivery process.

Senators, obviously this poses a significant challenge for law enforcement. Reliable intelligence may point to contraband being sent through Canada Post, but law enforcement would be unable to act upon this intelligence unless they’re able to actually intercept the contraband before it enters the postal system or after it is successfully delivered. There is a large gap during the course of mailing, sorting and delivery where law enforcement is exempted from intercepting contraband.

Let me remind senators of a few facts laid out by Senator Dalphond in his speech. There are 25 postal inspectors across Canada — 25 — so they are few and far between.

The maximum weight for an item of lettermail as outlined in the Letter Mail Regulations accompanying the CPCA is 500 grams. Lettermail currently cannot be opened by inspectors; they can only set aside an identified letter to remove it from the course of the system as non-mailable and call the police. Such is the dilemma.

In 2020, Canada Post handled approximately 384 million parcels and 2.5 billion letters. This is 6.5 times more letters than parcels.

Senator Dalphond also stated that 500 grams of fentanyl has a current street value of $30,000. This is a lot of money, but it’s meaningless compared to the number of lives that could be lost to those 500 grams of fentanyl. According to the Drug Enforcement Administration in the U.S., just one gram of fentanyl can result in the deaths of 300 to 500 people.

It would be easy to transport one gram of fentanyl through one letter, but I’ll let you extrapolate. Let’s consider if it’s 250 grams of fentanyl — half the allowed weight to be considered a letter. I’ll let you do the math on that.

In order for a piece of lettermail to be considered mailable, it must have the address of the addressee. A return address is optional. In many cases, the address listed will be one of a private residence. As already referenced by Senator Dalphond, Canada Post is the shipping method of choice for many drug traffickers. Someone will order illegal drugs online through the dark web, and those responding to the orders will use Canada Post as the base method to ship to the addressee. It should come as no surprise, then, that many illegal drug toxicity deaths occur in private residences; it should be no shock to us. A May 2021 report from Public Health Ontario has observed that over 70% of opioid-related deaths occurred in private residences. British Columbia has also seen a majority of drug toxicity deaths occurring in private residences, at around a 55% rate in 2022.

The ease of having illegal drugs sent straight to your home with very little chance — or, let’s be serious, no chance — of interception will only perpetuate these statistics and the wholly founded perception of drug traffickers that Canada Post is ripe for abuse.

Colleagues, those who work in the drug trade and organized crime writ large are always finding ways to be a step ahead of or work around law enforcement. These people are smart, they’re crafty, they’re creative and they don’t have to adhere to any law, and that’s how they meet their objectives. They have identified the Canada Post Corporation Act as a vessel to move illegal goods because of the very slim chance of detection. This has only been more prevalent with the ability to transport fentanyl through lettermail.

Private delivery or courier services such as FedEx, Purolator or DHL are not barred from search by police. Law enforcement currently has the lawful power to search packages and parcels being shipped through these companies with a warrant. Those shipping drugs throughout Canada are already avoiding the use of private courier companies for exactly that reason.

The key provision of the CPCA that Bill S-256 seeks to amend is section 40(3), which deals with the liability to seizure. The way the section is currently worded, nothing in the course of post is liable to demand, seizure, detention or retention, unless it’s subject to the Canada Post Corporation Act itself, the CSIS Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. As you will recall in the description of the issue provided in the Canadian Association of Chiefs of Police resolution, this means that mail in the course of post is exempted from search and seizure pursuant to the Criminal Code, the Controlled Drugs and Substances Act or other acts.

Bill S-256 amends this provision to widen the scope of liability in force of section 40(3) to include such acts as the Criminal Code and the Controlled Drug and Substances Act. It does this by creating a new definition of enforcement statute, which means an act of Parliament, the law of a province or the law of an Indigenous jurisdiction. As senators well know, the CSIS Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act are both acts of Parliament, as are the Criminal Code and the Controlled Drugs and Substances Act. The new definition would cover all of these acts and, as a result, allow for searches and seizures to apply to items in the course of post by law enforcement. Of course, this can’t be done on a whim. Peace officers would have to follow usual warrant procedures and submit an application before such a search and seizure can take place, as they would now when searching or seizing parcels being sent through a private courier service.

Senator Dalphond called this lack of law enforcement ability to seize, retain or detain contraband in the course of post a “loophole” in the law. I would certainly agree with our colleague, but perhaps I would take it even further: This is a legal chasm. This gap in the law is actively contributing to the erosion of safety and to the deaths of Canadians.

The principle of this bill is solid and, I hope, worthy of the argument. It is in this vein that I wholeheartedly agree with Bill S-256 and would recommend that it be sent to committee as soon as possible for a thorough — but perhaps expedited — study. Every missed Canada Post letter or parcel containing fentanyl or its analogues is a missed opportunity to save lives. The longer Parliament lingers on such a bill, the more lives are put in jeopardy by the menace of fentanyl.

Thank you, meegwetch.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Housakos, seconded by the Honourable Senator Wells:

That the Senate call on the Government of Canada to:

(a)denounce the illegitimacy of the Cuban regime and recognize the Cuban opposition and civil society as valid interlocutors; and

(b)call on the Cuban regime to ensure the right of the Cuban people to protest peacefully without fear of reprisal and repudiation.

Hon. Frances Lankin: I won’t go into Uber drivers; that’s a matter for the new committee we’re trying to establish.

Senator Harder, I have two questions. I’m going into the weeds a little bit. I generally support the premise. As Senator Housakos stated, it’s about fairness, copyright, content and who does the heavy lifting in terms of the gathering and creation.

First, do you know how an organization like The Canadian Press will be treated, given that it’s kind of like a cooperatively owned organization and the companies largely involved in that have their own agreements already negotiated? You just referred to that. Do you have a sense whether there is a duplication of payment there from the platforms, or whether they will not qualify as an eligible entity?

Senator Harder: Thank you.

Senator, my understanding is that the agreements that are in place are with the publishing companies that, from time to time, also include The Canadian Press in their publications, and that is how the existing arrangements provide for compensation in that indirect fashion.

I can also state that you’re correct — as I stated — that there are some large newspapers that have agreements. I suspect the sustainability of those agreements will depend upon this legislation. This legislation will ensure there’s a requirement to negotiate fairly, and that is why News Media Canada is so supportive of this bill.

Senator Gold: I will have to make inquiries and report back. Thank you.

Senator Batters: Thank you very much.

[English]

In your speech you indicated — and it came through translation, so roughly translated — that virtually all stakeholders in the legal community support this bill. Who doesn’t support it and why?

Senator Dalphond: Thank you very much for this question of precision. I said I don’t know any who oppose it, but I restrained myself from making an overreaching statement that everybody is behind it — just in case you find somebody who will oppose it. I know that you, as critic, will work hard on this bill, and if there is any weakness in it, you will show it to me. Thank you.

Senator Wells: Senator Gold, assuming that the government and Transport Canada may be the subject of this investigation, can we assume that the review or the investigation will be independent of the department and the government?

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Cordy, for raising that. The government knows that there are still barriers, biases and systemic obstacles in the way of Black Canadians and others. It’s too regular a feature of life, frankly, for too many of our citizens. These have taken root over generations, and eradicating them will take some time.

To your question, the government has launched programs to support departments in addressing barriers to recruitment and promotion at every level, including the executive level. In that regard, the government is releasing disaggregated data on equity‑seeking groups, which will help us to understand the nature of the problem and, I hope, over time, to track progress in addressing the problem. Indeed, the government has amended the Public Service Employment Act to strengthen its provisions to address potential biases and barriers in the staffing processes, and the Clerk of the Privy Council recently issued a call to action for public service leaders to fight racism within the public service. One hopes that this is at least the beginning of progress in that important area.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Kateri Coade, the Executive Director of the Mi’kmaq Confederacy of PEI and daughter of the Honourable Senator Francis.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. The Government of Canada and all Canadians are horrified at the actions of the Iranian regime that have culminated in violations of human rights and, in particular, the tragic killings of Mahsa Amini and hundreds of brave protesters.

The Government of Canada has announced new measures that go even further than the ones previously imposed. The government is banning officials of the Islamic Revolutionary Guard Corps, the IRGC, from Canada forever, creating a new sanctions bureau and continuing to increase their sanctions on Iran and expanding the ability to seize and freeze assets. Indeed, the Government of Canada has some of the toughest measures of any country in the world against the Iranian regime. Impunity for those in the regime is not an option. Canada stands with the Iranian people and is considering and will always consider further measures to ratchet up the pressure.