Hon. Senators: Agreed.

(Debate postponed until the next sitting of the Senate.)

[English]

On the Order:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Seidman, for the second reading of Bill S-234, An Act to amend the Canadian Environmental Protection Act, 1999 (final disposal of plastic waste).

(On motion of Senator Duncan, for Senator Petitclerc, debate adjourned.)

On the Order:

Resuming debate on the inquiry of the Honourable Senator Coyle, calling the attention of the Senate to the importance of finding solutions to transition Canada’s society, economy and resource use in pursuit of a fair, prosperous, sustainable and peaceful net-zero emissions future for our country and the planet.

(On motion of Senator Duncan, debate adjourned.)

(Pursuant to the order adopted by the Senate on December 7, 2021, to receive a Minister of the Crown, the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada, appeared before honourable senators during Question Period.)

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator, for that question, even though I disagree with the way in which it characterizes the issue. It will always be the case that serious crimes will attract serious penalties and that public security is our number one concern.

What we are doing, honourable senator, is making sure that where there is no threat to public security — and a conditional sentence order is only available when there is no threat to public security and the sentence that would be given would be less than two years. These are cases where incarceration is not the best way forward.

I would point you to recent comments by Justice Michael Moldaver — one of the leading law thinkers in Canada and a recently retired justice on the Supreme Court of Canada — who said that our criminal justice system needs to concentrate its resources on serious crime and should not be turning to incarceration where it is not the best way forward, either for the victim or for society at large.

Again, while you cite serious crimes, where those crimes are serious — and where the situation and circumstances were serious — those will always attract serious penalties. What we are doing here is allowing flexibility for a problem, such as a problematic addiction or another social challenge, to be addressed directly as opposed to using incarceration as a means to address that type of social problem.

To repeat, serious crimes will always carry serious sentences and conditional sentence orders are only available where there is no threat to public security.

Hon. Michèle Audette: Minister, as you know, the Standing Senate Committee on Aboriginal Peoples released its report entitled Not Enough: All Words and No Action on MMIWG back in June.

I would like to share what several witnesses said during the study. The report states, and I quote:

Several witnesses emphasized the importance of Call for Justice 1.7, the establishment of an independent National Indigenous and Human Rights Ombudsperson, by all governments, in partnership with Indigenous peoples . . . .

This also applies to the Government of Canada.

The committee was also pleased to learn that the Government of Canada has begun to reflect on what this position might look like.

My question is simple, minister. Where do we stand today?

Senator Plett: Characterizing what I asked. Sexual assault, minister, is a serious crime — a very serious crime, minister. If this bill passes, sexual abusers will be serving their sentence in their communities. Yet, as Jennifer Dunn stated, you have women on the other side of this who have to live with what happened to them and have to look over their shoulder in the community. That, minister, is a lifetime sentence. That is serious, minister.

What message is your government sending victims of sexual assault by treating sexual abuse with leniency? Given that sexual assault is the most under-reported crime in Canada, what do you say to the advocacy groups who say that this will further deter abuse victims from coming forward?

Conditional sentence orders, in any case — but particularly in the very serious situation that you have cited — are only available where there is no threat to public security. That includes victims, honourable senator. We are moving forward in a way that corrects the failed, so-called tough-on-crime policies of the Harper government, which have only resulted in clogging up the criminal justice system, in the overincarceration of Indigenous, Black and other racialized people in the Canadian justice system and which even an esteemed judge and expert like Michael Moldaver said have basically failed.

[Translation]

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator. That is another very important question that concerns not just the report on MMIWG but also the United Nations declaration and the process for establishing an action plan. That is what I am in the process of doing with the various kinds of Indigenous leadership across nations and with national and provincial organizations. Part of this reflection is precisely about an ombudsman or perhaps a tribunal or some other form of review, if you will, to determine the scope of the rights protected by the declaration or other documents. I can tell you that this analysis is well under way, thanks to the major role played by Indigenous leadership, and I can tell you which leaders have a stake in this.

Discussions are being held as part of our consultation processes with respect to the declaration. This should address not only the requirements of the declaration but also what the report called on us to do.

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Not at all, senator. Obviously, the inquiry and the parliamentary review committee are part of the Emergencies Act process. They are required under the act itself. Clearly, we want to provide both with enough information to ensure that they can make their decisions and be in a position to review the decision made by cabinet.

Thanks to Justice Rouleau’s commission, other measures will be put in place to protect sensitive documents. The government was therefore comfortable with the decision to partially waive cabinet confidence privilege.

In both cases, solicitor-client privilege was not asserted because it’s a situation where a government can’t be bound at a future time, and that’s a quasi-constitutional right declared fundamental by the Supreme Court.

[English]

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator, for the question. It is an important question. It is a challenge that we have faced since Afghanistan fell to the Taliban, and — I repeat — it is a matter that we are seized with. It is a complex matter and we are searching for solutions.

Obviously, I can’t get in front of the process as it’s moving forward given the way our Parliament works, but I can assure you that we are taking the matter very seriously, and that we are examining all options. I can’t say more than that.

[Translation]

Hon. Denise Batters: Minister Lametti, recently, federal judicial vacancies have ballooned to an all-time high on your watch. On September 1, there were a record 91 judicial vacancies. As of October 1, there are still 89.

The Supreme Court of Canada’s R. v. Jordan decision means that people charged with serious crimes can go free because of excessive court delays. As the Minister of Justice, you have the sole and complete control over one simple solution to that problem: Appoint more judges and appoint them now.

When I asked you about this in 2021, you blamed the election. Well, we didn’t have one of those last summer. Before that, you blamed empty judicial advisory committees, but guess what? You’re responsible for appointing those too. Victims wait months and years for justice while courtrooms sit empty.

Your government has been in power for seven years, and your excuses have worn thin. After almost four years as Minister of Justice, why are you still failing to fulfill the most basic mandate of your job?

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you for the question, senator. It is true — and frankly, it’s the only thing that is true in your question — that there are 89 judicial vacancies.

What’s important to note is that since 2017, we have created, as a government, 116 new judicial positions across Canada, including — and this is included in this number — 27 in the last budget. In fact, we’re appointing judges at a faster pace, and there will be more appointments forthcoming soon.

I can say that with the additional positions that we have created, the provinces and provincial courts are happy that we have done this. They are extremely pleased with both the quality and the diversity of the appointments that we have made, and we will continue to do so. We have appointed, as a government, over 550 judges since we took office, and I proceed at a pace of over 100 a year. That pace will continue, and with the new positions we have created, we will continue to meet the needs of the Canadian judiciary.

[Translation]

Hon. René Cormier: Good afternoon, minister. On the occasion of the 2022 International AIDS Conference held in Montreal in July, you announced that the government would launch consultations in October on the criminal justice response to the non-disclosure of HIV. Over the past five years, two extensive national consultations have been held on this topic. The most recent statement of principle to come out of these consultations, which was signed by 90 organizations, is patently clear on what needs to be done.

Minister, don’t you already have the information you need to make this criminal justice reform with respect to HIV non‑disclosure? What is the timeline for this consultation and when does your government plan to introduce a bill on this?

Hon. Brent Cotter: Good afternoon, Minister Lametti, and welcome back. We have a whole-of-government commitment to reconciliation with Indigenous peoples, centred around the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and the Truth and Reconciliation Commission’s Calls to Action, but we do not have an obvious whole-of-government strategy to achieve its goals.

I have some acquaintance with such an approach in one of my former lives, specifically a multi-year strategy with commitments, targets, achievements and reporting required from all of the key government departments aimed at First Nations citizens, for example. In your department, for example, strategies and actions could relate to specific levels of reduced offending, lower incarceration rates, lower recidivism, maybe 5% a year. They could also relate to health measures, education, economic opportunities and jobs. I could go on.

Can I ask whether you and our government are committed to this sort of accountable, all-of-government approach?

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: It’s a fantastic question. Thank you. I believe we are doing that in the manner in which you are suggesting. Perhaps not explicitly in one document, although I would point you to every single mandate letter from every single minister, which puts reconciliation as a goal that every single minister and every single department has. It forces us to work together. It forces us to work with Indigenous leadership across Canada at a variety of levels, not just the national organizations but First Nations and regional organizations, modern treaties, pre-Confederation treaties, et cetera. We are doing it, and we are accountable in terms of ministers being accountable through their mandate letters, which are made public.

I agree that we do need to coordinate. We’re trying to break down barriers. I work closely with Ministers Miller, Hajdu, Vandal and Mendicino on all of these matters, and I work closely with Indigenous leadership. Certainly, more coordination and more of a sense that there is a common purpose are always desirable.

Hon. Brian Francis: CBC News reported that few federal public servants are taking part in the Indigenous-related training offered through the Canada School of Public Service, or CSPS. In 2021 only 16% took part in the training with the highest attendance, and the RCMP had some of the lowest number of participants. Following September 30, we cannot forget that the federal public service helped design, implement and maintain the residential schools and other harmful initiatives. Given your government’s stated commitment to reconciliation, I find it disappointing and concerning that the development of competencies for improved sensitivity and responsiveness to Indigenous peoples is not already a requirement.

Will you commit to supporting a government-wide directive to make ongoing training related to Indigenous peoples mandatory for all federal public servants as soon as possible?

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: You are fortunate to be able to ask a second question. That is the responsibility of my colleague, Mr. Mendicino, Minister of Public Safety. I know that he is working with his Quebec counterpart, Minister Guilbault. We have invested heavily on that file and we are working very closely with Quebec, whether on border issues, strengthening the capacity of police forces with anti-gang programs or other matters.

So there is both cooperation and investment in this file, with most of the investment coming from the federal and Quebec governments. Often we do not take credit in Quebec’s public space for the federal government’s investments, but we are making those investments and we do clearly see the problem. As I was telling Senator Housakos, I am from Montreal. I am a Montrealer, and I am aware of the challenge. We will continue to work with Quebec to protect our citizens.

[English]

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator. Sometimes appearances don’t reflect the reality of the situation. Filling that position was a priority. For reasons of privacy, sometimes things happen that get in the way. That office remained open throughout the whole time. The office was being run by an acting director. We now have an ombudsperson for that role, and the person we have selected is very good. But I can say with complete honesty that we did our best to fill that position from day one. Now it’s filled, and we’ll continue to move forward.

I would also point out that no government has invested as much in victims — and supporting victims — as we have. No government has invested as much political capital in supporting victims, in changing laws, in better training judges, in supporting organizations that support victims and in doing something like Bill C-5. Bill C-5 will help victims because it will declog the criminal justice system from cases that have caused rulings to be thrown out because of the Jordan case.

Over a third of the Charter challenges in our criminal justice system are challenging mandatory minimum penalties — many of which are the ones we have cited in this act that are clogging up the criminal justice system. So who will be primarily helped by making the criminal justice system more effective and efficient? Victims.

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator. I share that concern. It’s an important question. I have worked very hard as the Minister of Justice to get more resources for legal aid funding across Canada and to be able to implement more permanent funding as we move forward. It’s a constant battle, but I’m fighting it. I’m also working with my provincial counterparts — because the administration of justice is a provincial jurisdiction — to create a funding allocation mechanism that is not only fairer but also more permanent.

By working with my colleagues, I do hope to get the funding to that point, as well as have a more stable funding path moving forward. Again, usually the federal contribution, at a base, covers criminal law matters, as well as immigration and refugee matters, with the provinces usually funding civil law matters to the extent they wish. Again, we are working at it. I can assure you that work is being undertaken at both the ministerial and the officials level, and hopefully we’ll get to a better place soon.

Hon. Marty Klyne: Minister Lametti, with Bill C-5, the government is moving away from mandatory minimum penalties for some crimes, as a reflection of those mandatory minimum penalties disproportionately affecting Indigenous and racialized populations. This is part of the federal government’s efforts to address systemic racism in the criminal justice system.

However, as we know, this bill was not conceived to address the economic and social factors that create the conditions that lead to overrepresentation of those groups in the system in the first place. Can you tell us what will be done by the federal government — and within your department specifically — to address those root causes?

Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senator. That is a very important question.

First of all, the offences targeted are offences for which Indigenous peoples, racialized individuals and members of the Black community are overrepresented. Whenever possible, we have chosen offences that disproportionately affect those communities. Those are the offences being targeted here.

At the same time, we want to build trust in the system. After more than 10 years of tough-on-crime rhetoric from the Harper government and its strategy that was a complete failure, a certain segment of the population still needs to be convinced. By passing this legislation, we will build trust, because the sky is not going to fall, and Indigenous people and members of the Black community will be less disproportionately affected in our justice system. This will help resolve the situation in the justice system, to some extent.

That’s where we are right now.

Third, if we want to tackle the root causes of systemic racism, why should we give judges who look like you or me additional discretion? It would be better not to give —