Hon. Michael L. MacDonald moved the adoption of the report.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Dennis Glen Patterson: May I ask a question?

Senator Dalphond: Yes, with pleasure.

Hon. Kim Pate moved second reading of Bill S-230, An Act to amend the Corrections and Conditional Release Act.

She said: Honourable senators, in 2019 the Senate sent the substance of this bill to the other place as amendments to Bill C-83. Our collective goal was to safeguard and uphold Charter and human rights and prevent torture and cruel and unusual punishment in Canadian prisons. Despite the well-founded concerns of the Senate and countless others, as well as disturbing evidence that the human rights abuses we sought to prevent would continue unabated, the government rejected the Senate’s work.

The government committed to ending segregation in federal prisons. The government has not kept that promise. People have continued to experience horrendous and irreversible physical, psychological and neurological damage from being held in conditions of segregation and isolation. What is more, those responsible for the implementation of Bill C-83 have not been transparent. We still do not know the full extent of the human, social and financial costs of Bill C-83’s failures.

Honourable senators, we have a constitutional duty to uphold the Charter rights of Canadians, particularly those of minority and marginalized groups. The rule of law and constitutionally protected human rights of all Canadians are threatened when those in federal prisons are treated with cruelty and inhumanity and subjected to unlawful conditions.

Bill C-83 was introduced in the wake of a series of court decisions that ruled the Canadian prison system’s use of segregation unconstitutional.

In particular, the Ontario Court of Appeal recognized that harmful and irreversible effects can begin within 48 hours of isolation. By seven days, brain function can be altered. Canadian courts ruled that segregation of 15 days or more violated the Charter prohibition against cruel and unusual punishment.

According to an analysis of Corrections’ own data by Dr. Anthony Doob, the former chair and current member of the Minister of Public Safety’s advisory panel on the implementation of Bill C-83, more than one out of three prisoners put into isolation have experienced the conditions of segregation and solitary confinement that the government promised to eliminate since Bill C-83 came into force.

What is worse, 1 out of 10 people are still experiencing conditions amounting to torture under international human rights standards. Of prisoners in isolation, 40% are Indigenous and 16% are African Canadian. Once isolated, racialized prisoners are more likely to be kept there longer.

Despite international prohibitions on subjecting people with disabling mental health issues to segregation, Corrections disproportionately isolates people with mental health needs, often characterizing it as “for their own safety” instead of transferring them to appropriate health care settings.

The Parliamentary Budget Office indicates that the price tag for these horrific outcomes due to the implementation of Bill C-83 is more than $2.8 million per prison, per year. Even the PBO could not obtain all the information necessary to accurately ascertain how much putting people in isolation costs taxpayers per prisoner, per day.

Corrections did share, however, that they are planning to increase the number of SIUs — structured intervention units — Bill C-83’s pseudonym for isolation. The plan in 2019 was to have SIUs in 15 of Canada’s 53 federal prisons. Corrections now wants to put an SIU in virtually every prison.

Honourable colleagues, faced with this unrelenting expansion of a system that we know has failed, we have a duty to act. When the Senate debated Bill C-83, we identified three issues at the heart of the constitutional rights violations we are witnessing today.

First, despite 15 days in segregation being recognized as torture internationally, Bill C-83 allows people to be left in conditions of isolation for upwards of 90 days.

Second, despite the new name, SIUs retain conditions of unconstitutional segregation, also known as solitary confinement. Solitary confinement is defined internationally as confinement of 22 hours per day without meaningful human contact. Even if properly implemented, Bill C-83 only guarantees two hours per day of meaningful human contact and four hours per day out of cell. This meagre contact is also subject to a whole list of exceptions.

Third, in the case of unlawful and unconstitutional segregation, the lack of any effective external oversight system means that it is left up to the prison authorities to recognize and correct their own harmful behaviour. They have routinely failed to do so.

During the consideration of Bill C-83, committee witnesses described a culture of disrespect for legal and human rights within Corrections. More than 25 years ago, former Supreme Court Justice Louise Arbour observed, “The Rule of Law is absent, although rules are everywhere.” Judges have likewise found the rules on segregation “. . . are more honoured in the breach than in the observance . . .”

The Ontario Court of Appeal took the unusual step of commenting on the legislation while it was still before Parliament. It asserted that the government had failed to “. . . adequately explain how Bill C-83 would address the constitutional infirmity . . .” associated with segregation, and that “. . . it remains unclear how Bill C-83 will remedy . . .” the constitutional breach.

The Senate amendments, and now Bill S-230, aim to address these issues. Each proposed measure is informed by the testimony before the Social Affairs Committee, bolstered by letters from 100-plus academics and experts, and supported by reports that have emerged since the implementation of Bill C-83.

The two measures introduced for judicial oversight of Corrections are based on Justice Louise Arbour’s recommendations following the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, when she concluded that there is:

. . . no alternative to the current overuse of prolonged segregation but to recommend that it be placed under the control and supervision of the courts.

Canada’s Correctional Investigator, Dr. Ivan Zinger, identified the same problem with Bill C-83, naming judicial oversight as the best hope to shift the oppressive culture at CSC and the single most important amendment the committee could make to uphold human rights.

Bill S-230 requires Corrections to obtain permission from a court to keep a person in a structured intervention unit for more than 48 hours — a time frame after which segregation can begin to cause irreparable physical, psychological and neurological harm.

It also provides that:

If illegalities, gross mismanagement or unfairness in the administration of a sentence renders the sentence harsher than that imposed by the court, a reduction of the period of imprisonment may be granted, such as to reflect the fact that the punishment administered was more punitive than the one intended.

This would allow prisoners to seek remedies and accountability if they are subject to unlawful conditions, including extended isolation and segregation.

Similar to the jurisdiction that sentencing courts have to provide credit for time served in pre-sentence custody, in recognition of the manner in which punitive conditions like isolation render a sentence unduly harsh, this remedy would provide a reviewing court with discretion to reduce a sentence or parole ineligibility.

After studying the human rights of prisoners, concerns regarding human rights abuses with respect to segregation led our Senate Human Rights Committee to likewise recommend judicial oversight.

Dr. Doob and Dr. Jane Sprott researched the effectiveness of the oversight by “independent external decision makers” — IEDMs for short — that Bill C-83 implemented instead of judicial oversight. They concluded that meaningful oversight is not occurring.

IEDMs are appointed by the minister and must rely on Corrections to provide most of the information they use to review Corrections’ decisions to place people in SIUs. It isn’t mandatory for them to visit or speak with prisoners as part of their review, and there is no clear mechanism for a prisoner with a complaint to contact them.

Along with prison law expert Dr. Adelina Iftene, Dr. Doob and Dr. Sprott questioned the lack of transparency around the information about prisoners that is provided by Corrections to IEDMs, that Corrections fails to adhere to all IEDM decisions, and that decisions do not address systemic inequities, as evidenced by the lack of timely desegregation of Black and Indigenous peoples and those with mental health issues.

Indeed, the earliest point at which a person is guaranteed to have a review of their placement in isolation is after they have already been isolated for 90 days — six times longer in isolation than what is recognized internationally as torture.

Corrections has failed to respect even this wholly inadequate timeline. Since December 2019, at least 49 people were held in SIUs for more than 120 days without Corrections referring their cases to an IEDM for review.

The conclusion of the researchers is:

It is hard to have confidence in a process that is supposed to provide “independent oversight” when that process itself, and the logic behind each decision, is not open to scrutiny.

Similarly, the minister’s SIU Implementation Advisory Panel was prevented from doing its oversight work through its initial mandate because Corrections failed to disclose the data it required to analyze the implementation of Bill C-83. Meanwhile, Corrections had the audacity to make public statements indicating that the SIUs were “closely monitored” by the panel.

When Dr. Doob was finally able to access data and issue reports, Corrections then tried to discredit the reports, first asserting that the pandemic was to blame and then that the data CSC provided was invalid because it contained errors. Dr. Doob and Dr. Sprott then produced an analysis that demonstrated that CSC’s claims were spurious.

While judicial oversight would not create a prohibition or time cap on segregation, it would ensure more robust and independent oversight by putting courts in charge of upholding Charter rights. As they have done in constitutional challenges to segregation, courts could safeguard the establishment of meaningful remedies and correctional accountability. By broadening the definition of “Structured Intervention Unit” to include any time that prisoners are being kept separate from the general population in conditions amounting to isolation, Bill S-230 responds to observations from our own senators’ visits to federal penitentiaries; that prisoners are also experiencing the conditions of isolation and segregation outside of SIUs. When this happens, not even the weak rules set out in Bill C-83 apply.

Segregation by other names has long existed — medical observation and dry cells are two well- known examples — but its use has increased since the passage of Bill C-83.

As it rolled out SIUs, Corrections developed new forms of isolation to which SIU rules do not apply, including voluntary limited association and temporary detention ranges and other forms of restricted movement regimes and isolation units.

In addition, the Office of the Correctional Investigator has reported that during the COVID-19 pandemic, entire prisons were subjected to:

. . . near total cellular isolation, fresh air exercise once every two or three days, 20 minutes of out of cell time every other day to shower or use the telephone. . . .

Corrections employed unlawful and unconstitutional practices, in some cases keeping those who were ill in segregation cells, at a time when many provincial jails were working proactively to limit such draconian measures, particularly by releasing elderly and ill prisoners and those near their release dates.

Bill S-230 would ensure that judicial oversight applies to all these spaces and practices, and that prohibitions on segregation and requirements for oversight cannot be avoided simply by calling segregation another name. This is a crucial measure because the Constitution requires that the actual conditions of confinement must comply with the Charter, no matter what name is given to the form of isolation.

Bill S-230 also incorporates measures from the Senate’s Bill C-83 amendments to prevent segregation of those with disabling mental health issues. The amendments reflect international human rights obligations to prevent segregation of this vulnerable group. Countless reports and inquests, including the Ashley Smith inquest jury, have made clear that those with disabling mental health issues belong in healthcare settings, not prisons, and most certainly not in segregation.

In response to the Senate’s amendments to Bill C-83, the government added a requirement that everyone admitted to a prison or transferred into a SIU would receive a mental health assessment from a mental health professional, such as a psychologist or a psychiatrist. Despite this legislative requirement, some prisons have no psychologists on staff. None. Worse yet, our visits have confirmed that this is too often now a tick-box exercise performed by correctional staff, including some known as “behavioural counsellors.”

Moreover, courts have documented that, contrary to the Nelson Mandela Rules and their professional obligations, psychologists employed by CSC are too often “there to sign off on . . . continued segregation rather than to help [prisoners] . . . .”

According to Drs. Doob and Sprott, more than one in four prisoners sent to SIUs are identified by Corrections itself as having a mental health flag. They are likely to spend longer times in SIUs and be sent there not because they are a risk to public safety but because the prison is failing to meet their needs. It is easier to manage them in segregation.

The actual numbers of those in SIUs with mental health issues is likely much higher. Within the prison system, behaviour symptomatic of psychiatric or mental health issues is too often characterized by guards and even medical staff within prisons as attention-seeking, defiant or criminal.

This was the case for 19-year-old Ashley Smith, who was described as dangerous and violent in spite of contrary videotaped evidence and was only recognized as having mental health issues at the inquest after her death. While Ashley’s story is now well-known, many more live similar travesties.

“M” is an Indigenous woman abandoned at birth and sexually abused as an infant and child. She first attempted suicide at 13. She has a history of substance use and has spent most of her life in prison. She remains in custody, even though no longer under sentence, as a result of behaviour for which she was found not criminally responsible due to disabling mental health issues.

In segregation, her headbanging has left “M” with permanent physical, psychological and neurological damage. Her efforts to resist being restrained by staff resulted in Corrections’ effort to declare her a “dangerous offender.” After an extensive review of the circumstances, the presiding judge refused that application.

Corrections puts prisoners in isolation to manage challenging behaviour, yet this setting is the worst place for them. It generates and exacerbates mental health issues, with horrifying and sometimes fatal results.

Bill S-230 would restore the original intent of the Senate’s proposed amendments to Bill C-83. It would allow for mental health assessments by qualified, independent mental health professionals.

Bill S-230 would also require that where a person’s mental health assessment reveals a disabling mental health issue, Corrections must transfer that person to a provincial health setting for appropriate psychiatric care. According to the Parliamentary Budget Officer, in addition to being a more safe, productive and humane response to mental health issues, such approaches would cost a fraction of the cost of isolating individuals in SIUs.

The Senate Human Rights Committee supports these measures, calling for a prohibition on the isolation of people with disabling mental health issues and their transfer to provincial healthcare settings. Bill S-230 would thus help prevent people with complex mental health needs from being abandoned to some of the most harsh conditions of confinement while redirecting them to healthcare settings.

Bill S-230 also amends sections 81 and 84 of the Corrections and Conditional Release Act, which permit transfers of Indigenous and non-Indigenous prisoners to Indigenous communities to serve the custodial and conditional release portions of their sentences respectively. These chronically underused sections seek to remedy the over-representation and over-classification of Indigenous peoples in prisons that is part of an ongoing legacy of racism and colonialism.

Bill S-230 seeks to try to remedy current systemic discrimination by encouraging the use of sections 81 and 84 not only for Indigenous governing bodies and organizations, but also by community groups serving Indigenous and other marginalized communities, including African Canadians and members of 2SLGBTQ+ communities.

Bill S-230 also requires Corrections to take active steps to seek out community groups with whom they can contract agreements for care and custody of Indigenous peoples and other marginalized prisoners.

Drs. Doob and Sprott found that Indigenous peoples and African Canadians continue to be overrepresented in SIUs. Corrections and Parole Board of Canada research also reveals that women are most likely to end up in segregation, particularly Indigenous and other racialized women who have experienced lifetimes of abuse, and those with mental health issues, yet they pose minimal risk to public safety.

Rather, those who most need community and cultural supports are too often characterized by the prison system as dangerous or difficult to manage. This label often begins, as it did for a woman named “L,” with a negative reaction to being strip searched or any other unreasonable stress.

As noted by the Senate Human Rights Committee, discriminatory labelling is exacerbated by systemic racism and sexism in risk assessment tools that use histories of abuse to justify classifying Indigenous women, in particular, as high security risks rather than providing treatment, community connection and healing.

“L” is a member of the stolen generation scooped from Indigenous communities. She was one of a few women labelled a dangerous offender in Canada. The Alberta Court of Appeal struck down the designation and indeterminate sentence after concluding that she was so designated on the basis of what she said and what she wrote, not on the basis of what she did.

It took six and a half years to overturn her designation as a dangerous offender. She spent all but six months of that time segregated. She has now been living in the community for more than 20 years, yet the hundreds of interlaced scars on her body document the self-injury and suicide attempts that her horrific experience of segregation generated.

Bill S-230 echoes both the Senate’s Bill C-83 amendments and breathes life into the Standing Senate Committee on Human Rights recommendations to increase access to sections 81 and 84 transfers as meaningful alternatives to isolating those most marginalized and in need of community support. Serving a sentence in a community is less expensive, supports integration and helps redress cycles of colonialism and discrimination by tackling the mass incarceration of Black and Indigenous peoples. To be clear, honourable senators, Bill S-230 is not everything we need to end solitary confinement — by whatever name — but the bill provides meaningful progress towards that goal. It sets conditions by which, under the careful eye of the courts, a culture of human rights may finally be encouraged within corrections.

Over four decades, I have spent countless hours kneeling on cement floors outside segregation cells, pleading through meal slots with someone’s loved one, child, sibling, parent or partner to stop smashing their heads against cement walls or floors, slashing their bodies, tying ligatures around their necks, trying to gouge out their own eyes, mutilating themselves or smearing blood and feces on their bodies, windows and walls.

I don’t know about you, but I cannot imagine what it is to crave human contact to the point where I might do things that could lead to death in order to trigger a human intervention. The sounds of torment and despair are indescribable. The memories reverberate and always haunt me. How can we adequately describe the horror of trapping a human being in a concrete cell the size of a small parking space or bathroom? From hallucinations and paranoia to crippling anxiety and dissociation, the damage caused by isolation is writ in the minds, bodies and actions of those who survive and evidenced by the subsequent inability of too many to thrive.

Bill S-230 reflects years of work by the Senate on the issues of prisoners’ human rights, and I want to acknowledge and express my appreciation for the vital role that so many of you, Senate colleagues, have played in monitoring the implementation of Bill C-83 and pushing for the legislative changes that I bring forward today.

Bill C-83 effectively shielded corrections from the already minimal safeguards and oversights that previously applied to segregation by changing its name to structured intervention units, or SIUs. Senators’ statutory right of access to prisons under section 72 of the Corrections and Conditional Release Act became one of the few remaining ways to seek to hold correctional actors accountable. Some of you will recall that minutes after Bill C-83 passed without the Senate amendments, senators, including Senator Colin Deacon and our so dearly missed Senator Forest-Niesing, proposed a plan to visit federal penitentiaries to monitor the implementation of Bill C-83 and overall conditions of confinement. To date, many of us have visited federal prisons to meet with prisoners and staff and to learn from those affected first-hand by the laws we pass. Though temporarily halted by the pandemic, when the public health situation allowed us to resume visits this fall, what we heard only underscored the urgent need to bring this legislation forward. Although her own health precluded her from joining us, Senator Forest-Niesing followed our visits, and our final phone conversations included discussions regarding the tabling of this bill — one that, but for her passing, she might herself have presented or, at the very least, co-sponsored.

In closing, I want to propose a short title for this bill, and that’s “Tona’s law.” Tona is a woman with whom members of the Standing Senate Committee on Human Rights met during our visit to a forensic psychiatric hospital in the Atlantic region. Tona spent 10 years in federal custody, all in segregation. The result: A diagnosis of isolation-induced schizophrenia. Her psychosis is directly linked to her extended periods in prison segregation cells and the post-traumatic stress associated with the tortures of that isolation. Tona implored us to take legislative action to end segregation and get women and people with mental health issues out of prisons and into appropriate mental health services. She suggested we might call it “Tona’s law.” Those who know Tona’s story will be pleased to learn that, with the support of our mental health team, she is now back in the community. But for current health restrictions, she might well have been here today to meet all of you.

Honourable senators, we did incredible work together in 2019 to bring these provisions forward. Since then, too many have experienced conditions of confinement so awful that we regularly receive prisoner requests for assistance to access medical assistance in dying. Others have tried and some have succeeded in escaping their situations by suicide. This is happening despite our Charter and the rhetoric of bureaucrats. These are real people, most of whom went to prison fully expecting to work on the issues that brought them there so that they might ultimately rejoin society. In the names of those who have had their lives taken by segregation and solitary confinement, in the names of the many more like Tona who have survived and are fighting to ensure no one else experiences these tortuous conditions, let us join together to finish what we started. I look forward to your support for the passage of Bill S-230.

[Translation]

Hon. Pierre-Hugues Boisvenu: Senator, you used the word “torture” several times. Do you have an idea of the number of complaints the Correctional Investigator has received about torture in prisons, in federal penitentiaries, and do you know how many of these complaints were founded?

[English]

Senator Pate: The use of “torture” comes from the international UN rules on the treatment of prisoners and from the special rapporteur on torture and detention. That definition is one that the courts have then used — the 15-day limit, as anything beyond that can amount to torture. Yes, there have been complaints put in through the Correctional Service of Canada. I do not have the exact number at my fingertips. I do know that the Correctional Investigator of Canada has investigated many. I do know that when Dr. Doob — who was actually the chair of the minister’s advisory committee to review these structured intervention units — couldn’t even get the data himself nor could other members of the committee, and when they did finally get data and saw just how many times — and I mentioned the number of times, I think it was 49 or more — people were held for six times the 15-day limit that was put in place, even then corrections tried to say that in fact their documentation was problematic. So part of the challenge — and I think it’s something that all of us would be interested in seeing — is how to actually hold accountable the Correctional Service of Canada to do the job it’s supposed to do. With almost one-to-one employees per prisoner, presumably we’d see a lot more of that information being made available in a more transparent and accountable way.

[Translation]

Senator Boisvenu: I visited penitentiaries in Quebec — not in the other provinces — and it is understood that when someone mentions the word “torture” over and over, they are referring to situations in third-world countries or totalitarian states. However, if we are using the word “torture” in Canada, we need to provide some scientific data to give it substance. When I talk about the number of women who are assaulted in Canada, I use data to back up my claim and to say that there was a specific number of women who were murdered or a given number of instances of attempted murder. If you are using a strong word like “torture” in the context of federal penitentiaries — we are not in Mexico here — don’t you think that you should back up these claims with real, meaningful data to give your bill some credibility and to make sure that the use of this word will not be challenged?

[English]

Senator Pate: I absolutely agree, and if you believe that any of what I have said or any of the documentation is inaccurate, I would welcome you to show me that evidence.

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

The Senate proceeded to consideration of the second report (interim) of the Committee of Selection, entitled Duration of membership on committees, presented in the Senate on December 2, 2021.

Hon. Jane Cordy: Honourable senators, I would like to repeat one of the comments that Senator Mercer made in his speech, and that is that section 12-2(3) of the Rules allows for a more independent Senate. Remember that, because that’s what we’re trying to take away with this report.

Honourable senators, if you have not done so yet, I strongly encourage you to read Senator Mercer’s dissenting opinion included in the report of the Selection Committee. This report lays out the long-standing history of committee portability as a principle of independence since the very beginning of the Senate.

Colleagues, I would like to express how disappointed I am that this issue has come up again, flying in the face of our progress in making the Senate more independent and more equitable. Many of you will know that the last time the notion of portability was brought forward, members of the Progressive Senate Group spoke against that sessional motion. I did at that time as well.

Our colleague Senator Bellemare attempted to amend it. Her amendment proposed a compromise that would have helped to reinforce the equality of all senators, regardless of their affiliation, by only requiring a senator who changes affiliation to vacate a committee chair or deputy chair position, thus maintaining the negotiated committee chair balances.

Honourable senators, the Senate is made up of individuals who have come to this place from across the country to serve Canadians. We do not serve our respective groups. We work within our groups, but we do not serve our respective groups. If anything, honourable senators, groups should serve their members and be a platform for each of us to excel, supported by other like-minded senators.

Senator Bellemare’s amendment at the time was a reasonable compromise, and I am disappointed that we find ourselves here yet again in 2021.

Colleagues, at the Selection Committee meeting last week, we heard a number of arguments against the portability of committee seats, none of which I considered persuasive. Proportionality was the justification that was brought up most often. Let me ask you a question. If a senator were to leave a group and join another, would that not mean the group left behind would be entitled to fewer committee seats than before? And wouldn’t it also mean that the group with increasing membership would be entitled to more committee seats? I would argue that portability is, at the very least, more consistent with the principle of true proportionality, even if the numbers are not as precise as a complete overhaul of all committee allocations.

Like everyone here, I believe proportionality should be taken into account when populating the committees at the beginning of a session. Ultimately, proportionality is only valid on the day the committees are populated. We all know the composition of the Senate can change at any time, just as we all know senators retire and new senators are appointed throughout each parliamentary session. Currently, there are 13 vacancies and four more senators who will reach the mandatory retirement age of 75 before we rise in June. Proportionality holds true when committees are populated, but the balance can quickly change.

The reality of how the composition of this place can change during a session was never more evident than the Forty-second Parliament, which was one continuous four-year session. No one knows what the future will bring.

Even Senator Woo has acknowledged the ever-changing nature of the Senate. In an appearance before the Special Senate Committee on Senate Modernization on April 25, 2018, Senator Woo was asked about the issue of proportionality and the membership of the Standing Senate Committee on Ethics and Conflict of Interest for Senators. He said:

All I’m trying to say here is that if we were to cement the current proportions into that committee in the rules, that would almost certainly be out of skew within a short period of time when the composition of the Senate as a whole changes.

As he said, proportionality quickly becomes out of date. But we do not routinely readjust the committee memberships to reflect those changes, nor do we change or circumvent the Senate Rules to accommodate them.

Another argument brought forward against committee seat portability has been that it is somehow contradictory to the Westminster system. However, as Senator Mercer detailed in his dissenting opinion within this report, the suggestion that committee seats belong to groups is, in fact, a break with practice in other Westminster-style legislatures.

Canada’s House of Commons protects members’ ownership of their committee seats in its Standing Orders. The House of Lords in the United Kingdom, which is the model for the Senate of Canada, and the Australian Senate also appoint committee members for at least the duration of a parliamentary session. Indeed, in the case of the House of Lords, committee seats are, in practice, effectively permanent.

Some have suggested that our old way of doing things is a product of the bicameral system when we only had two parties, the government and the opposition. I would point out that the House of Lords manages to uphold committee portability within its reality of six groups with 25 or more members. The Australian Senate has three groups of nine or more members and does the same. We all know that our own House of Commons accommodates four recognized political parties.

Another argument brought up during the Committee of Selection meeting was to whom do senators “owe their committee seats.” The answer, colleagues, is simple: The Senate. We owe our committee seats to the Senate of Canada.

Everyone who was present on Thursday voted to adopt without amendment the Committee of Selection’s first report to populate committees. Without that vote, our committees would not be currently undertaking their organizational meetings or preparing to study upcoming legislation. Whether by voice or standing vote, whether we engage in debate or not, each and every one of us, honourable senators, plays a role in determining how this place deals with every item that comes before us.

When we debated the sessional motion in the fall of 2020, I was surprised by Senator Woo’s implication that we could ignore the Senate’s role in considering and adopting the Selection Committee’s report because:

. . . the Senate as a whole played zero role in brokering the allocation of seats or in coming up with the precise configuration of committee memberships. . . .

That statement belies a fundamental misunderstanding of the way this place conducts business. Using this logic, one could also argue that the Senate as a whole doesn’t play a role in amendments to legislation made by committees or in adopting a comprehensive report that a committee presents. However, we all know that this is not our approach in the Senate. We debate all of these things. Each and every senator has the right to vote on each and every item that is called. Each and every senator from all sides in the Senate, from every seat in the Senate that’s occupied, considers their choice when making it. Each of us chooses to allow leave on motions, chooses to call the question, chooses how to vote, all of it with an understanding of the item before us, to the best of our abilities.

We are not rubber stamps. No outcome is ever guaranteed. If that were the case, we would not be debating the report from the Selection Committee here today.

To suggest for one moment that what we do here, particularly the process of voting, does not matter to the outcome should be offensive to all of us because we each take our responsibilities seriously, and because, in the end, it is the Senate that appoints senators to serve on committees, not leaders or groups. The groups are simply administrative tools, a way of managing the complexities of populating almost 20 committees with 105 senators. The two ideas, of negotiations and of the Senate’s final vote, can and should easily coexist.

And, honourable senators, they do.

Colleagues, if we are to continue on the road to modernizing the Senate, and if we adhere to the ideal that all senators are independent and equal, we should do so with a view to the future. We are trying to make this place less partisan and to make room for people outside of the government and opposition sides. Some of our current rules, like rule 12-2(3), are already in place specifically to protect the rights of individual senators. Despite the suggestion at committee and in this chamber today, just because a rule is old does not mean that it conflicts with true reform.

Indeed, if you would like to read the fourth report of the Special Committee on the Rules of the Senate, tabled in November 1968 — a long time ago — and led to the principle of committee seats being for the duration of a Parliament — yes, not a session but a Parliament — being formalized for the first time in our rules, I encourage you to do so. That report speaks at length about the independence of senators, including criticism of the appointments process at the time. It includes a suggestion that no senators outside of government and official leadership positions participate in their respective national caucuses.

Honourable senators, I have been asking myself about the motivation behind this motion. Is it really only about proportionality? I’m not convinced it is, by the arguments presented. Or is it solely about preventing senators from being more independent? I truly believe that passing this motion is an erosion of our independence as individual senators. This flies in the face of everything that many of us have been trying to achieve as we move away from the centralized power structure of the partisan political party influences of the past. This motion is a step backwards toward those old ideals of leaderships maintaining control over their members through the threat of losing committee seats if a member makes a personal decision to leave a group that is no longer the best fit for them.

This is not a principle that I can or will support. I do not believe that groups own committee seats; individual senators do.

As Senator Dalphond and I stated in a recent article in The Hill Times, “A more independent Senate should uphold the historical independence of committee members and its committees.”

Honourable senators, for these reasons, I cannot support this report. Thank you.

Senator Moncion: This rule has not been changed at all; it hasn’t been looked at. I go back to the original question about when there were only two groups in the Senate, and now we have more than two. I understand the rule is in place, but how can we maintain the way we are doing things now, considering the Senate has changed but the rules have not?

Hon. Scott Tannas: Senator Cordy, you mentioned rule 12-2(3) and the other rules above that; Senator Dalphond and Senator Mercer obviously did as well. But nobody has mentioned rule 12-5, which basically says that the leaders, on a signature, can remove any member of any committee and appoint somebody else.

So what we’re really talking about is, up until one minute before the person resigns, the leader could remove their seat. It is only in the moment after they have resigned that they can keep their seat or that the leader can’t take it back. The group can’t take it back.

That has always been there. Is that not right? That’s been there for the same amount of time as all of the other rules that you quoted and the traditions and so on. Are we really just talking about the moment that a senator decides to leave a group? In doing so, some senators, when they left their group, gave the leader notice, knowing what that meant, and then left. Others gave no notice and left their leader to read about it in a Speaker’s notice and, as a result, they were able to keep their seats.

But rule 12-5, can you tell me how this all plays in and where the tradition of that has been in your time here in the Senate with respect to discipline, with respect to other areas where a leader might, without the consent of the senator, change their position?

Hon. Terry M. Mercer: Honourable senators, I would like to begin by acknowledging that I am joining you from the ancestral and unceded territory of the Mi’kmaq people.

As a member of the Selection Committee, I rise today to offer some commentary on where we are now in the Senate as it pertains to committees. We adopted the first report of Selection which provides the list of senators nominated to serve on committees. The Senate, by adopting the report, has appointed senators to the committees.

The next step is in dispute. My comments here may be repetitive from the committee’s second report, but I feel it is important to reiterate the arguments for all here in the Senate.

Generally speaking, the practice that “senators appointed to the standing committees and the standing joint committees shall serve for the duration of the session” has existed since Confederation. This is indeed rule 12-2(3), “Term of appointment of members of committees.”

We have followed this rule up until previous sessional orders that were adopted during the first and second sessions of the Forty-third Parliament. These orders introduced the same provisions we are considering in this second report — provisions that:

. . . . preserve the number of committee seats agreed to for each recognized party or recognized parliamentary group, after members were named, even if a senator’s affiliation changed for any reason.

I, and many other senators, have said before: a senator is a senator is a senator. Once a senator has a committee seat, it is their seat. If they decide to change groups, they should be able to keep their seat. This is how our rules work, and this is what we should follow.

However, this report allows us to subvert this rule again. If it is the will of the Senate to continue to do this, why are we not studying these changes in the Rules Committee? Isn’t that the job of the Rules Committee?

The second report of Selection states that:

If a senator ceases to be a member of a particular recognized party or recognized parliamentary group for any reason, he or she simultaneously ceases to be a member of any committee of which he or she is then a member, with the resulting vacancy to be filled by the leader or facilitator of the party or group to which the senator had belonged . . .

I do not agree with these changes which is why, honourable senators, the second report contains a dissenting opinion, and I will review that in short here now.

Whether a senator changes their group affiliation, or a non-affiliated senator joins a group, the Rule ensures the independence of each senator to conduct their committee work, entrusted to them by the Senate itself.

The population of committees is based on negotiations amongst the groups and respects proportionality, but the Senate is the ultimate arbiter of committee seats.

The recent sessional orders have infringed on the independence of individual senators by setting aside rule 12-2(3). Placing the authority over committee seats directly with the leadership of parliamentary groups and political parties, as this report does, is a continuation of that misguided practice.

It continues to be my view, and that of others, that the allocation of committee seats to parliamentary groups and political parties is a step backward in Senate modernization, and removing committee portability entrenches the authority of group and party leadership. That doesn’t sound like reform or independence to me.

For some historical context on the existence of our rule, it should be noted, honourable senators, that other Westminster parliaments have similar rules and practices. The United Kingdom’s House of Lords complies with its Standing Order 63, established in 1975, which states:

The orders of appointment of the following committees, and any of their sub-committees, shall remain in force and effect, notwithstanding the prorogation of Parliament, until such time as the House or committee makes further orders of appointment in the next succeeding session.

In the Australian Senate, members of standing committees are appointed at the beginning of each Parliament. Membership may only be changed by motion which discharges the former member and appoints a new one.

In the other place, Standing Order 114(1) also ensures that members appointed to a standing committee remain members throughout the Parliament. So then why is the Senate of Canada becoming a stand-alone body that is subverting similar rules?

Some of my honourable colleagues continue to argue that this is a proportionality problem. If we do the math, as was done with the negotiations, senators are recommended to the committees based on proportionality. If a senator leaves a group and joins another, does not that group’s proportionality of the total go up? That’s the math. Therefore, the move, with the senator keeping the seat, ultimately continues to respect the principle of proportionality.

Think about that, honourable colleagues.

Lastly, the dissenting opinion concludes:

. . . if the goal is a Senate made up of more independent senators, it is contrary to that goal to remove the right of individual senators to be appointed to committees for the duration of the session, regardless of affiliation. By removing that right and placing committee seats solely in the hands of facilitators, leaders, whips and liaisons, we would be undermining individual independence and limiting the freedom of affiliation of us all.

I challenge all senators to take control of their own destiny and vote against this report. This is your chance, perhaps your only chance, to exercise your independence. Thank you, honourable senators.

Senator Cordy: You’re absolutely right. It’s interesting, because I looked at that section and I think it’s something that we should be looking at very closely and examining. I would certainly be open to exploring a need to change this rule. Sometimes what happens, Senator Tannas, is people are taken off a committee for no other reason than they’re tied up with two committees meeting at the same time, which sometimes happens in December and in June. Then the Senate is not sitting; they come back and they discover that they’re still on it.

I think we ran into that, where people were replaced, and then Parliament had been prorogued. They were called back to sit, the person who had taken the place of the original member was still on the committee, and the practice with prorogation was that you couldn’t switch. It had to be the people who sat at the last meeting while Parliament was in session.

So you’ve raised a really good point. I have my notes from when I was looking over rule 12-5, and the comment I jotted down was that I would certainly be open to exploring a change to this rule. I think the Rules Committee should be looking at it because research shows that there are ways to facilitate needed replacements and require the consent of senators.

I haven’t looked at what they do in London in the House of Lords. I haven’t looked at what they do in Australia. I was simply looking at the rule that we have, but I hope that you would be open to it. I certainly would be open to having the Rules Committee examine rule 12-5. Thank you for raising that.

[Translation]

Hon. Senators: Agreed.

(Motion agreed to and report adopted.)

On the Order:

Resuming debate on the motion of the Honourable Senator Galvez, seconded by the Honourable Senator Forest:

That the Senate of Canada recognize that:

(a)climate change is an urgent crisis that requires an immediate and ambitious response;

(b)human activity is unequivocally warming the atmosphere, ocean and land at an unprecedented pace, and is provoking weather and climate extremes in every region across the globe, including in the Arctic, which is warming at more than twice the global rate;

(c)failure to address climate change is resulting in catastrophic consequences especially for Canadian youth, Indigenous Peoples and future generations; and

(d)climate change is negatively impacting the health and safety of Canadians, and the financial stability of Canada;

That the Senate declare that Canada is in a national climate emergency which requires that Canada uphold its international commitments with respect to climate change and increase its climate action in line with the Paris Agreement’s objective of holding global warming well below two degrees Celsius and pursuing efforts to keep global warming below 1.5 degrees Celsius; and

That the Senate commit to action on mitigation and adaptation in response to the climate emergency and that it consider this urgency for action while undertaking its parliamentary business.

Senator Dalphond: If I understood what you said, you proposed we deal with these assets the same way we deal with what we call the Proceeds of Crime Act in Canada, not in a criminal proceeding but in a civil proceeding where it’s the balance of probability and not the higher level of evidence that is required, and where we confiscate, and the judiciary will give an opportunity to everybody to speak. Then the assets will be handed over to an organization that the court will decide based on whatever the Crown or the Attorney General will propose.

As a judge, I’ve been involved in cases where we had seized money. It’s often more effective than criminal actions, because we take the money; we take the property; we take the gold, the jewellery and so on, and that hurts.

I certainly support your bill. It’s a great opportunity to go after criminals who are living beyond our jurisdiction but have assets here. As you said, if it’s corruption, it’s a crime. If a crime was committed, it’s the proceeds of a crime.

If I understand well, you will propose civil proceedings similar to what we have for criminal money. I certainly support that. Thank you.

Senator McCallum: Honourable senators, I urge you to stand with me in support of this critical legislation. Thank you.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Jaffer, seconded by the Honourable Senator Forest, for the second reading of Bill S-213, An Act to amend the Criminal Code (independence of the judiciary).

The Hon. the Speaker: I dislike wearing a mask as much as everybody else when speaking because it is cumbersome. I did say to one senator in particular, who said that he had medical problems speaking, to check with the senators around that individual, and if they were uncomfortable with the mask not being worn, then we could arrange for them to be socially distanced.

If that’s the case at any time, I would just ask senators to bring it to my attention. We’ll make the appropriate accommodations.

Hon. Michèle Audette: Thank you, Senator Dalphond, for your speech and for sponsoring this bill.

Knowing that this territory has been and continues to be inhabited by the Kanien’kehá:ka, the Mohawk people, were the nation and its members consulted in this process of exchange and consultation, so as to include the richness of the Indigenous languages that are still alive?

Senator Dalphond: Thank you, Senator Audette, for that excellent question. From what I understand, even though I am neither a historian nor an expert, and forgive me if I am wrong, but of the three ridings in my division, the Salaberry—Suroît riding is the one that corresponds most closely to the Mohawk territory in relation to Châteauguay—Lacolle. While Châteauguay is in the top part, the rest of the territory is located further down, towards the Saint-Jean River.

Hon. Mobina S. B. Jaffer: Honourable senators, pursuant to rule 12-26(2) of the Rules of the Senate, I have the honour to table, in both official languages, the first report of the Standing Senate Committee on Legal and Constitutional Affairs, which deals with the expenses incurred by the committee during the Second Session of the Forty-Third Parliament.

(For text of report, see today’s Journals of the Senate, p. 117.)

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to the urgent need to all violence against women and girls. As you all know, yesterday, December 6, marked a very significant day of commemoration in the fight against female violence. Thirty two years and one day ago on December 6, 1989, 14 young women were killed by misogynistic, senseless and indefensible violence. These 14 women were attending L’École Polytechnique and working on obtaining their engineering education when a man decided to open fire in their classroom and killed them just because they were women.

Honourable senators, there are many types of violence against women. They include intimate partner violence, which includes battering, psychological abuse, marital rape and femicide; sexual violence and harassment, meaning rape, forced sexual acts, unwanted sexual advances, child sexual abuse, forced marriage, street harassment, stalking and cyberharassment; human trafficking, which can mean slavery, sexual and exploitation; child marriage; and female genital mutilation.

In 1997, the Government of Canada passed a law to amend the Criminal Code and have female genital mutilation recognized as a form of aggravated assault. Unfortunately, this legislation has never been enforced in Canada. Female genital mutilation happens in over 90 countries and on every continent. The End FGM Canada Network estimates that there are more than 100,000 survivors across Canada, and possibly thousands of girls remain at risk.

Honourable senators, December 7 falls within the United Nations’ annual 16 Days of Activism against Gender-Based Violence. Today, yesterday and every day we remember the urgent need to end violence against women in all of its sinister forms.

According to the Canadian Femicide Observatory for Justice and Accountability:

. . . 92 women and girls were killed in Canada in the first six months of 2021, up from 78 during the same period in 2020 and 60 in 2019.

Honourable senators, this is not an issue of the past. It is a present issue, and without serious action it will continue in the future. Let us work together to ensure our granddaughters are not facing the same violence our mothers faced, our sisters faced and our daughters face. Thank you, senators.

The Hon. the Speaker: I’m sorry to interrupt you, Senator Omidvar. Lately, you’ve been in conflict with the six o’clock rule. You will be given the balance of your time. My apologies.

Honourable senators, pursuant to rule 3-3(1) and the order adopted on November 25, 2021, I’m obliged to leave the chair unless there is leave that we continue.

There being no request for leave, the sitting is suspended until 7 p.m.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

(1900)

On the Order:

Resuming debate on the motion of the Honourable Senator Omidvar, seconded by the Honourable Senator Audette, for the second reading of Bill S-217, An Act respecting the repurposing of certain seized, frozen or sequestrated assets.

Hon. Paula Simons: Honourable senators, my question is for the Government Representative in the Senate.

Since 2015, Calgary’s Manmeet Singh Bhullar Foundation has been working to help Sikhs from Afghanistan escape religious persecution. To date, the foundation has gotten 650 members of Afghanistan’s small Sikh minority community to temporary refuge in Delhi, India, but most have been stranded there for years. There are currently sponsor families standing by in Calgary, Edmonton, Leduc, Kelowna, Chilliwack and other communities ready and willing to welcome these displaced people to Canada.

The Canadian government has signed a memorandum of understanding with the foundation to bring these Sikh refugees here. The foundation tells me that those who are waiting have passed security background and health checks. Yet, to date, only 74 have been admitted to Canada. While the Bhullar Foundation is grateful for all the assistance the government has provided, and hopeful that more families will arrive in Canada soon, can you please tell us why there have been so many delays in resettling this vulnerable population safely and what your government is doing to expedite their arrival now?