Hon. Andrew Cardozo: My question is to Senator Gold.

I’m looking at proposed subsection (2.1) of Bill C-11:

Exclusion — carrying on broadcasting undertaking

(2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users . . . does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.

So it seems to me that user-generated folks are excluded. The next proposed subsection, (2.2), is titled “Exclusion — social media service and programming control,” and it is followed by subsection (2.3), which is another exclusion.

It seems to me there are several exclusions which are quite explicit. I’m not seeing the need for yet another exclusion to be guaranteed when it seems to me to be quite clear there. I find your explanations satisfactory in terms of those issues being quite clearly stated in those proposed sections of the act.

My question is more direct in terms of the process. As I see it, we’re dealing with three types of instruments. The first is legislation, which is passed by Parliament. We’re seeing how long it takes to pass legislation. Apart from the 31 years, it has now taken 2 or 3 years to do it. Then you have the next level as a directive from the cabinet and Governor-in-Council to the CRTC. On the third level, you have regulations that the CRTC can make, following extensive consultation.

I was a commissioner there, and, by the way, while people cite former commissioners who are against this, here is a commissioner who is in favour of this bill. There are others; we’re not that rare. I have been party to part of the process of how regulations are made. I have to tell you they are mind-numbingly extensive and detailed.

While we are spending a bit of time here dealing with this, the commission’s role, like most other commissions, is to deal with these sorts of things full time. They put questions out, they get answers back; they put out a draft, they get answers back and then they make regulations. The process is extensive.

The wisdom of having this process is that it takes 31-plus-3 years to make changes to the law, whereas a cabinet directive can be done at the drop of a hat. Changes to regulation take several weeks and maybe months, but not years. To me, that’s the wisdom of having this process where you describe the framework in the act, and you leave directives and regulations to deal with the details. Those details have to —

Senator Gold: Thank you for the question. I’m going to be brief because I know others may want to ask questions. As long as my legs hold up, I will be happy to take questions.

That is precisely right, Senator Cardozo. First of all, this is not a framework agreement; let’s be clear. The Broadcasting Act is very detailed. Bill C-11 is a very technical, detailed act. So we are talking about an act that sets out very clear criteria. As you pointed out very helpfully and in greater detail than I did, the act is clear that it doesn’t apply to digital creators but only to the platforms. The legislation is clear. It sets out clear criteria and principles to guide the CRTC.

Yes, you are 100% right, as I’ve tried to explain. The level of policy directive development, the process around that and, of course, the process of regulation allows stakeholders — and that includes YouTubers and all the folks who will continue to have questions, indeed, or concerns or both — to have input and to be heard. This is the proper way to modernize a long-overdue and long-out-of-date Broadcasting Act. So, yes, I think this is the right way.

I did want to remind colleagues that this is not just a framework where we tell the CRTC to do what they want. It’s very clear about what it’s supposed to do. Anyone who has been involved in the regulatory process knows you need a certain amount of flexibility within the regime in order to do the work. There are 30,000 pieces of YouTube content uploaded if not every minute, every day. It’s mind-boggling. Triage will have to be done at the regulatory process. Guidance is being provided in law and further guidance in policy directives and, whether mind-numbing or otherwise, further detailed guidance in the regulations.

Senator Gold: Senator Batters, I guess what divides some of us is whether we believe that when a minister makes a commitment, when the Government Representative in this place makes a commitment, it is to be taken seriously and at face value.

My team and I — and I think many senators in this place — have been engaged in a serious effort to make sure that there is time here in the Senate for this bill to be studied properly and for the Senate to be able to do its work. The Government Representative Office has been respectful of the Senate every step of the way.

Timelines that were agreed to were changed when the leadership in your party changed. Timelines were not simply extended to give pleasure to Mr. Poilievre, but to give opportunities for the Senate and senators to weigh in, and we did good work.

The fact that this one clause, in a very complicated bill, is the subject of disagreement between the Senate and the majority of members of the House of Commons is, if I can reprise my comments in my speech, to focus on a tree and not the forest.

I’m going to refrain for the moment, colleagues, from reminding us that not everyone in this chamber necessarily approaches the improvement of this bill with the same end goal in sight, but the majority of senators in this place, I am convinced, are proud of the work that we have done and want to see this bill given Royal Assent, notwithstanding disagreement on this and the five other amendments that were not accepted by this government.

Senator Gold: The government has not been negligent. The government has been responsible in trying to get this bill over the finish line for the last three years. The government does not have a Spartan warrior who is praised for delaying it for a year and will delay it for another year if your leader’s hope is realized.

The fact is this government is not being negligent. The proper legislative process is for a bill to be passed, policy directives and regulation. And again I say, Senator Housakos, with the greatest of respect, we’re at the message stage of the bill. The Rules of the Senate require that we stay focused not on part of the process generally but on the actual message that’s before us.

I’m not rising on any procedural point, but simply to remind senators that at this stage of our process, we have a particular responsibility to this process. It is not to reopen the whole bill and all the things that you don’t like about the bill and all the reasons why you and your party would like to kill the bill.

Senator Housakos: With all due respect, government leader, this is a very important legislative process. We have an obligation to debate all aspects of the bill, even elements of the bill, government leader, that you don’t like to talk about.

I think you have an obligation in this chamber to answer all questions that directly and indirectly apply to this particular bill and the Broadcasting Act. These were all elements that were dealt with, not just amendments that were refused or rejected.

Furthermore, we have a capable Speaker in the chair, and I think it’s incumbent on that Speaker to do her job, and you can focus on doing yours.

I have one other question, government leader, since I haven’t had any answers to the questions thus far. The bill makes it clear. There are a number of sections that talk about amplifying minority groups in this country and diversity groups. That’s clear in the bill. It’s within the scope of the bill. That includes Indigenous Canadians.

Can you explain to me how we’re passing a bill, a broadcasting act, that’s so preoccupied with — and this government has their heart set on — supporting diversity, supporting Indigenous voices, yet when it comes to this year’s budget, you cut millions of dollars from the Indigenous Screen Office that would be going to Indigenous communities in order to amplify Indigenous voices?

Here is another example where you pass a law for posterity’s sake, yet in practical terms, in this current budget that you passed recently, you actually cut funding to the Indigenous Screen Office.

Senator Gold: Again with respect, Senator Housakos, there is a long-standing practice and rule about message stage, so I am not avoiding answering questions that I “don’t want to answer,” but they are not questions that are raised in the message and that are the proper subject of debate.

Similarly, Bill C-11, even before we amended it, had recognized the presence of Indigenous artists, creators and broadcasting entities and companies. It was strengthened by Senator Clement’s amendments, and the bill has been improved as a result.

Your question about funding for a particular organization clearly belies and ignores the fact that this government has done more to advance reconciliation, though there is an enormous amount of work still to be done. Again, it is only out of respect for the importance of the issue you raised and not the pertinence of the question that I offer that observation.

Senator Gold: Thank you for your question. With respect to our constitutional role, no one is denying what the Constitution Act, 1867 says. But in my speech — and I’m sure you were listening — the Supreme Court made it clear that because of the understanding from 1867 onward of our complementary role, it was not necessary to specify the circumstances under which senators would exercise restraint as a matter of principle, a self‑imposed principle of restraint, because it came with the understanding, which all of us share and should share, of what our role here in this chamber is vis-à-vis the role of other institutions in our government, including the elected officials.

It is a question of what the appropriate and responsible thing for the Senate to do is. This is not a case where, in my humble opinion, the message is about the disagreement with 6 of the 26 amendments — and again, colleagues, the motion focuses on and our practice in the Senate focuses at the message stage on talking only about the message. There are Speaker’s rulings on these points.

Again, I am not invoking procedural arguments to stifle this discussion. I’m just trying to appeal to your experience as a legislator and to those of us with perhaps less experience to remind us what this debate is about and what it’s not about.

Senator Gold: Again, Senator Wallin, it is not the intention of the government — or of this bill — to regulate user-generated content. It is in response to the concerns expressed, as the government has tried, and continues to try, to clarify — obviously, with not complete success in this chamber, anyway — that the bill does not, and will not, apply to user-generated content. Both the text of the bill and the government’s commitments make that clear.

It is also clear — again, colleagues, you don’t need me to tell you this — that the Canadian Charter of Rights and Freedoms applies to every bill. The CRTC is required to take the Charter into account. Freedom of expression is guaranteed in the bill itself, although that is not necessary given the overarching presence of the Charter, and amendments promoting journalistic freedom further emphasize that.

It is not the case, Senator Wallin, with all respect, that the government intends — or wants — to regulate user-generated content. It is trying to provide guidance to the CRTC on how to adapt this bill to the rapidly changing technological environment and, at the same time, provide reassurances to those in our communities who have expressed concerns. As I said, those concerns will be addressed in the policy directive upon Royal Assent.

Hon. Scott Tannas: This is more out of curiosity, I suppose, although it may have some utility, leader, but I wanted to ask, first of all, about the statement regarding taking note of the government’s stated intent: I think it is very creative, and makes many of us more comfortable in terms of saying goodbye to Senator Simons’s and Senator Miville-Dechêne’s excellent amendment — which I spoke in favour of, and which allowed me a reason to send it to the House of Commons.

Could you elaborate on the provenance of that passage? Did you develop it? If we wanted to amend it, would it be a government position that would have to involve the House of Commons? Is this a passage that we’re putting in here in the Senate, or was a compromise arranged with the other house that, if we edited it, it might cause a problem?

Hon. Paula Simons: Let us start with the good news.

The government has, indeed, accepted most of this chamber’s amendments to Bill C-11, amendments from all four Senate groups.

The government has accepted, for example, a small but crucial amendment proposed by Senator Denise Batters which clarifies and expands the legal meaning of the word “decision” in the act.

It has accepted an amendment from Senator Miville-Dechêne which underlines the right to privacy following recommendations from Canada’s Privacy Commissioner. This is a real victory and a pleasant surprise since the government opposed this amendment in committee.

The government has accepted a whole series of amendments proposed by Senator Bernadette Clement which stressed the importance of Black and Indigenous representation in Canada’s broadcast ecosystem.

They have accepted an important amendment by Senator Pamela Wallin, adding critical language that ensures freedom of expression and journalistic independence, and equally important language from Senator Donna Dasko which insists that our broadcast system promote innovation, be adaptable to technological change and responsive to audience choice.

Senator René Cormier’s contributions include amendments to support French Canadian broadcasting and to underline the importance of independent producers.

Senator Cormier and Senator Jim Quinn have proposed successful amendments to make the Canadian Radio-television and Telecommunications Commission, or CRTC, more transparent and accountable in the administration of this new regulatory framework.

I am pleased to see two amendments that I championed in partnership with my friend Senator Dasko included in the revised legislation. The first relieves community broadcasters of responsibility for combatting disinformation; the second, far more substantive, was an amendment to remove in its entirety section 7(7) of the act, which would have given extraordinary new powers to the Governor-in-Council to micromanage all kinds of CRTC decisions.

Several expert witnesses testified before our committee about their concerns that this section would give new, unprecedented powers for cabinet to intervene in the rulings of the independent broadcast regulator. I am delighted that the government and the other place accept this amendment which depoliticizes regulatory decision making.

Let me take this opportunity, too, to thank not just the witnesses but former senator Howard Wetston for his wise counsel as Senator Dasko and I worked on this vital section of the bill. Senator Wetston’s deep knowledge of regulatory law was incredibly helpful as we wrestled with ways to fix this particular issue.

That’s the good news. I don’t want to minimize its importance. Bill C-11 came to us a flawed bill, and by working together, the Standing Senate Committee on Transport and Communications created a better bill. It is a credit to our more independent, less partisan Senate that we have been able to deal with some of Bill C-11’s most glaring omissions and errors.

However, the other place failed to accept the one amendment that may have been the most critical of all: the amendment proffered by Senator Miville-Dechêne, with my support, which would have clearly scoped out user-generated content from the bill.

One of the challenges of this legislation was to find a compromise that would include corporate content across all major streaming platforms, including YouTube and TikTok, while at the same time not capturing individual artists, creators, journalists and social and political commentators who use these platforms to upload their content.

We needed to find a way to ensure that commercially released Canadian music on YouTube, TikTok and other platforms was captured by Bill C-11 without sweeping up independent, individual creators who use the platforms to reach audiences, build their brands and earn their livings. We needed to find a way to protect the rights of commercial recording artists and, at the same time, protect the rights of cutting-edge digital entertainment innovators.

Senator Miville-Dechêne and I thought we had found that compromise. We didn’t do it alone. We were supported by our excellent staff who helped to craft and shape the language of the amendment after months and months of consultation with independent creators, artistic lobby groups and the platforms themselves.

The legislation sent back to us today gives the CRTC the power to override the section of the bill which exempts user-generated content based, in part, on whether that content generates revenues directly or even indirectly, which could, in theory, capture a tremendous amount of user-generated content.

Our rejected amendment to section 4.2(2) would have eliminated all mention of revenues, be they direct or indirect. Instead, its metric would have been whether a piece of content had been broadcast on a conventional commercial service or whether it had an international, unique identifier number assigned to it as a professional commercial recording.

I want to be very clear about this because there seems to be some confusion. Our amendment specifically made allowance for things like the rebroadcast of sports games or the rebroadcast of an entertainment show like a singing competition.

Our amendment would have meant that if a broadcaster such as Rogers or CBC reposted a baseball game or a news documentary on YouTube or Facebook, that would have absolutely been captured by the legislation, as would have any other parallel use of a social media platform to mirror that which was already on a conventional broadcast service.

It is absolutely incorrect to suggest that our amendment only dealt with music. That is not true. But our suggested language would also have ensured that if a major record label such as Sony released a new single or album on YouTube, that posting would have been treated as would have been the release of that same song on Spotify, Amazon Music or TIDAL.

At the same time, digital creators, including financially successful ones, would have been clearly exempted from Bill C-11, even if they uploaded their comedy, music, animation, film or TV episodes to a social media platform.

In committee, our common sense compromise amendment was accepted by a significant majority of members, and endorsed by the majority of senators in this chamber. It was embraced and celebrated by digital creators across the country, by producers, academics, media critics and analysts. It received broad and enthusiastic public support.

Unfortunately, the government has not seen fit to accept it, despite its efforts to strike a reasonable balance.

Here’s the official language for the official reason:

. . . this would affect the Governor in Council’s ability to publicly consult on, and issue, a policy direction to the CRTC to appropriately scope the regulation of social media services with respect to their distribution of commercial programs, as well as prevent the broadcasting system from adapting to technological changes over time . . .

What exactly does that mean? If, like me, you have a bit of a thing about split infinitives, that was especially painful to read and hear. But grammatical pedantry aside, let me attempt to translate. The government is saying — I think — that our amendment would limit cabinet’s power to tell the CRTC how to regulate social media services.

The first part of the sentence is a bit strange. Nothing in our amendment would have prevented the government from holding public consultations at any time on any subject. The last clause is also a bit odd. Nothing in our amendment would have prevented the broadcasting system from adapting to technological change.

It’s the middle of the sentence that matters. It’s the meat of the sandwich — the part about scoping the regulation of commercial programs on social media. And this is precisely the problem. The minister and the government keep telling us — and everyone else — that they do not intend to include user-generated content and that Canadians who post their comedy sketches or animated shorts or children’s songs to Twitter, YouTube, TikTok and Instagram would not be scoped into the ambit of the CRTC. Yet, the government’s own written response to our amendment demonstrates that they wish to retain the power to direct the CRTC to do precisely that — to regulate the distribution of content on social media.

The government has accused us of creating a loophole. In fact, it’s exactly the other way around. It is subsection 4.2(2) that creates the loophole. The government can’t have its cake and eat it too. It can’t pledge to keep user-generated social media out while simultaneously leaving open the possibility — dare I say the threat — of shoehorning it in.

Senator Gold said to us today that using a social media service does not make you a broadcaster. That is absolutely true. Would that the bill said so.

So now we are left with a constitutional quandary. Do we send the bill back and insist, with all due parliamentary politeness, that the government reconsider our amendment? We have pinged; now should we “pong?” Or do we say to the government something like, “Well, on your head be it. We in the Senate identified a real and serious failing of this bill. We suggested a practical, non-partisan compromise that achieved broad consensus in the Senate. You didn’t listen. Now you, as the elected representatives accountable to the voters, will have to deal with the consequences of that?”

When a bill or a part of a bill is clearly unconstitutional, then our way is clear. It is our job in the Senate to protect the Charter of Rights and Freedoms, including freedom of expression. However, while I think subsection 4.2(2) does impinge on free speech and free expression, it doesn’t explicitly infringe on free expression. Despite the ongoing social media panic, rage farming and thought scams, this is not a censorship act, it’s not a plot by the World Economic Forum, it’s not a communist plot, it’s not a Nazi plot and it’s not an Orwellian plot. It’s just, well, a flawed bill.

However, this is the bill the government ran on. In terms of the Salisbury convention, it was very much part of their last election platform. You could argue they received a mandate for this policy, though this was hardly a ballot question.

So while I might be tempted to ask you, my fellow senators, to send this bill back with an insistence that the government reconsider our amendment, I frankly don’t detect any appetite in the other place to budge on this point. More’s the pity. As well, I don’t think “ponging” this amendment up the street will make a blind bit of difference.

I’m proud of the work we did on this bill, and I think it is a much better piece of legislation because of that work. In the end, I do not feel I can lend my voice to its passage, but today, I want to thank all the independent digital creators — the animators, filmmakers, musicians, comedians, journalists and commentators — who spoke out so thoughtfully against this particular aspect of the legislation. You give so much to our country and our culture. I will continue to push for your rights and your independence to be respected in government regulation and by the CRTC. We need your visions and your voices in our media milieu. Thank you for what you give to Canada and to the world. Thank you for being ambassadors for all things Canadian and for all the multiplicity of ways to be Canadians. You are in the vanguard, and I hope that, in time, the rest of us will catch up.

Thank you. Hiy hiy.

Hon. Donna Dasko: Honourable senators, I’m pleased to stand today to speak to the message received on Bill C-11, the online streaming act, from the House of Commons. I will be very brief today.

Colleagues, it’s a rare moment when a government bill comes back to us as a message, and it’s also rare for any bill to receive as much review, scrutiny, analysis and change as Bill C-11 has.

The process in this chamber, and in our Standing Senate Committee on Transport and Communications in particular, in examining this bill has been as thorough as anyone could hope for. The committee held 31 meetings, heard from 138 witnesses and received 67 briefs on Bill C-11. Virtually everyone in this country with any stake or interest in this bill was invited to committee as a witness.

Nine committee meetings were held to conduct clause-by-clause consideration, and this is a record number of such meetings. A total of 73 amendments were presented at committee, and 26 were adopted, covering a very wide range of topics.

Clearly, colleagues, in my view, we have completed our work, and, without question, we have been thorough and diligent. I am very proud to have been part of this process, and I thank all of my colleagues for their contributions. I thank all of the witnesses, as well, who came before us.

Now, let me turn very briefly to the government’s choices with respect to Senate amendments. As we know, the House of Commons, upon recommendation of the minister, has voted on a motion to accept 18 of the 26 amendments and to slightly modify two others. These amendments were accepted by a majority of members in the other place by a vote of 202 to 117.

The 18 plus 2 amendments accepted in the other place are substantial and significant. I am confident that all of our amendments received fair consideration. I supported the amendment on user-generated content that my colleagues put forward. I thought it was a reasonable and good compromise and a very reasonable way to deal with the topic and activity of user-generated content. Therefore, I was disappointed when this amendment was not accepted by the government.

After we received that notice on March 7, 2023, I discussed with officials the reasons that this amendment was not accepted, and I have to say that I am satisfied that the government’s choices were based on valid considerations. I note that the motion before us today reiterates that the intention of the bill is not to apply to user-generated content, and it’s important to remember that any decisions about the regulation of any user-generated content will involve an open process at the Canadian Radio-television and Telecommunications Commission, or CRTC, where I believe all of those affected will have a real say in the decisions and outcomes that are made.

Minister Rodriguez recently remarked that this bill has spent the most time in the Senate in the history of Canada. Even The Globe and Mail declared this past Saturday that Bill C-11 is the most debated piece of legislation in Senate history. Well, colleagues, it’s great to be part of Senate history.

We have made a huge contribution, and I feel it’s now time for us to move on. I feel our work is done. I will be voting for the message and the motion before us, and I hope you will as well.

Thank you.

Some Hon. Senators: Hear, hear.

(On motion of Senator Yussuff, debate adjourned.)

Hon. Patti LaBoucane-Benson: Honourable senators, I am once again very happy to be speaking on the traditional territory of the Algonquin Anishinaabeg.

I am speaking today at the second reading of Bill C-29, the national council for reconciliation act. The council created by this bill would have a mandate to monitor, evaluate and report on reconciliation efforts federally and throughout Canadian society; highlight and share best practices; engage with Canadians to create a better general understanding of reconciliation and be a catalyst for innovation and action.

First, I want to express my sincere thanks to Senator Audette for sponsoring this legislation and bringing her experience to bear as a former commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

As she said in her remarks when we received the bill back in December:

. . . this bill is of vital importance. It is a step toward healing and reparation. . . .

. . . Bill C-29 gives us the opportunity to start laying the foundation for the shaputuan, the big tent of the Innus, or to take a step towards our collective responsibility. . . .

I agree that Bill C-29’s significance and potential is part of a landscape of reconciliation-focused bodies and organizations to help make lives better in her Innu territory, in my beloved Treaty 6 territory, here on the lands of the Algonquin and the Anishinaabeg people and for Indigenous and non-Indigenous people throughout Canada.

I also extend my thanks to the other senators who have contributed to the debate on the bill so far, including Senators Dupuis, Patterson, McCallum and Anderson. I have no doubt we all share the goal of making sure that reconciliation isn’t just a word but an accurate description of the way we live, the way we heal and the way we build a future together.

Over the course of our debate, we’ve heard concerns about some of the bill’s specifics, such as the national council for reconciliation’s composition and how it should be funded. These are important questions, senators, and I look forward to delving into them at the Indigenous Peoples Committee.

The main purpose of my remarks today is to address the matter of the bill’s genesis and the consultation and engagement process that preceded its introduction.

A couple of weeks ago, we heard Senator Anderson’s view that the process was deeply flawed, to the point that perhaps we should not advance Bill C-29 beyond second reading, at least for a time.

I have a different view. By the way, Indigenous leaders have been disagreeing with each other since time immemorial, so it should be no surprise that the Indigenous people in the Senate also have different perspectives on important pieces of legislation. I think it’s part of a healthy debate that results in good law.

The way I see it, Bill C-29 is the result of years of Indigenous-led efforts, beginning with the Truth and Reconciliation Commission of Canada, or TRC. That commission, led by our former colleague the Honourable Murray Sinclair, spent years travelling across Canada, heard from more than 6,500 witnesses — most of whom were survivors of the residential school system — and issued 94 Calls to Action.

Among those are Calls to Action 53 to 56, which advocate for the creation of a national council for reconciliation, with recommendations about how it should be resourced and how different levels of government could interact with it. Certainly, it wouldn’t be enough to go straight from the TRC Call to Action to legislation. An engagement process is required to get us from point A to point B, and I’m about to get to that, but I do think it’s important to keep the context in mind.

The idea of the national council for reconciliation wasn’t dreamed up in a brainstorming session in a boardroom on Wellington Street. It comes from the work of the TRC.

Next, in 2017, the government set up an interim board of First Nations, Inuit and Métis leaders to advise the minister on how to begin turning the TRC idea into legislation and, ultimately, into a functioning council. Among the interim board members were people with backgrounds in Indigenous government, like Wilton Littlechild, former grand chief of Treaty 6; in community activism, like long-time Quebec Indigenous activist Édith Cloutier; in economic development, like Clint Davis, an Inuk who was a CEO of the Canadian Council for Aboriginal Business; and in Indigenous rights law, like Métis lawyer Jean Teillet.

In addition to bringing their own expertise to bear, the interim board created an online mechanism to receive written submissions on how the national council for reconciliation should be set up, and the interim board held a major engagement session in April 2018 with dozens of Indigenous and non-Indigenous participants from across the country with diverse backgrounds, experience and knowledge.

The participants included Melanie Omeniho, President of Les Femmes Michif Otipemisiwak; Jocelyn Formsma, a board member of the Indigenous Bar Association and CEO of the National Association of Friendship Centres; Maggie Emudluk Sr., President of the Nunavik Landholding Corporations Association; Harold Robinson, a Métis lawyer and mediator with the Canadian Human Rights Commission; Stephen Kakfwi, the former premier of the Northwest Territories and a residential school survivor; and Elder Claudette Commanda, the first Indigenous chancellor at the University of Ottawa.

A few months after that engagement session, later in 2018, the interim board delivered to the minister a report that served as the basis for the bill that is currently before us. That report was shared at the time with the Assembly of First Nations, with Inuit Tapiriit Kanatami and the Métis National Council. This past February, senators, it was shared with all of you, along with a summary of the April 2018 engagement session.

One of the report’s recommendations was that an Indigenous-led transitional committee be established to conduct more targeted, technical engagements and review the draft legal framework to be developed by the government. Essentially, the first body — the interim board — made conceptual recommendations in advance and crafted an initial working draft of the bill, while the purpose of the second body — the transitional committee — was to do the more technical, detailed work of reviewing legislative language as the text got firmed up.

The transitional committee was appointed in January 2021, with some members carried over from the interim board as well as some new appointees. Earlier this year, the Senate had the opportunity to receive a briefing from several of them: Edith Cloutier, whom I mentioned earlier; Rosemary Cooper of Pauktuutit Inuit Women of Canada; Mitch Case of the Métis Nation of Ontario; and Mike DeGagné, the former president of Nipissing University, Yukon University and the former CEO of the Aboriginal Healing Foundation.

The transitional committee submitted its final report to the minister in March 2022. Then, the minister discussed the bill with the leaders of the Assembly of First Nations, or AFN, Métis National Council, or MNC, and Inuit Tapiriit Kanatami, or ITK, in early May. Bill C-29 was introduced in late June.

So that was the process that got us from the idea’s inception by the Truth and Reconciliation Commission, or TRC, through to introduction last spring. There is more consultation to come, as required by subsection 13(2) of the bill, which says:

. . . the Council must consult with a variety of persons with relevant knowledge, expertise or experience, including elders, survivors of the discriminatory and assimilationist policies of the Government of Canada and Indigenous law practitioners.

The government has deliberately avoided being overly prescriptive about the details of how the council will operate, leaving considerable room for the council itself to engage further with individuals and organizations as it develops its methods and procedures and determines its areas of focus. Still, it is certainly legitimate to believe that consultations thus far should have been more extensive, that a wider net should have been cast or that more or different people should have been involved in more or different ways.

I do not, however, accept that the process I have described can be dismissed as “unserious.” On the contrary, this bill is the result of a lot of work done by impressive, credible, eminent Indigenous peoples — First Nations, Inuit and Métis peoples with capacity. These are Indigenous leaders with considerable experience and expertise. We owe them the respect of sending this bill to committee, inviting them to testify and engaging conscientiously with the product of their work.

Speaking of respect, the sponsor of Bill C-29 in our chamber is also an impressive, credible, eminent Indigenous leader who’s not exactly a novice on the subject of engagement with Indigenous people and organizations. That doesn’t mean we all have to agree with Senator Audette or vote the way she would like us to — although I’m sure she would like us to — but I hope it means that our collective approach to this bill will be studious, thoughtful and devoid of derision.

It’s also important to remember that we are not Bill C-29’s first point of contact with the Parliament of Canada. A couple weeks ago, Senator Tannas raised the example of the old Bill S-3, which the Senate held at committee for several months in 2016 and 2017 while the government conducted additional consultations. But that was a bill introduced in our chamber before the members of the other place had a chance to weigh in.

In this instance, we’re talking about legislation that has already been considered and adopted by our colleagues up the street. Their Indigenous and Northern Affairs Committee held eight meetings on it last fall. They heard from 38 witnesses, made several amendments and MPs from all parties ultimately gave this legislation their unanimous support, including First Nations, Inuit and Métis members of Parliament Lori Idlout from Nunavut, Michael McLeod from the Northwest Territories, Jaime Battiste from Nova Scotia, Marc Dalton from B.C., Leah Gazan from Winnipeg and Blake Desjarlais — my friend — from Edmonton.

That doesn’t mean we’re obligated to set aside any concerns we might have — absolutely not; it’s quite the opposite. It’s our turn now to subject this legislation to senatorial scrutiny. But when the people’s elected representatives have completed an extensive study and sent us a bill that they all believe is worthy of support, our job — at minimum — is to get it to committee and conduct our own extensive study.

We will undoubtedly hear testimony at committee from the bill’s architects and supporters, as well as from people who have been making criticisms and asking questions about it. I’m keen to hear from all such witnesses and to ask them questions of my own, including about the consultation process. I am also eager to analyze Bill C-29 in detail with the benefit of their input.

Committee study will be a further opportunity for Indigenous voices to be heard, for differing viewpoints to be considered and for senators to determine if there are ways in which the legislation can be improved. That is at the core of the Senate’s institutional role, which is to serve as a complementary chamber in this bill’s legislative journey.

I’m under no illusions that a single bill can achieve reconciliation. But in the last few years, we’ve had the opportunity to support bills about Indigenous languages, child welfare and land management; bills addressing overrepresentation of Indigenous peoples in the criminal justice system; bills implementing self-governance agreements; and, of course, Bill C-15 regarding the UN Declaration on the Rights of Indigenous Peoples.

In my view, Bill C-29 is an important element in this series of legislative measures, with many more to come.

Once again, I thank Senator Audette for sponsoring the bill, and I thank all senators who have participated in this debate. Even when we disagree about particular legislative measures, I know we share the ultimate goal of meaningful, impactful reconciliation.

In that spirit, I hope committee study of Bill C-29 can begin soon.

Hiy hiy.

Hon. Paula Simons: Honourable senators, in November 2021, when Governor General Mary May Simon delivered her first Speech from the Throne, she read to us these stirring words:

When someone in our country is targeted because of their gender, or who they love, or where they come from, the way they pray, the language they speak, or the colour of their skin, we are all diminished.

She went on to underline the government commitment to stand up for LGBTQ2 communities — a commitment that seems even more urgent now, a year and a half later, as we see the rising tide of anti-trans hate spilling over the U.S. border and into the lives of Canadians.

It is against that backdrop that I rise today — on Yom HaShoah, as it happens — to celebrate one of the most important human rights victories in Canadian history, and to salute the courageous Edmontonians who made it possible.

This month marks the twenty-fifth anniversary of the Supreme Court of Canada’s Vriend decision, which expanded the Charter to protect queer rights in Canada.

In 1991, Delwin Vriend, a 25-year-old lab instructor at The King’s College in Edmonton, was fired from his job for being gay. Delwin was a quiet, thoughtful young man who loved math and science, and who grew up in a warm and devout Christian Reformed family who loved and accepted him for who he was. The board of the college was not so open-minded.

After his dismissal, Vriend filed a complaint with the Alberta Human Rights Commission. At the time, Alberta was one of only two provinces that hadn’t added protection from discrimination on the basis of sexual orientation to its human rights laws. And so, the Alberta Human Rights Commission told Delwin Vriend that he had no case.

He appealed to the Court of Queen’s Bench of Alberta — and won. Madam Justice Anne Russell ruled Alberta’s human rights legislation unconstitutional. She called the province’s refusal to add sexual orientation “a legislative limitation which controverts the very principle it purports to embody.”

The Alberta government appealed in its turn. Edmonton’s LGBTQ community rallied around Delwin, and so, too, did a small brave band of Edmonton lawyers, led by Sheila Greckol and Doug Stollery, who took his case to the Court of Appeal of Alberta.

In a strange irony of history, the Court of Appeal of Alberta panel that heard the case was chaired by Mr. Justice John McClung, the grandson of Nellie McClung, who was the suffrage crusader and one of the Famous Five instigators of the Persons Case. It was the case that not only established that women had the right to sit in the Senate, but also established the legal principle that Canada’s Constitution was a living tree — in the immortal words of Lord Sankey, “a living tree capable of growth and expansion within its natural limits.”

But this McClung was no “living tree” fan, and he wasn’t sold on the Charter either. While Sheila Greckol, Delwin Vriend’s lead counsel, was addressing the court, Mr. Justice McClung actually swivelled around in his chair, turning his back on her as she spoke — and his written judgment in the case dripped with disgust and disdain.

The Alberta legislature, he wrote, was “not to be dictated . . . by federally appointed judges brandishing the Charter.”

It was not the role of legislatures, McClung wrote, to enter into every “morally-eruptive social controversy,” nor to choose between what he called “the divinely-driven right and the rights-euphoric, cost-scoffing left.”

McClung also wrote:

I am unable to conclude that it was a forbidden, let alone a reversible, legislative response for the province of Alberta to step back from the validation of homosexual relations, including sodomy . . . .

But Delwin Vriend didn’t give up — and Greckol, Stollery and their team wouldn’t give up. They launched an appeal, funded in no small part by Doug Stollery’s parents, well-known Edmonton philanthropists Bob and Shirley Stollery, for whom Edmonton’s Stollery Children’s Hospital is named.

Vriend’s team gathered other powerful legal allies. Everyone from the Canadian Labour Congress to the Canadian Jewish Congress, as well as the United Church of Canada, signed on to intervene in support of Vriend.

Julie Lloyd — who is, today, an Alberta family court judge — was, back then, a young lawyer, and one of the first openly lesbian lawyers in Alberta. She represented the Canadian Bar Association at the Supreme Court that day.

Lloyd told me:

It remains one of the most moving experiences of my life. It was transformational. You could see the momentum. All the ridiculous arguments that had been given to discriminate against gays and lesbians just started to fade away. They disappeared like a puff of smoke in the clear light of the Supreme Court. Each of the arguments was revealed to be specious, haranguing, alarmist and simply untrue. They collapsed like a house of cards.

Everyone that day expected that Sheila Greckol would make the closing arguments; she was the seasoned litigator. But, at the very last moment, she insisted that Doug Stollery, a soft-spoken solicitor who had almost no courtroom experience, speak for Vriend — and for himself, as a gay man.

Stollery told me this years later:

I remember when it was my time to argue, I should have been nervous. Instead, I was hoping I wouldn’t cry. And I didn’t actually cry. But I came close.

And then, on April 2, 1998, Canada’s Supreme Court said it didn’t matter that the Canadian Charter of Rights and Freedoms didn’t include sexual orientation when it was written in 1982. The court deemed sexual orientation an analogous ground — analogous to race or gender or religion.

In their unanimous decision, the judges said our Constitution was still a living tree, and that we — in Canada — had grown and evolved to the point where it was unconstitutional to discriminate against LGBTQ Canadians. The court went further, and read in that protection to the Charter and to Alberta’s Individual’s Rights Protection Act.

In Alberta, the hateful backlash was fast, ferocious and frightening. In the wake of the decision, Premier Ralph Klein came under immense pressure, including from his own caucus, to invoke the notwithstanding clause and, thus, perpetuate legalized homophobia in Alberta.

I remember covering the story for the Edmonton Journal which had, under the courageous moral leadership of publisher Linda Hughes and editor-in-chief Murdoch Davis, argued passionately against invoking the clause. Tensions were high. We didn’t have Twitter or Facebook or TikTok back then, but the city and province were humming with anger and anticipation, waiting to see what would happen next.

In the end, Premier Klein pushed back against certain right-wing voices in his own party, moved in part by the wave of nasty homophobic letters, faxes and phone calls to his office. He was, I’ve been told, genuinely appalled by some of the hateful messages, and said he’d had no idea that gay Albertans faced such hatred and discrimination.

It is another accident of history, though, that one of his closest political advisers and confidantes, Fay Orr, happened to be a queer woman. And because Ralph Klein had a lesbian friend, he was able to put a human face to a political and philosophical decision. And so, the ruling stood and established the rights of gay, lesbian, bisexual, trans, non-binary and two-spirited people in Alberta and all across Canada. Everything else, from same-sex marriage to the ban on conversion therapy, has flowed through the Vriend decision.

The ruling also helped to delineate the powers and rights of the Supreme Court to interpret the Canadian Charter of Rights and Freedom. It helped to reinvigorate the doctrine of the living tree, and to free us from the tyranny of textual literalism. It gave our courts permission to interpret the Constitution and the Charter in keeping with the times, as social mores and ethos evolved. And, indirectly, I’d argue, the Vriend decision helped demonstrate the practical limits of the notwithstanding clause, and the moral and political risks to politicians who were tempted to invoke it. But the Vriend decision didn’t just change Canadian law — I believe it profoundly changed the way ordinary Canadians thought about their gay friends and neighbours and relations.

Writing for the Alberta Court of Appeal, Mr. Justice John McClung had scoffed at the idea that legislation or a court decision could change public attitudes, but he was wrong about that too.

As Julie Lloyd once told me:

Vriend absolutely was the foundation. It ringingly welcomes gays and lesbians into society. It was an education for people to understand that you can’t put the rights of a reviled minority rights to a popular vote. The only way to protect the Charter rights and freedoms enshrined in our constitution is to make the courts the active guardians of those rights.

The decision and its aftermath changed the face of Alberta, too. Sheila Greckol, who’d been treated so disgracefully by John McClung, went on to become a respected Court of Appeal justice herself. Doug Stollery went on to become chancellor of the University of Alberta. Julie Lloyd, as I mentioned, became a provincial court judge. Michael Phair, a gay activist who fought hard for Vriend from the very beginning, became Edmonton’s first out gay city councillor. And Ritu Khullar, who was then a young labour lawyer who intervened in the Vriend case on behalf of the United Church — well, she is now Alberta’s new chief justice. Oh, and King’s College, which now is called King’s University College, today hosts its own regular pride events organized by its student group, SPEAK, which stands for Sexuality, Pride, and Equality Alliance at King’s.

Albertans and Canadians owe so much to the quiet, self-effacing courage and principle of Delwin Vriend himself. We have a statue of Nellie McClung and the rest of the Famous 5 right outside this building. We have a picture of Viola Desmond on our $10 bill. But there are no statues or portraits of Delwin Vriend, who was every bit as much a human rights hero. That’s probably all right with him. He has never sought the limelight. Indeed, he has done all he can to avoid it. He left Canada years ago, to work as a computer expert, first in Silicon Valley, later in Paris. Delwin Vriend has always understood that his battle was not for him alone, that it was a battle for every single one of us:

Even at the time we were fighting our case, we didn’t just see it as a fight about sexual orientation. This was about so much more than getting sexual orientation in. The ruling says you can’t exclude people. It means every single Canadian is equal and you must include them.

Still, today, 25 years later, when we see the mounting backlash across the continent to gay rights and trans rights; when we see ugly persecution by governments in countries including Hungary, Uganda and Afghanistan and when we see countries like Italy rolling back LGBTQ rights, it’s important that we never forget that at its heart, Vriend was a decision about recognizing the dignity, the humanity and the citizenship of queer Canadians.

On this twenty-fifth anniversary, when we’ve recently seen hateful protesters picketing drag shows in B.C. and homophobic thugs honking in the streets of Ottawa and threatening Ottawa school trustees, I want to leave you, my Senate colleagues, with these words from my friend, Judge Julie:

It is the duty of citizens to oversee their government. It’s the duty of citizens to do things, even when it’s hard. The Constitution doesn’t whip itself into shape. We have to do it ourselves.

We as senators have a profound duty to oversee the government and hold it to account, to protect the Constitution and the Charter, to stand always as a bulwark against majoritarian tyranny and to stand up for the rights of Canadians even, and particularly, when that’s unpopular. It’s especially important to remember that today, on Yom Hashoah, the Holocaust day of remembrance, when we remember the 6 million Jews who died because of hatred run amok and remember, too, the thousands of homosexuals persecuted, imprisoned and murdered by the hate-curdled Nazi regime.

On this silver anniversary, I want to thank all the remarkable Edmontonians who fought so hard, so courageously and so successfully for equality and justice for all Canadians. But I also want to ask us in this chamber to do all we can to ensure that the government lives up to the promises of its own Throne Speech and continues to make Canada a queer rights and human rights beacon for the world. We are all the guardians and gardeners of the living tree that is our Constitution, and we must be sure to tend and protect it.

Thank you and hiy hiy.

(On motion of Senator Gagné, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Seidman, for the third reading of Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), as amended.

Senator Dalphond: In December 2021, when the Quebec government announced that it was introducing electronic monitoring devices with $30 million in funding, it was in response to the recommendation of an expert committee on support for victims of sexual assault and domestic violence in its report entitled Rebuilding Trust. This was one of several measures introduced by the government.

When the government announced that it would allocate $41 million in funding over five years to implement the electronic monitoring devices, the initiative was applauded, particularly by the Alliance des maisons d’hébergement de 2e étape pour femmes et enfants victimes de violence conjugale, or Alliance MH2. That organization called on the Quebec government to ensure that the electronic monitoring devices could be used effectively throughout Quebec.

Senator Pate, what do you say to those experts who concluded that these devices are an effective and necessary measure? What do you say to those women who are advocating for them in shelters and saying that this measure is necessary?

[English]

Hon. Kim Pate: Honourable senators, I rise today to speak as critic of Bill S-205. Senator Boisvenu, since the horrors of the horrible murder of your daughter, you have done your utmost to ensure that these issues remain at the forefront of our discussions and that you do everything you possibly can to protect the rights and the interests of victims. For that, all of us salute you and thank you for your work.

Like you, most of us want to support efforts to address and prevent violence against women, particularly intimate partner violence. As such, the impulse to support bills like this one, as well as others, is strong and genuinely driven by extreme care and concern. Unfortunately, I have to say that Bill S-205 proposes legislative changes that, if implemented, would provide little more than promises of action in law; incomplete, inadequate and ineffective interventions and, therefore, a truly dangerous false sense of security for far too many who are already vulnerable and victimized.

As numerous witnesses attested to before the Legal Committee, the provisions proposed would be difficult, if not impossible, to enforce in most parts of this country. That is because the primary issue for women is that misogynist attitudes mean that they are too often not believed when they bring forward allegations of abuse. On top of this, the inadequacy of broadband coverage and the unreliability and expense of electronic monitoring equipment could result in the diversion of resources much needed to prevent and combat gender-based violence.

Indeed, as the Mass Casualty Commission stated in Part C of its recently released report, there is a “Collective and Systemic Failure to Protect Women.”

The report goes on to say that:

Gender-based, intimate partner, and family violence is an epidemic. Like the COVID-19 pandemic, it is a public health emergency that warrants a meaningful, whole of society response.

We have been told that this bill was virtually written by survivors, and I don’t doubt that. And yet, as so many of us know from decades of doing this work, and as we heard from witnesses, in a context where so little has been provided to assist survivors over the years, it is not surprising that they might grasp at any gesture that seems supportive, no matter if it is inadequate.

Electronic monitoring is being offered as a solution to victims and survivors of intimate partner violence who are desperate for anything that may help them regain a sense of safety and security. It is part of a long trend of offering less than what is needed to assist and protect the most vulnerable and marginalized. Instead of inadequate and ineffective responses, isn’t it time we all decided to address the root causes of these vulnerabilities and marginalization rather than continuing to pass laws that are deficient and thereby allowing situations to continue — unfortunately — unabated?

Colleagues, the main issues with this bill are that, one, electronic monitoring is being touted as an effective tool that would prevent violence against women when, in fact, the evidence depicts quite the opposite. Electronic monitoring has been proven to be unreliable, inconsistent and ineffective when it comes to addressing causes of violence against women.

As Senator Boisvenu reminded us earlier when speaking about the Mass Casualty Commission, we need an urgent and comprehensive government response to address, redress and prevent violence against women and intimate partner violence. Regrettably, the measures proposed in this bill are redundant and may serve as a distraction and a diversion of desperately needed resources that could otherwise be allocated to services and interventions that have been proven time and again to more effectively support and prevent violence against women.

Bill S-205 places an emphasis on the use of electronic monitoring devices for men who have committed violence against women. It’s a plan to use these devices when people are not in custody, as a method of keeping women safe. Bill S-205 does not do the necessary work of unweaving the fabric of misogyny, racism and class bias, which fuel violence against women and are perpetuated in and intensified by the criminal legal and penal systems.

Bill S-205 does not address the economic, social, racial and gender inequality, which abandons women to violence, poverty and racism. Nor does it deconstruct the values and attitudes that reinforce it. The significant global rise of violence against women and femicides during the COVID-19 pandemic points to the clear and direct correlation between economic and social pressures and normalized gendered and racialized violence. Investing in services that enable safety and support must instead be prioritized.

Physical violence is only one aspect of a wider net of coercive and controlling conduct. The tactics used against women include intimidation, isolation and control, and these factors are “more predictive of intimate homicide than the severity or frequency of . . . physical violence.”

Social and cultural messages that privilege patriarchal ideas and attitudes and hyper-responsibilize women from childhood to consider themselves responsible for preventing their own victimization — combined with behaviours that control, isolate or intimidate via emotional, physical, social, financial abuse of inequities, and often a combination of these — contribute to gross under-reporting of violence against women.

When women are only offered a criminal legal enforcement model, particularly in the face of millennia of inadequate responses, it should not surprise us that they may agree to grasp for the only option provided rather than the effective and comprehensive approaches to address violence against women that are needed. This is a case where the inadequacy of options makes the illusion of choice and safety just that — illusory illusions.

Rather than repeat the issues I raised at second reading, allow me to share the perspectives of witnesses, particularly women’s groups, police and legal organizations who appeared at committee for this bill.

Rosel Kim of Women’s Legal Education and Action Fund, better known as LEAF, reminded us that electronic monitoring already exists as an option for judges to impose as a condition of bail. It’s already a part of our law. It’s also part of our sentencing, probation and parole options. While this may help people feel safer and protect some survivors, electronic monitoring can be ineffective and even harmful, especially for survivors who are Black, Indigenous and racialized.

For survivors living in rural areas and remote communities, including Indigenous communities, poor connectivity issues and the lack of access to geolocation services decrease the effectiveness of monitoring. Many women fleeing violence face the risk of being electronically monitored themselves. Electronic monitoring is also costly. In Ontario, electronic monitoring devices cost between $400 and $600 a month. The Quebec government has committed $41 million to implement its electronic bracelet program.

Meanwhile, LEAF told us:

Right now, we are seeing a crisis in shelters, and we are generally seeing a lot of shortcomings in resources that the survivors really need. Those would be the priorities that I would point to, where the survivors really need support, before considering things like electronic monitoring.

Senator Boisvenu rightly points to the Quebec experience as a model, but as recent media coverage of the Quebec experience revealed, in addition to the lack of internet or policing capacity in many rural and remote communities, survivors face the additional challenges of not having the economic and social supports to enable them to even leave a violent situation. Witnesses urged us to consider devoting resources to directly supporting and therefore empowering survivors instead of purchasing expensive and ineffective electronic monitoring equipment and infrastructure.

Alain Bartleman of the Indigenous Bar Association said:

. . . 21% of the women who exited the shelter system in Quebec, according to a 2018 study, felt they had no option but to return to their home where the abuser or the accused lived.

He spoke about the many communities that he knows and works in where there is no cell coverage and a concern with respect to geofencing, saying:

I’m not sure what value would be placed for a geolocation service if an individual was provided with a location that was only accurate to about a kilometre and a half, which could cover the entirety of the reserve . . . .

He and other lawyers also raised concerns with respect to false alerts created by:

. . . for example, extreme cold or extreme weather events, where these monitors or monitoring systems will often fail . . . .

He gave examples of situations where equipment failures such as dead batteries trigger a system alert and put additional stressors upon under-resourced, underfunded and understaffed police, like the officers I had the privilege of meeting with this afternoon from the Canadian Police Association who talked about some of these very issues.

He stressed that requiring or expanding the use of monitoring services within Indigenous communities, whether through a provincial or a federal initiative, could prove to be just an additional burden upon police services, which could unintentionally restrict the resources and police availability to provide actual support, protection and interventions that the victims of domestic violence may need when they call.

He also urged us to consider — rather than purchasing electronic monitors — that governments allocate the estimated $400 or more cost per device to increasing the supply of shelters within the First Nations context, where the need for additional housing requires not just a sense of urgency but a sense of crisis or calamity. He said:

This $400 may not go far enough. I would, however, note that in many cases, therapy and other treatments for unresolved mental illnesses could be alleviated by, frankly, the provision of a subsidy in the amount of that $400 for the accused. . . . I do think it would go some ways to reducing if not the prevalence then certainly the severity of the predicament that many Indigenous women and girls find themselves in when confronted with domestic violence.

He went on to say:

I’ll speak particularly in the First Nations context. We’ve endured centuries of systemic racism and abuse, which culminated, in many cases, with the horrors of the residential school system, which only recently ended. It’s trite, but it is true to say that hurt people hurt people. . . .

Breaking the cycle of trauma through the provision of mental health and other resources, I’d suggest, is probably the most effective way of preventing domestic violence, not through monitoring of individuals.

Daniel Brown of the Criminal Lawyers’ Association agreed and added that the bill is not only:

. . . unnecessary because the tools already exist in our justice system . . . .

This bill runs afoul of Supreme Court jurisprudence . . . . Creates insurmountable practical hurdles to implement . . . . It will negatively impact an overburdened system, which in turn will impact the public’s confidence in our justice system. . . . It will disproportionately impact racialized, Indigenous, vulnerable communities and low-income accused . . . .

He further said:

From a practical perspective, the ability to sort of implement ankle bracelet monitoring at that early stage is near impossible. Even when we have clients of means who can have these conditions imposed, it takes days, sometimes even weeks, to put a plan like this together and to ensure that the plan is implemented. . . .

To give the power to the police to impose such a harsh condition but not the ability, for example, to impose any other type of judicial supervision, like a surety — it is just incongruent . . . .

Sarah Niman, representing the Native Women’s Association of Canada, advised that:

NWAC supports and advocates for Indigenous women’s safety through violence prevention strategies and services. . . . To prevent domestic and intimate partner violence, Canada should not rely on legislative amendments to make a difference for Indigenous violence victims. Addressing systemic racism . . . .

Addressing the MMIWG report’s 231 Calls for Justice is an imperative. . . .

Electronic monitoring devices set more Indigenous people up for escalating criminal sanctions rather than address the root cause.

She went on to say:

The Native Women’s Association of Canada does not support electronic monitoring as a means of addressing intimate and domestic partner violence. . . .

. . . With all due respect to Senator Boisvenu and the work that he’s doing — and we understand that in building this bill, he heard directly from victims who said they would like to see electronic monitoring — but where Indigenous women compose such a large proportion of domestic violence victims, that is not what the women we represent are asking for.

She also added:

One of the things we learned from NWAC’s work and from the National Inquiry is that there are high instances of dual arrests when the police are called for domestic violence. So that perpetuates Indigenous women’s over-incarceration and involvement in the criminal justice system. . . .

Where NWAC is interested in balancing victims’ rights, we are equally concerned with keeping Indigenous people —

— especially women —

— out of jail . . . .

Based on what NWAC knows about the myriad of reasons that inform hesitancy to disclose family violence . . . maybe [the perpetrator is] the primary breadwinner, maybe that means they have to leave their home, oftentimes wider cultural, familial and community concerns — if those all play into the reasons why a woman would fear calling the police or disclosing violence to somebody, like a third party, those would also inform her hesitancy or vulnerability . . . .

 . . . from the women we hear from that when there aren’t those healing resources, they often feel like it’s incumbent upon them to mend fences . . . .

The voice we’re also not hearing is, of course, the children’s. NWAC’s hope is that when Indigenous children see that their parents or aunties and grandmothers are experiencing violence, they see that someone is coming to help them and that that person does so in a positive, respectful, culturally appropriate way.

Emilie Coyle, with the Canadian Association of Elizabeth Fry Societies, stated:

In the case of this legislation, we must ask, will this legislation stop intimate partner violence from happening in Canada, or will it utilize necessary resources that could be spent on prevention? Will it address the root causes of intimate partner violence: misogyny and patriarchy?

These questions point us to examples where well-intentioned legislation has gone awry in the past and caused further harm rather than preventing it . . . .

I’m sure you’ve heard of the woman fleeing violence who throws a toy [a plate or a pan] in self-defence; this toy becomes the weapon in the assault-with-a-weapon charge that is then laid on her . . . there’s a very real possibility that, should this bill pass, [victimized women] would be the ones who would be wearing the electronic monitoring bracelets.

Addressing gender-based and intimate partner violence cannot [only] be reactive. It must be a multi-pronged approach. Action needs to be taken by introducing a swath of initiatives aimed at getting at the root cause of the harm.

We argue that in order to do this we need to shift our focus away from a carceral response to a more sustainable and long-term approach. We need national awareness-raising efforts. We need a robust mental health care system where everyone can access the support that they need to be healthy.

We need basic universal income to ensure people do not remain with their violent partners for economic reasons. We need readily available counselling services. After all, intimate partner violence is a social issue and not just a private one.

Survivors often list services like social workers, financial assistance, housing, culturally specific resources, mediators, domestic violence specialists, peers, community prevention or de-escalation — and the list goes on — in the services that they ask for.

We know that we must and we can interrupt intimate partner violence, keeping the survivors of intimate partner violence at the centre of all of our efforts.

Ultimately, electronic monitoring is an expensive undertaking that does not touch on the underlying cause of intimate partner violence.

Mary Campbell, a retired expert and former senior public servant with Public Safety Canada, underscored that:

 . . . I would leap at anything that would keep people safely out of the hellhole of prison, so you might be surprised to hear that I am not a fan of electronic monitoring.

 . . . the research really is, at best, inconclusive that EM, electronic monitoring, adds anything. . . . there will be anecdotes, but overall, the research is not there to support it.

[Electronic monitoring will not] give you . . . the kinds of results that you would like to see for that kind of money. We’re aware of many other programs that will, in fact, give you a much greater return.

She also reminded us that we don’t know the personal stories of most of the witnesses who appear before the committee, and thus urged us to not make simplistic assumptions about who has or has not experienced serious victimization, and that:

The bottom line is that we’re all united in the same goal. I think prudent governance is that the people’s money be invested in what will give real results.

The National Association of Women and the Law reiterated the need for other solutions and systemic change. Women’s groups have long demanded that responses address root causes of violence against women:

. . . the legislative framework required to prevent and respond to VAW must be framed to also recognize and redress women’s poverty and economic insecurity, which structures and shapes women’s experiences of violence, and especially those of groups of women that are particularly vulnerable to VAW in its many forms. Ensuring that the historic and current context is well understood is essential to informing this analysis, particularly in relation to colonialism and the ongoing impacts . . . on violence against Indigenous women.

Women’s groups have also noted that:

All VAW law reform in Canada must reflect intersectional feminist analysis, and be grounded in human rights and specifically women’s human rights.

Any meaningful change must address the underlying cognitive and behavioural issues that lead to violence against women. Strapping an electronic monitor to a person’s ankle does nothing to stop a person from continually committing violence both while the device is attached and after it is removed. Experts urge that we should not confuse technological aid with meaningful intervention and treatment. Meaningful treatment must address why a person is violent in order to truly address root causes and break the cycle.

I want to acknowledge that is also part of the aim that Senator Boisvenu hopes will come out of this bill, but the central component is the electronic monitoring.

Addressing the economic inequality of women is a critical aspect. UN Women and the World Health Organization have noted that the links between poverty and violence against women are well-established. According to research from the group, Surviving Economic Abuse, 95 percent of domestic abuse victims experience economic abuse.

Nearly all victims of violence have had the common experience of economic abuse. In order to address the root of this issue, it is paramount that women have alternatives to remaining in dangerous family and community situations. Housing and economic supports must be both adequate and accessible. Most importantly, unlike most current programs, they should not result in women facing threats of their removal when they seek help for themselves and their families.

The role of economic resources in facilitating access to physical safety is clear, underscoring the critical need for a guaranteed liveable basic income, which would reduce the financial burden on women and allow them to make decisions about how best to care for themselves, their families and look further than short-term safety. We need to first do everything possible to prevent women being at risk of violence instead of routinely focusing on inadequate after-attack interventions such as electronic monitoring.

A recent Globe and Mail article states that in Quebec:

. . . amid a surge in hotline calls and texts from victims seeking support this year, women are being turned away from shelters that are stretched beyond capacity.

This illustrates that, even in Quebec, there is a drastic need for proper supports to address and end violence.

It is essential that women have the resources to leave violent relationships, not that we merely attach inadequate approaches after the fact. Chronic underfunding of services for women keeps them and their children at increased risk and pushes them back into dangerous situations — too often lethally. Bill S-205 does not address this.

More specifically, Bill S-205 does not address these issues for Indigenous, Black and other racialized folks in Canada. Instead, it puts increased emphasis on the use of a system that is already distrusted, already failing these groups and asks that they once more simply trust this system. The potential for inadequate, even horrific results of stand-alone measures which create a false sense of security that they will result in the protection of women is quite frankly terrifying.

To conclude, honourable senators, allow me to summarize the five main reasons why this bill will fail to achieve its sponsor’s very worthy objectives, and ones I wholeheartedly support.

First, as ineffective as it is as a tool to prevent violence against women, electronic monitoring is already available and used in some jurisdictions. It’s already in the Criminal Code. This bill is not necessary. In any event, adding statutory authority for imposing electronic monitoring is not the missing element nor even a key to preventing violence against women.

Second, the bill ignores the continuing technological problems with electronic monitoring and thus runs the clear and predictable risk of promoting a false sense of security for those believing it might protect them.

Third, it ignores the inability of police to respond immediately when an alarm is triggered, be it due to geographical remoteness, insufficient police resources, competing emergencies, or stereotypes, biases or conclusions regarding the efficacy of responding — for instance, in situations where there may have been repeated calls, including some judged by the authorities to be false alarms.

Fourth, it assumes that a man who has ignored all other social and legal norms will suddenly become compliant due to the affixing of a band to their ankle.

Lastly, it does nothing to address the central systemic issues that give rise to and perpetuate misogynist violence, much less ensure modification or management of the rage and other factors that fuel individual men when they perpetrate acts of violence against women.

To conclude, thank you Senator Boisvenu and colleagues for your commitment to ending violence. It is no doubt that we all want a goal to which we can strive. We all want to do this work.

As the Missing and Murdered Indigenous Women and Girls Inquiry and now the Mass Casualty Commission have reiterated, we must tackle this issue in a way that addresses these concerns. Regrettably, as I have already detailed, the approach proposed by this bill is not what we ought to pursue. Instead, I suggest we address the ideas and attitudes that fuel this violence in society, while simultaneously implementing the sorts of robust social, health and economic supports that can truly assist women by preventing the circumstances that give rise to violence in the first place, and where those are inadequate — and they will be — that we assist victims to actually escape the violence.

Meegwetch, thank you.

[Translation]

Senator Pate: I want to prevent those deaths as well. Part of what we are talking about, and part of what I was trying to underscore, is what we also heard from folks who appeared before us, one issue being that we could already provide these provisions in law.

The Criminal Code currently allows for the types of interventions that you are talking about. The fact that they are not implemented or that violence against women is not taken seriously or the fact that many people do not report it is exactly part of the problem. It is not a desire to not have support or safety for any women, whether it is the women that you have been working with or the women that I work with. It is a function of looking at what will actually move things forward in the broader sense and protect lives overall.

I do not disagree with you. But these provisions have existed in law, and the fact that they have not been used is very much for some of the reasons that you and I both know, and the biases of the system.

It is difficult. I don’t understand; I’m not in your shoes. I sympathize, and I have similar attitudes and values and desires to see these issues addressed. Having worked in that system for so long, I cannot see this doing that. I want to see some measures that will actually change what happens. Thank you.

[Translation]

Senator Pate: I do not disagree with you. There were some people who came before us, and as I mentioned at committee, there were many women who called who did not want to come and talk about their personal situation in front of our committee, some of whom we are meeting with to talk about, for instance, Senator Manning’s framework discussions and the legislation that he is promoting, because they very much saw the same issues that were being discussed.

The least comfortable thing about this for me is that I don’t doubt for one minute the objectives that Senator Boisvenu has. I hope you don’t doubt that I have the same objectives. The fact is that the current provisions are not used, that provisions that have been brought in place to protect women, like mandatory charging practices, have been used mostly against women, especially Indigenous and other racialized women, and have resulted in them being criminalized in the context of them trying to escape violence. But when the police come or the Crown hears a story and — you heard Senator Simons talk about Justice Sheila Greckol, and but for Justice Sheila Greckol’s decision, Helen Naslund would still be serving time in prison — 18 years — because everybody believed that she was the problem, not the man who kept her imprisoned in her home and raped her and shot at her and shot at her children for 37 years.

That is the crux of the problem. We’re not addressing it. Each time we add a new measure that heaps on more legal provisions, we increase the cost without increasing the effectiveness. That is where I think we have a responsibility in our role as senators to take this seriously.

It is with heavy heart that I stand up and talk about these things because I have no doubt that every one of us wants to stop this. However, will we have the wherewithal to actually do the hard work necessary to make this happen?

Thank you.

[Translation]

Hon. David M. Wells: Honourable senators, I am pleased to rise once again to speak at third reading as the Senate sponsor of Bill C-228, An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act and the Pension Benefits Standards Act, 1985.

Before I begin, I want to thank the Standing Senate Committee on Banking, Commerce and the Economy and its chair, Senator Wallin, for the expert work on this bill. The committee held three meetings, heard from 16 witnesses and received 27 briefs. We had extensive discussions with the witnesses, and ultimately agreed that Bill C-228 should be passed without amendment.

I also want to thank my colleague Senator Yussuff, who has been a strong advocate for this legislation and the best critic that a sponsor could hope for. It has been gratifying to be able to work together on advancing a bill that is long overdue — and Senator Yussuff’s collaboration attests to the importance of this legislation, and the urgent need to see it become law.

Lastly, I wish to give credit to the author of this important legislation, Marilyn Gladu, the Member of Parliament for Sarnia—Lambton. She has created legislation that directly helps Canadians in an area that has a significant effect on their retirement and quality of life. MP Gladu appeared at committee to defend the bill, and her skill and commitment were impressive.

Colleagues, as I mentioned in my second reading speech, this bill has three simple elements: The first is that people holding defined benefit pension plans move up the line of priority for payout if a company goes bankrupt. Bill C-228 will finally ensure that, in the case of insolvency, pensions get paid ahead of large creditors and executive bonuses.

Second, this legislation will provide a mechanism to transfer funds into a pension fund in order to restore it to solvency.

Lastly, it will require that the Superintendent of Financial Institutions provide an annual report to Parliament that details:

 . . . the success of pension plans in meeting the funding requirements . . . and the corrective measures taken or directed to be taken to deal with any pension plans that are not meeting the funding requirements.

All three of these are critical changes that will help secure the deferred income of employees who participate in private defined benefit plans.

Before going further, I would like to take a moment to correct the record from my second reading speech. During the questions that followed my speech, Senator Dalphond asked whether the Pension Benefits Standards Act applies only to federal pension funds, or if it also applies to those that are regulated by the provinces. I mistakenly said that it did apply to provincial pension plans, but it does not — not entirely. I’ll explain.

Bill C-228 amends three separate statutes. One of these is the Pension Benefits Standards Act, 1985. This legislation only impacts federally regulated pension plans. Bill C-228’s amendment to the Pension Benefits Standards Act simply creates the requirement for a detailed annual report on federally regulated plans. It does not create any requirement for reports on provincially regulated plans and, thus, does not encroach on provincial jurisdiction. I believe this was Senator Dalphond’s concern, and he is correct.

The other two acts being amended by Bill C-228 are the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act. Both of these acts are national in scope and impact the bankruptcy and insolvency proceedings of all corporations in Canada, whether federally or provincially incorporated. That is what I was referring to when I answered his question.

While the amendments to the Pension Benefits Standards Act, or PBSA, create the reporting requirement, everything else in Bill C-228, including establishing a new order of priority — which is the key element to this bill — is created by amendments to the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act.

Colleagues, pensioners’ groups have been calling for this legislation for a long time, and they appeared at committee to give us their wholehearted endorsement. They noted that Bill C-228 will finally provide a much-needed increase in protection for millions of Canadian seniors and their families who rely on defined benefit pensions for their financial security in retirement.

As I noted earlier, Bill C-228 does this by placing the interests of people before banks. Currently, if a company with a defined benefit plan becomes insolvent or declares bankruptcy, as we’ve seen in Canada’s recent history, pension plan holders have no seat at the table. When it comes to collecting what is owed to them, they fall to the end of the line with all of the other unsecured creditors. Bill C-228 addresses this by moving them up to what has been termed “super-priority status.” This is the status already given to outstanding salaries and allowances owed to employees, along with any employee or employer contributions to a registered pension plan. This legislation now puts pension benefits in the same category. And since pension benefits are deferred income, this change makes perfect sense.

However, colleagues, I want to point out that this does not guarantee that pension plan benefits will always be paid in full in the event of insolvency or bankruptcy. There could be cases where in spite of pensioners’ having super-priority, the assets of the bankrupt company are still not sufficient to cover all of the super-priority claims. However, what the bill does do is push pensioners to the front of the line instead of leaving them at the back.

Furthermore, by creating an annual reporting requirement, the amendments brought by Bill C-228 will result in greater accountability and transparency, which will help ensure that the pension plans are fully monitored and funded.

These simple objectives explain why Bill C-228 received unanimous support in the other place. All 318 members of Parliament present for the third-reading vote on November 23 voted in favour of the bill, including the Prime Minister; the Minister of Finance; the Minister of Innovation, Science and Industry; the Minister of Justice; and 31 other ministers. With that kind of support behind a private member’s bill, it is difficult for anyone to muster a case against it. But some still tried.

A number of associations, including pension managers along with financial and business interests, expressed their concerns about the bill, and the committee considered them carefully. Since you may have heard these concerns but did not have the opportunity to be part of the committee hearings, I’d like to take a few moments to address the main ones.

The first concern, which was heard repeatedly by the committee, was that Bill C-228 will actually hurt pensioners if it passes because it will cause employers to discontinue their defined benefit plans and leave them with inferior defined contribution plans.

Colleagues, let me say, first of all, that even if this claim were true, a secure defined contribution pension plan is more valuable than an unsecured defined benefit plan. Pension benefits that can be cut by 10%, 20%, 30% or even 50% in the event of bankruptcy do not provide much security. If this is the biggest threat that opponents of Bill C-228 can come up with, it doesn’t carry much weight with pensioners.

But as it turns out, this threat is easily dismissed. As pointed out by numerous witnesses, private defined benefit pension plans have already been in decline for more than 20 years. In the year 2000, 21.3% of private sector pension plans were defined benefit plans. By 2020, that number had dropped to 9.6%. And it’s even lower now, colleagues.

The reasons for this decline in defined benefit plans have not been fully documented, but one contributing factor, which was pointed out at committee, is that single-employer defined benefit plans no longer entice employees like they used to. To maximize your benefits from single-employer defined benefit plans, you need to work for the same employer for 25 or 30 years. The problem is that most people no longer see that as a probable career path. Single-employer defined benefit plans have been fading out of use for decades. It is an empty threat to suggest that Bill C-228 is going to somehow create what is already happening and has been happening for a generation.

But, colleagues, in addition to this, there are at least three other reasons why Bill C-228 is not a threat to existing defined benefit plans and the pensions of the more than 1.2 million Canadians who continue to participate in them. First of all, in the event that Bill C-228 did spook an employer to terminate their defined benefit plan, many of these plans are subject to collective bargaining. As noted by one witness, these companies are unlikely to be able to terminate their plan without finding agreement at the bargaining table.

Secondly, even if they are successful at negotiating the termination of a defined benefit pension plan, that plan cannot be wound up until it is fully funded. This means that every employee who is currently drawing a pension under that fund or has accumulated future pension benefits would be protected. Under the existing law, if you wrap up a defined benefit pension plan, the company must fully fund any shortfall within five years.

Thirdly, if an employer has any concerns about the impact of Bill C-228 but wants to offer a single-employer defined benefit plan to their employees, they still have the option of participating in a multi-employer pension plan. These plans are going strong and seeing significant growth in numbers, in part because they offer employees the ability to have one pension plan even if they change jobs among participating employers.

In addition, because their pension funds are pooled across multiple employers, a member’s pension is not impacted if their employer goes into bankruptcy. Their plan remains intact because it is part of a much larger fund that is not just dependent on one employer. In fact, one of the witnesses who appeared at committee was from the CAAT Pension Plan, which expressed its concern that employers might mistakenly think their multi-employer pension plan would be subject to Bill C-228.

However, CAAT acknowledged in its brief that this perception would be inaccurate. They noted that:

Across Canada there are multiemployer pension plan types . . . where the employer, by legislation, does not have any obligation to fund amounts beyond their monthly contributions.

They went on to say:

We recognize that the Bankruptcy and Insolvency Act cannot create a debt where one doesn’t exist and thus shared-risk multiemployer plans are likely not covered by Bill C-228.

In this they are correct. Bill C-228 does not create liabilities in the event of insolvency or bankruptcy. It merely ensures that where liabilities exist, those belonging to employee pension plans get their proper priority, along with any wages and salaries that are owed.

The committee’s report to the Senate on Bill C-228 contained an observation noting this fact that multi-employer pension plans:

. . . fall outside the scope of the bill and that only employers who are legally responsible to backstop a pension plan fund are liable to provide due payment to their employees upon bankruptcy.

That was a clarification, colleagues, that we decided to put in the observations.

Another concern that the committee heard about with Bill C-228 was that giving super-priority status to employees’ pension plans would carry a high risk of hampering the company’s access to credit. This, colleagues, is a curious objection to the bill. At its core, it is arguing that it is the employees who should carry the risk associated with their pension plans, not the employers. It is arguing that if you make employers carry the responsibility to follow through on the commitment they make to their employees, that this is unfair to employers and will somehow threaten the viability of their business.

Not only is this a strange position to take, but it should be noted that, first of all, if a company can demonstrate that their defined benefit plan is fully funded, as it should be, then there would be no such risk.

Secondly, Bill C-228 is going to give employers four years to make sure their plans are solvent and will incentivize them to keep them solvent. And if a company cannot get their plans to a position of solvency within four years, then they obviously are a higher risk, so perhaps they should be paying higher interest rates.

To suggest that the law should not protect employees’ pension plans just so employers can have access to cheaper credit is astonishingly self-serving. It suggests that it is the employees who should carry the business risk. The committee did not buy this argument.

The committee was also presented with the concern that in the event of insolvency, Bill C-228 could prevent a company from restructuring or allow a buyer to purchase the business and assume the liabilities of the pension plan in order to keep it whole. The implication is that the act of moving pension plan liabilities to super-priority status will somehow remove options for restructuring that would otherwise be present.

That is incorrect. What Bill C-228 will do in the event of insolvency is ensure that pensioners have a seat at the table in that restructuring process. As noted by the Canadian Labour Congress:

Without super-priority status for the pension plan deficit, pensioners and plan members are put in a very difficult and unfair situation. In order to avoid a windup of their pension plan — and truly catastrophic cuts to pensions and benefits in a liquidation, plan members are pressured to “voluntarily” agree to draconian cuts to pensions and benefits in CCAA proceedings. Typically, workers and plan members are pressured early in the proceedings to agree to massive cuts, with the threat of even more devastating cuts if they resist.

Since they currently have no protections in the event of bankruptcy and liquidation, they are threatened with losing everything, unless they agree to deep pension and benefit reductions . . . .

Colleagues, Bill C-228 does not increase the risk for pensioners; it decreases it. In the event of restructuring, it gives them a loud voice and a much stronger bargaining position instead of punting them to the back of the line. Bill C-228 is much needed and long overdue. On behalf of workers across our nation, I’m asking that we pass this legislation expeditiously and give workers the protection they deserve. Thank you.