1. Opening Remarks

Senate Standing Committee on Legal and Constitutional Affairs

Bill C-19 - Budget Implementation Act, 2022, No. 1

Committee Pre-Study

Opening Remarks – 7 minutes

Good afternoon, Honourable Senators. I am joining you today from my office in Ottawa, on the traditional territory of the Algonquin people. Thank you for inviting me to speak to you about three important Divisions in Bill C-19 that impact the justice system or relate to the recent constitutional amendment for Saskatchewan.

Before turning to these Divisions, I would like to highlight that Budget 2022 is focused on growing our economy, creating good jobs, and building a Canada where nobody is left behind. We cannot achieve these objectives without strong, resilient and independent courts that Canadians trust to resolve their disputes and safeguard their rights. We also cannot achieve these objectives without continuing to combat racism and discrimination, so that each one of us knows that we belong, that we are safe, and that we are able to move forward together. I am confident that Budget 2022 offers a responsible and considered plan, and am honoured to stand in support of it and its implementation.

Division 21 – Anti-Semitism

First, let me begin with Division 21 of Part 5 of the BIA. Antisemitism has a long history in Canada. Jewish Canadians have suffered discrimination and unfair treatment in many aspects of life and have been, and continue to be, subjected to harmful sinister stereotypes. There has been an alarming increase in incidents of antisemitism and Holocaust denial in Canada and around the world.

To that end, the Criminal Code would be amended to create a new offence of wilfully promoting antisemitism, by condoning, denying or downplaying the Holocaust, through statements communicated other than in private conversation. The offence would carry a maximum penalty of two years imprisonment and would be subject to the same defences and related requirements as the existing hate propaganda offences, such as the consent by the appropriate Attorney General for a prosecution to proceed.

The existing hate propaganda offences in the Criminal Code may not capture incidents of antisemitism and Holocaust denial. For example, expressions that trivialize or minimize the Holocaust but which may still amount to Holocaust denial, may escape prosecution.

Recognizing the worrisome trend of antisemitism, in January 2022, the United Nations General Assembly unanimously adopted a resolution condemning Holocaust denial. The General Assembly urged all UN Member States to condemn Holocaust denial, in line with earlier UN resolutions of 2005 and 2007. A number of countries, such as Belgium, France, Austria and Germany, have already made Holocaust denial a crime.

To date, Canada has taken a number of steps to combat antisemitism. In 2021, the Honourable Irwin Cotler was re-appointed Canada’s Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism, which was welcomed by leaders of the Canadian Jewish community, who had long advocated for a permanent special envoy. He leads the Government’s delegation to the International Holocaust Remembrance Alliance and works with other member countries, along with both domestic and international partners, to strengthen and promote Holocaust education, remembrance, and research in Canada and around the world.

Budget 2022 also proposes to provide $20 million to support the construction of the new Holocaust Museum in Montreal, as well as $2.5 million in funding for the Sarah and Chaim Neuberger Holocaust Education Centre in Toronto. These initiatives, along with any potential amendments to the Criminal Code, would be key to fighting antisemitism.

Division 22 – Judges

Division 22 has the overriding goal of strengthening our courts by upholding judicial independence and providing the judicial resources courts need to serve Canadians. The amendments proposed in this Division fall under two main categories. The first category of amendments would implement the Response of the Government to the Report of the 2020 Judicial Compensation and Benefits Commission. The Commission was established under section 26 of the Judges Act to inquire into the adequacy of judicial compensation, consistent with the requirement established by the Supreme Court of Canada in the PEI Judges Reference.

The Commission provided its report to the Government on August 30, 2021. On December 29, 2021, the Government issued its response, accepting all of the Commission’s recommendations. The proposed amendments would implement these recommendations by providing for: the continuation of judicial salaries in accordance with annual statutory indexation; an increase to the incidental allowance and the representational allowance; and the creation of a new medical assistance allowance for judges in receipt of the allowance for northern judges. Enacting these amendments would demonstrate respect, by the Executive and Legislative branches, of the independence of the judiciary and of the fundamental constitutional principles at play in setting judicial compensation. This in turn builds public confidence in the courts and in the rule of law.

The second category of amendments would allow superior courts to respond to existing and projected workload pressures by creating 24 new judicial positions across nine different courts from coast to coast to coast. As the Budget indicates, the common theme in these investments is access to justice. The Government recognizes that investing in our judicial resources will help the justice system emerge from the challenges and disruptions of the past two years. And I am confident that these investment will not only assist courts in the near term, but serve Canadians long into the future by enabling even more exceptional jurists to come forward and serve on the bench.

On that point, I note that since November 2015, the Government has appointed more than 525 superior court judges. These exceptional jurists represent the diversity that strengthens Canada. Of these judges, more than half are women, and appointments reflect an increased representation of visible minorities, Indigenous, LGBTQ2+, and those who self-identify as having a disability. I assure you that I continue to work diligently to fill existing judicial vacancies with exceptional candidates. I am fully seized of the need to fill existing vacancies, and I am looking forward to announcing further appointments in the near future.

Finally, Division 22 proposes the creation of the office of prothonotary of the Tax Court of Canada and the office of supernumerary prothonotary in relation to both Federal Court and Tax Court prothonotaries. Prothonotaries are judicial officers who are compensated at a lower rate than judges. The use of prothonotaries at the Tax Court of Canada will free judges to focus on complex matters, while prothonotaries specialize in addressing less complex cases and performing other functions that enhance court efficiency. This is a cost-effective way to enhance access to justice to the public. The creation of the office of supernumerary prothonotary will allow prothonotaries who meet the eligibility criteria to elect supernumerary status and a reduced workload for up to five years. This will allow experienced prothonotaries to continue to contribute to the work of their court.

Division 1, Part 5 – Provisions relating to the CPR tax exemption

Honourable Senators will recall this Committee’s recent study of the resolution to amend the Constitution of Canada and repeal section 24 of the Saskatchewan Act, retroactive to 1966. The constitutional amendment was made by proclamation of the Governor General on May 6, 2022, as authorized by the Senate, the House of Commons, and the Legislative Assembly of Saskatchewan, and is an excellent example of cooperative federalism. The statutory amendment proposed in Division 1, Part 5 of Bill C-19 is consequential to that amendment, and would eliminate the Canadian Pacific Railway’s purported tax exemption under clause 16 of the 1880 agreement between Canada and the CPR, annexed to An Act respecting the Canadian Pacific Railway enacted by Parliament in 1881, and to extinguish any potential federal liability that might arise, directly or indirectly, from the elimination of the purported tax exemption. This measure is expected to enhance the fairness and integrity of Canada’s tax system, and will put an end to an exemption that is no longer appropriate.

Honourable Senators, I end by reaffirming the Government’s commitment to enhancing public confidence in the justice system and our constitutional and statutory framework. I believe the amendments proposed by Part 5, Divisions 1, 21 and 22 will help us achieve this goal. I would be happy to respond to any questions you may have.