JUST Committee Meeting

     Good afternoon, everyone.

     I call the meeting to order.

    Welcome to the meeting.

    It's meeting number 123 of the Standing Committee on Justice and Human Rights.

    Pursuant to the order adopted by the House on November 19, 2024, the committee is meeting in public to begin its study of Bill S-13, an act to amend the Interpretation Act and to make related amendments to other acts.

     I have a few housekeeping rules. I remind members and witnesses to wait until they're recognized before they speak. All questions and responses are to go through the chair.

    I want to welcome the Minister of Justice and Attorney General of Canada, Arif Virani.

    With him is Laurie Sargent, assistant deputy minister, indigenous rights and relations portfolio.

    Chair, I have no interpretation. I thought it was just my device, but I checked again. I'm currently on English.

    Okay, let's wait a moment and get that rectified.

    Thank you.

     Is it you too, James?

    Yes.

     Is it English or French?

    When you were speaking French, it wasn't being translated.

    Okay.

    Do you have interpretation when I speak English, Monsieur Fortin?

    Yes, but I'm counting on you to speak French. It may be a good thing that my colleague Mr. Brock doesn't have access to interpretation.

    Voices: Oh, oh! (laughter)

    I think he can hear you now.

    I think you hear him now, because you smiled.

     I did.

    I think the interpretation is working now.

    It looks like it. In that case, I'll pick up where we left off.

    I would like to welcome anew the Minister of Justice and Attorney General of Canada, Arif Virani. With him is Ms. Laurie Sargent, assistant deputy minister, indigenous rights and relations portfolio.

     From the Aboriginal Law Centre, we have Ms. Uzma Ihsanullah, director general and senior general counsel.

    I believe those are the three I see here, so that's great.

    Minister, without any more delay, the floor is yours. You have up to five minutes.

    Oh, I'm told it's 10 minutes. I don't want to shortchange you.

    Thank you.

     Thank you, Madam Chair.

     Good afternoon, everyone. I'm pleased to be back here at the justice committee to speak about Bill S-13, an act to amend the Interpretation Act and to make related amendments to other acts.

    Bill S-13 is a long time coming, colleagues. Indigenous peoples have been the driving force behind this bill for decades. I want to acknowledge that, in the room behind me, we have members of ITK. They were some of the principal movers of the bill, among others. I want to acknowledge their hard work, advocacy and dedication in advancing this important legislation. I also want to thank all members of the House for putting aside the gridlock to allow this important piece of legislation to pass.

    Many first nations, Inuit and Métis have long called for a section 35-related non-derogation clause to be added to the federal Interpretation Act. This clause would be standardized and signify the importance of upholding “aboriginal and treaty rights” in Canadian law, as affirmed in section 35 of the Constitution Act, 1982. It would apply to all federal laws.

     As part of the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, released on June 21, 2023, indigenous peoples have determined that the proposed adoption of a non-derogation clause is an ongoing priority.

    Passage of this bill would mark the successful implementation of some of the measures outlined in the Action Plan's chapter entitled “Shared Priorities”. Consultations were held with several indigenous partners. They worked with us to move this bill forward. Indigenous peoples and organizations that represent them participated in more than 70 meetings and filed more than 45 submissions on the non-derogation clause legislative initiative.

    I'm extremely grateful to all those who shared their perspectives and technical expertise.

     This brings us now to the substance of this bill. Bill S-13's purpose is to add a section 35-related non-derogation clause to the federal Interpretation Act and to repeal most currently existing section 35-related non-derogation clauses found in other statutes. In this context, a non-derogation clause is a clause that states laws should be interpreted to uphold, and not diminish, the aboriginal and treaty rights affirmed in section 35 of the Constitution Act, 1982.

    Section 35 rights are of fundamental importance to indigenous peoples. These rights are constitutionally protected from infringement by government action, including through legislation, unless infringement is justifiable in accordance with the rigorous test set out by the Supreme Court in Sparrow.

    At its core, section 35 serves to recognize indigenous peoples’ pre-existing rights and systems of governance, as well as to recognize the rights from treaties that have been concluded between Canada and indigenous peoples over past centuries. A section 35-related non-derogation clause aims to affirm and uphold this constitutional protection, highlighting the importance of applying federal legislation in a way that avoids infringing on these rights.

     Bill S‑13 would ensure that all federal statutes are interpreted in a manner consistent with section 35 of the Constitution. It would therefore no longer be necessary, in the future, to add a non-derogation clause to each federal act. As such, Bill S‑13 would also remove the onus on indigenous peoples to advocate for a non-derogation clause to be added to each new bill that they believe could infringe on section 35 rights.

     The rights of indigenous peoples should be respected by default. It shouldn't be necessary to repeat this in every act, regulation and order in council. The bill makes that possible. It also contributes to the government's reconciliation efforts with indigenous peoples. In addition, the bill promotes the consistency of federal legislation with respect to non-derogation clauses. Over the past 40 years, an ad hoc approach, combined with the changing legal landscape and legislative drafting practices, has led to non-derogation provisions that differ from one another.

    Currently, there are several federal statutes that contain non-derogation clauses, with inconsistent wording. In order to ensure the clarity and consistency of laws, this bill proposes that almost all non-derogation clauses in existing laws would be repealed. The only exceptions would be a small number of laws where indigenous peoples who are directly impacted by specific legislation have indicated that it is important to retain the non-derogation clause in question.

    I would underscore that the bill also builds on the important work done by the Standing Senate Committee on Legal and Constitutional Affairs, culminating in its 2007 report entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights”. Many indigenous leaders and experts participated in the Senate committee hearings leading to the 2007 report. Indigenous peoples continued to advocate for a non-derogation clause after the release of the Senate report back in 2007.

    In response to this ongoing advocacy and leadership, my department launched the consultation and co-operation process that led to the bill that is before all of you today. This started with preliminary conversations with key indigenous partners who had been involved with the Senate report. Then, in December 2020, letters were sent to nearly 60 indigenous rights holders and representative organizations, inviting them to meet with Justice officials or to provide written submissions, which occurred over the following year.

     From December 2021 to May 2023, a significantly expanded group of indigenous partners had the opportunity to provide feedback on the initiative. This new consultation and collaboration process took place in two additional phases. The first began in December 2021, when the previous Minister of Justice announced an expanded consultation and collaboration process, consistent with the requirements of the United Nations Declaration on the Rights of Indigenous Peoples Act. Starting in February 2022, additional meetings were held with indigenous partners and several provided written responses to explore options for amending the Interpretation Act to include a non-derogation clause.

     From March 1, 2023, to April 14 of the same year, the final phase of the consultation and co-operation process involved posting a draft legislative proposal on the Justice Canada website. This method enabled indigenous partners to review and comment on the draft legislative proposal. The draft legislative proposal was used to inform the language of Bill S-13, which remained identical.

    Throughout the process, indigenous partners were broadly supportive of the non-derogation clause amendment, although there were differing views regarding the specific wording of the clause. Some preferred the expression “indigenous peoples”, while others preferred the expression “aboriginal and treaty rights” as it more closely reflects section 35 of the Constitution Act, 1982. The proposed language in this bill uses both of these expressions to reflect a compromise between the language options.

    The fate of the non-derogation clauses found in existing laws was also the subject of sustained discussions with indigenous partners. Many indigenous partners argued that non-derogation provisions should remain in laws that directly impact indigenous peoples, if that is the wish of the affected peoples.

     The amendments proposed in the bill reflect what we heard from indigenous peoples during the consultation and collaboration process. Those exchanges enriched and clarified the wording of the non-derogation clause.

    The bill and the process that brought us here are other examples of what can be accomplished when we work together. The bill marks an important step in respecting the rights of Canada's indigenous peoples.

    As a federal government, we are very proud to be able to move forward with Bill S-13 as a further demonstration of our commitment to reconciliation and the recognition and implementation of indigenous rights.

    As parliamentarians, I think we can all be proud of the work we're doing together to ensure that all federal laws are interpreted in a way that upholds section 35 of the Constitution. This initiative will contribute to promoting, protecting and affirming indigenous rights at the federal level and bring greater coherence and consistency to the interpretation of all federal laws.

    At the same time, I would emphasize that it is indigenous peoples who laid the foundation for this bill by maintaining their resolve to see this initiative come to fruition. In that way, Bill S-13 demonstrates the important lessons of working in partnership and collaboration with first nations, Inuit and Métis in order to build stronger nation-to-nation, Inuit-Crown and government-to-government relationships.

     Thank you very much, Madam Chair.

     Thank you, Minister.

    We will begin with our first round. Just for the committee members, it's been a while since we've undertaken a study. When there are 30 seconds left, I'll raise this sign, and when the time is up, I'll indicate that your time is up.

    You have six minutes each.

    We will start with Mr. Brock, please.

     Minister, last Friday night, as Canada's second-largest city burned and was under siege—

    I have a point of order.

    Yes, Mr. Bittle, go ahead.

     On the issue of relevancy, I know that Mr. Brock was outraged—

    Why don't you let me ask the question?

     Mr. Brock was outraged last week when we were here. He filibustered for an hour when there was a suggestion that we may ask questions of Mr. Viersen unrelated to the topic at hand.

    This is unrelated to Bill S-13—

    It's not a point of order.

     Relevancy is within the standing orders. This is within the standing orders. Mr. Brock can keep his questions to the legislation. I know that he insisted that we do the same thing two weeks ago.

    Mr. Brock of two weeks ago would have been very upset at Mr. Brock today—

    You're incredible, Bittle.

    —so I'm hoping he can keep his remarks focused, pursuant to the standing orders.

    Thank you for that, Mr. Bittle.

    Relevancy is definitely within the standing orders, but I don't think that Mr. Brock has even had a chance to start.

    Of course not. This is Bittle's game plan.

    I'm going to start you back at six minutes, Mr. Brock.

    Thank you. I appreciate that, Chair.

     We'll let you continue. I know you've been here as long as I have been here, and you're very well versed.

    It's the member's time.

    Please proceed.

    Thank you.

     Minister, last Friday night, as Canada's second-largest city burned and was under siege by pro-Hamas terrorists rioting in the streets, damaging property and inciting their vile messaging of the extermination of the Jewish state, all the while, your leader, Justin Trudeau, danced away at a Taylor Swift concert and shared friendship bracelets with other fans. You, as Canada's chief legal officer, remained silent.

    Why, sir, did you display a lack of leadership and courage in calling out this extreme anti-Semitic hate and violence?

    I reject that categorization, and I also reject what happened on Friday night in terms of its appropriateness. What happened on Friday night was a disgusting and appalling act of lawlessness, unlawful behaviour by people who would seek to stoke havoc and chaos in our streets.

    I referenced that—

    Minister, we would have appreciated your calling that out at the time, but you remained silent.

    Could I finish, Madam Chair?

    Yes.

    I referenced that in my response in the House of Commons today—

    I'm sorry, Minister, but this is my time.

    I'll move on to my second question.

    A few weeks ago, on November 11, during a bail compliance check, Toronto police officers—

    We have a point of order.

    Go ahead, Mr. Bittle.

     I think the time was given to Mr. Brock to bring it back to Bill S-13. He has not done that, and now he has moved to another question unrelated to the topic. I know indigenous rights are very important to him, and he should move back to that topic.

    Mr. Brock was insistent last week that Liberals stick to the topic. I'm curious why Conservatives don't hold themselves to the same standard.

     Relevancy is very much at the base of the issue.

     I'm going to go back to Mr. Brock now. We will start the clock again.

    Mr. Brock, just be careful.

    I'll get to relevancy. Thank you.

    Please go ahead.

     We support Bill S-13.

    A few weeks ago, on November 11, during a bail compliance check, Toronto police officers found themselves—

     I have a point of order.

    Madam Chair, this is becoming ridiculous.

    This is a pattern that Mr. Bittle continually does at these committee meetings.

     I have a point of order.

     Go ahead, Mr. Bittle.

    The pattern is with regard to relevancy.

    This is legislation. Mr. Brock acknowledged that our standing orders—

    Let me ask the question, Bittle.

    It's “Mr. Bittle”, Mr. Brock. We show each other respect in this room.

    Again, he insisted last week that we stick to the topic at hand. He isn't doing what he insisted that we do last week. I hope that Mr. Brock will comport himself in the same way that Mr. Brock of a week ago insisted we should comport ourselves.

    Mr. Brock, I'll ask you to proceed.

    Toronto police officers found themselves in the middle of an active shootout between rival groups. Sixteen firearms were seized, all stolen and smuggled from the U.S. Twenty-three people, including a young offender with three firearm prohibitions, were arrested. In response, the Toronto Police Association, the Police Association of Ontario, and the Ontario Provincial Police Association, representing 35,000 officers across the province, were calling on the federal government for immediate bail reform. Their calls to action included tough-on-crime measures that ensure repeat violent offenders are kept in custody, imposing stricter penalties for bail violations, and shifting resources away from ineffective gun bans—

    I have a point of order.

     —to focus on combatting illegal firearms smuggling. This isn't the first time—

    I have a point of order.

    Go ahead, Mr. Maloney.

     Mr. Brock is entitled to his time. I have two points. One, he understands the importance of being allowed to ask his questions, a point he's made now more than once. It's also important that he allow the minister the opportunity to answer the question, which he didn't do on his first question.

    He's asked two questions now that have absolutely nothing to do with the topic we're here to discuss. I think it is incumbent upon you, Madam Chair, to get Mr. Brock to stay within the realm of relevance. I know that Mr. Brock thinks relevance is subjective, but it's not. It's objective, and it's for you to determine whether his questions are appropriate or not. Both of these questions are inappropriate and far outside the scope of what we're here for today.

    It would be very helpful if Mr. Maloney allowed me to actually ask the question, which he interrupted halfway through.

    Mr. Brock, you have three minutes.

    We've stopped the clock, by the way, each and every time a point of order was raised.

    By my count, I still have four minutes.

     No. You have three minutes and 29 seconds. We've stopped it every time.

    I'm going to suspend for a minute.

     We will continue, Mr. Brock.

    I will ask you to please make a link to Bill S-13, the bill that we are studying.

    The clock will start now.

     I intend on doing that with the six minutes that I have available. Has the time started?

    Yes.

    This isn't the first time the TPA has raised alarms, Minister.

    In the House today, you proudly stated that you delivered bail reform. The premiers of the provinces and territories and the presidents of police associations across this country unanimously claim that Bill C-48 is an abject failure.

    Instead of blaming provincially appointed judges and justices of the peace, when will you finally toughen up our bail regime to keep our communities safe?

     I'm going to allow the minister to respond to that.

    If you wish, bring it back to what we're studying.

     I object to that categorization.

    I'll refer the member to three points. The first is that the work of the Toronto Police Service is heroic. I applaud their courage.

    The second point I would make is that there are 700 fewer police officers in Toronto now than there were in 2015, when we first got elected, which is a problem for the municipality and a problem for the province.

    The third point I would make is that the same TPS letter actually referred to the penalties for things like gun smuggling and gun trafficking. In preparing for this appearance, I actually noted that in Bill—

    Mr. Larry Brock: Thank you, Minister. We know that—

    Hon. Arif Virani: If I could finish—

    No, thank you, Minister. This is my time.

    I have a point of order, Madam Chair.

    If he's allowed to ask the question, the minister is allowed to answer.

     This is my time, Madam Chair.

    He's answered the question. He said he had three points. I gave him the opportunity to raise those three points.

    This is the member's time. I'm reclaiming my time.

    He didn't finish.

    Please, go ahead.

     The TPS called for enhanced penalties for gun smuggling and gun trafficking. We enacted those penalties and enhancements in Bill C-21, which that member voted against—

     Thank you, Minister. This is my time.

    We know that indigenous people are more likely to be victims of crime. This has been reiterated in numerous government studies, such as the MMIWG and the TRC. The statistics don't seem to have changed much since these reports were made public. In 2022, StatsCan reported that nearly two-thirds, or 62%, of indigenous people have experienced at least one sexual or physical assault after the age of 15.

    Will you, Minister, commit to reinforcing the Canadian Victims Bill of Rights to better protect indigenous victims of crime and uphold the United Nations Declaration on the Rights of Indigenous Peoples Act?

    I absolutely commit to ensuring that people are protected from things like sexual assault, including indigenous people. I applaud the member opposite for noting that indigenous people are overrepresented, both as accused and—

    Will you reinforce the Canadian Victims Bill of Rights?

    Madam Chair, could I finish my response, please?

    Yes, go ahead, Minister.

    I applaud the note and the recognition that indigenous people are overrepresented in our system, both as accused and as victims.

    Will you reinforce the Victims Bill of Rights, Minister?

    It's a simple question. Yes or no?

    We conducted a study of a review of the Canadian Victims Bill of Rights—

    The answer is no. Thank you.

     Would the minister consider a similar approach to victims' rights—

    Madam Chair, I have a point of order.

    We have 30 seconds left.

    I would like to finish my response, Madam Chair.

    I hear a number of points of order.

     Madam Chair, could I raise an issue, please?

    Generally, when we pose a question—

    He can't make a point of order on his own time, Madam Chair.

    Actually, I was at another committee and they made that very clear. It's true.

    Madam Chair, generally you afford a witness the same amount of time it takes for the question to be put. That is not being done here.

     That's not being done here. That's my fault. You're taking a lot more time to ask the question and you're not allowing the minister the time to respond.

    The reason I'm taking a lot more time to ask the question is that the Liberal members are constantly interrupting. I constantly have to go back to the original question and repeat myself. That's what's happening here.

     I can do it in 10 seconds, Madam Chair.

    Listen, we had stopped the clock. I'm not going to keep stopping the clock.

    Can we please continue with that now?

    I'm moving on to another question.

    Before you do.... Minister, have you responded to that last question?

     Madam Chair, we put reverse onus for bail for intimate partner violence, which assists indigenous women. That was Bill C-75 and Bill C-48.

    The answer is no.

    Would the minister consider a similar approach to victims' rights as is being proposed in this bill? Specifically, will the minister reinforce the primacy clause in the Canadian Victims Bill of Rights to ensure that the rights of victims are considered, upheld and supported by courts and other criminal justice professionals in every interaction with the criminal justice system, yes or no?

     Mr. Brock, your time is up, but I am going to allow equal time as that last question for the minister to respond. It was about 23 seconds.

    My team is reviewing the review of the Canadian Victims Bill of Rights that happened at this committee, I believe, two years ago. A lot of healthy proposals were suggested at that point.

    We are always looking to ensure that victims' voices are empowered and that their rights are given primacy in our system.

    Thank you, Minister. That didn't take that long. We appreciate that.

     Mrs. Brière now has the floor for six minutes.

    Thank you, Madam Chair.

    Mr. Minister, welcome to the Standing Committee on Justice and Human Rights. Thank you for giving us this hour.

    I'm going to ask questions about Bill S‑13.

    Why was the non-derogation clause previously used on an ad hoc basis?

    Do you mean on an ad hoc basis?

     Yes.

    Do you mean one act at a time?

    Yes.

     First of all, with respect to my first response to Mr. Brock, I'd like to say that I take the demonstration of anti-Semitism in Montreal very seriously. I've spoken in the House and I'll say it again today: What we saw in Montreal is absolutely unacceptable.

    With respect to your question, I would point out that, over the past 40 years, one law at a time, we had to find a compromise regarding the language used to show that we weren't going to derogate from the indigenous rights protected by the Canadian Constitution. What changes with Bill S‑13 is that we are proposing an amendment to the Interpretation Act that will have a broader application and affect any bill and any statute adopted by the federal government.

    That will help us in terms of the effectiveness and consistency of the language we use, because we have observed an inconsistency in that regard over the past 40 years. The language used in a bill 15 years ago is not the same as the language used, for example, 15 months ago.

     Thank you.

    Bill S-13 covers 26 existing statutes. But three of them won't be affected by the bill. Why are those three acts not affected? Why is the Indian Oil and Gas Act left out?

     What are you saying we're not talking about?

     We're not talking about the Indian Oil and Gas Act. My question is twofold. Why are we not targeting those three acts and, in particular, the Indian Oil and Gas Act?

     I'll let Laurie Sargent answer your last question.

    With respect to your first question, we did a lot of consultations for more than two years with indigenous communities, among rights holders. The overriding principle we followed was that nothing should be decided for indigenous people without their participation.

    We listened to the rights holders.

     In their particular situation, they always wanted to safeguard their own non-derogation clause because it affects their rights, their treaties as such. We decided to maintain their own non-derogation clause. For the most part, they decided that the new comprehensive provision was much better, but in three very specific cases, the decision was made to keep the existing provisions.

    I'd ask Laurie to answer the second question.

     Thank you for the question.

    The Indian Oil and Gas Act is a fairly old act. Of course, the non-derogation clause is different from the one we're amending. There is a whole history to this legislation. Because the provision isn't equivalent and recognizes different rights from section 35 of the Constitution, we decided that it should be set aside for the time being. Obviously, this act could be reviewed in the future. In any event, the provision that will be in force, if Bill S-13 is passed, will be used to interpret that legislation in the future.

     Mr. Minister, you said in your speech that this was an important step towards reconciliation and that we were obviously working to respect the rights of indigenous peoples. Can you tell us a little bit more about that?

    For example, the bill affects one aspect of the United Nations Declaration on the Rights of Indigenous Peoples Act. We've also put in place an action plan that deals with this bill and that requires us to move forward with this provision. So this affects one of our task lists.

    Since this motion was unanimously adopted in the House last week, it shows very clearly that, for all parties, it's important to always ensure that we don't derogate from laws that protect indigenous rights, whether it's constitutional legislation or treaty legislation, some of which was passed 200 years ago. So it's symbolic, but it also affects the interpretation of the laws. When a court looks at a situation, if there's an interpretation that says indigenous rights will be abrogated and another interpretation that always preserves those rights, the court will always choose that interpretation. We'll interpret our own laws in light of that latter interpretation, which protects those rights.

     It's extremely important for all the indigenous peoples we consulted, whether it be first nations, Inuit or Métis, to pass this amendment and advance reconciliation.

     Thank you very much, Mrs. Brière.

    Mr. Fortin, you now have the floor for six minutes.

    Thank you, Madam Chair.

    Good afternoon, Mr. Minister. Welcome to our committee.

    I read Bill S‑13. If I were to summarize it in a few sentences, I'd say that its purpose is to ensure that existing laws respect the indigenous rights and treaties that are included, recognized and affirmed in section 35 of the Constitution Act, 1982. How will Bill S‑13 affect what is already in section 35 of the Constitution?

     That's a good question. It removes the burden on indigenous peoples. Every time we decide to introduce a bill, we have to emphasize that a non-derogation clause must be included. This bill removes that burden.

    It also gives force to the Constitution, since this provision will apply in every interpretation of our laws, especially in the case of a judicial review or a dispute where the judge must assess a bill. The purpose of this bill is to properly guide the choice of interpretation that protects indigenous rights.

     Mr. Minister, if I had to plead for respect for the rights of indigenous communities, it seems to me that I would start with the Constitution. Correct me if I'm wrong, but in my opinion, the best protection is to enshrine a right in the Constitution. It becomes a right that takes precedence over any other right or statutory provision. So I have trouble imagining what this amendment to the Interpretation Act will add to the protection that the Constitution Act, 1982 already provides.

    That's a good question, Mr. Fortin, but I'd like to point out two things.

    First of all, you're absolutely right that the Constitution is paramount, regardless of democracy.

    Second, there are aspects directly related to the act, such as those protected by section 35 of the Constitution. In my opening remarks, I mentioned the Sparrow decision, which talks about whether or not a waiver can be justified; it's a very specific context. The bill tells any judge in any part of the country that when they are responsible for interpreting a federal law, they must always choose the interpretation that protects the indigenous rights referred to in section 35.

    That's not the case right now. Over the past 40 years, a non-derogation clause had to be put in place one law at a time. That burden had to be eliminated and judges had to be helped.

    You say that this had not been the case until now, but section 35 exists. I suspect it was passed from the very beginning, in 1867. This section has been around for a long time, but I don't know the exact date. Therefore, I'm not sure I fully understand the usefulness of Bill S‑13. Quite frankly, it seems to me that the protection afforded by section 35 of the Constitution Act, 1982, is more important.

    That being said, there are other elements that raise certain questions. If I understood you correctly, you said that this will help strengthen relations with indigenous communities and advance reconciliation. I'd like you to tell me about that before my time is up. How will Bill S‑13 advance reconciliation with indigenous communities? Is there a demand for that? Did any of the representatives of the indigenous communities tell you that section 35 of the Constitution wasn't enough? Were they unanimous in that regard?

     Indeed, they were unanimous, except for the three groups I just mentioned in response to Mrs. Brière's question.

    Second, we consulted a number of groups, a number of rights holders as such, and they all asked us for that.

    My third point is to reassure them that their rights will be protected in any federal bill, and interpreted in that context.

    I can tell you about a case that took place in British Columbia, which may be a useful guide for you. That dispute concerned the rights of a mining company. The judge's decision was influenced by the fact that the provincial interpretation law requires that indigenous rights enshrined in the Constitution and the treaties always be protected. It's the Gitxaala decision, and I can provide you with the Internet link to that case law.

    Such a mechanism can help provincial courts. At the federal level, we will add this assistance and tool.

    Thank you very much.

    We'll now go to Mr. MacGregor for six minutes.

     Thank you very much, Madam Chair.

    Minister, welcome to the committee, and thank you for being here to discuss Bill S-13.

    A large part of my riding's population is indigenous. In fact, two out of three names in my riding of Cowichan—Malahat—Langford are anglicized names of first nations. Any time I'm here as a member of Parliament discussing anything to do with indigenous rights, it's not merely a national issue for me; it's also very local. I have a lot of constituents who are very interested any time we're discussing this, either in the House of Commons or at committee.

    You and I have both been here since 2015. In the previous Parliament, the 43rd Parliament, we passed Bill C-15, which is the federal United Nations Declaration on the Rights of Indigenous Peoples Act. As you know, my province of B.C. has similar legislation as well.

    The Province of British Columbia, however, also has an Interpretation Act. Its Interpretation Act makes specific reference to its Declaration on the Rights of Indigenous Peoples Act. We don't see that in the current federal version of the Interpretation Act, nor do we see an amendment being made in Bill S-13.

    The Senate report on this bill did make reference to the fact that this could be a pathway in the future. If you read Bill C-15, which is now part of the statutes of Canada, section 5 does state that “The Government of Canada must...take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”

     I can appreciate what this bill does. It, of course, has our support. I think it's an important bit of federal housecleaning to make sure that we have consistency.

    Perhaps I could ask you this, Minister. Why not follow the example of the Province of British Columbia? Why not have, in our federal Interpretation Act, maybe through Bill S-13 or through another measure in the future, a specific reference to that very important federal UN Declaration on the Rights of Indigenous Peoples Act?

    Thank you for the question, Mr. MacGregor.

    The key rationale for us came down to, effectively, the consultations that were undertaken. As I mentioned in my opening remarks, there were about two years of consultation just on this very bill, which may seem to some people like a lot for what is a fairly short bill and what some might consider to be an administrative or housekeeping amendment. It was really important to get it right and to do right by the rights holders whom we consulted with around the country.

     On the issue of how we reconcile UNDRIP with the non-derogation clause that is being proposed, we didn't have wide consultation on that piece. We felt it would not be appropriate to go ahead with that without doing the necessary consultation.

    I would also underscore that there would be a bit of an internal inconsistency, as well, were we just to do an amendment through the parliamentary process on that very issue. UNDRIP itself, under section 5—and you're probably aware of this—calls for consultation on any legislation that may impact upon indigenous people's rights. Even pursuant to the UNDRIP document that we passed—the UN declaration act at the federal level—to comply with that statute, we would have to do that consultation by necessity.

    The UNDRIP Act that we did pass does call to make sure that the laws of Canada are consistent with the declaration. If we're trying to look for a way of making sure that Canada's laws are consistent with the declaration, I think a starting point would actually be through the Interpretation Act.

    Now, I can appreciate that maybe it's a little bit too late to put that in the current version of Bill S-13, but do you see a possibility in the future of using the Interpretation Act to make sure that Canada's federal laws are consistent with the declaration, as is called for in the act?

     The answer to that is that I do, absolutely.

    What I've heard from indigenous rights holders is that they are very willing to embark upon that kind of consultative exercise. At this point, Bill S-13, as it's currently stipulated and articulated, is what we achieved consensus on, and that's what we're moving forward with.

    Going forward, looking at whether further amendments may be necessary to the Interpretation Act to reconcile it with UNDRIP would make a lot of sense. I think that is work that we should actively pursue.

    In the consultations that you had, I understand that there was a very clear majority of stakeholders who were happy with the direction that this bill took.

    Could you provide this committee with a little more detail on the nature of the minority views? Were they over the language selection in this amending bill, Bill S-13, or were they a bit broader? I'd like to be informed on the nature of those minority views.

    It was a minority of views. As I indicated, it was basically three different rights holders who indicated they wanted to preserve the language that was in their own non-derogation clauses, and that came out in the context of the consultations. The wide majority of all the interventions that we had right across first nations, Inuit and Métis was that they were comfortable with the language as proposed.

     I'll ask Ms. Sargent to reflect on the nature of the three groups and what motivated their concerns.

    As the minister said, there were three nations—shíshálh and a couple of others—that already had implementation legislation for self-government agreements or other key legislation. They had very valid reasons for retaining the non-derogation clauses there. Otherwise, there was broad support for the proposed change.

    I'll just add, Madam Chair, the citation for Monsieur Fortin: 2023 BCSC 1680. That's the Gitxaala case.

    Thanks.

    That's fabulous. You're right on time. Thank you.

    We now start our second round with five minutes for Ms. Ferreri, please.

    Thank you, Madam Chair.

    Minister, indigenous women and girls are killed at a rate six times higher than non-indigenous. More than half of the cases involving non-indigenous women and girls between 2009 and 2021 resulted in charges of first-degree murder, but when the victim was indigenous, police laid or recommended that charge half as often. The less serious offences of secondary murder and manslaughter were more common.

    In my community of Curve Lake, Cileana Taylor was a beautiful girl. She loved animals. In the words of her sister, “She will forever be missed and celebrated. Cileana is now another Indigenous woman who didn't make it home after her intimate partner violently assaulted her. Rest in Power my love.” That's her sister, Sage Castel.

    When he was arrested for attacking Taylor, Jordan Morin was out on bail for a separate 2019 attack. When he was out on bail in the Cileana Taylor case, he was arrested in January 2021 for the alleged assault of another woman in November 2020. As a final sickening coda, Morin was sprung on bail again in February 2021, just three weeks before Taylor died. Over the years, he also did 10 months in the slammer for assaulting a good Samaritan, who suffered life-changing facial injuries.

    Today in the House, your response to my colleague about diminishing crime in this country was “We delivered bail reform.” What would you like to say to Cileana Taylor's family about the bail reform that you've delivered?

    To Ms. Taylor's family, I would express deep sorrow and sympathy in terms of the fact that Cileana is no longer with us. I think that's a horrific crime, and it's a tragedy that shouldn't be happening in our society.

    What I would also say is that we've been working very hard to try to address violence against women, particularly indigenous women. That's why we launched the MMIWG inquiry, and that's why we have the calls for justice that we're working to implement.

     Some of the bail matters that you mentioned have actually been dealt with in Bill C-75 and in Bill C-48, where we implemented reverse onus on bail for people who commit intimate partner violence. We accentuated that in Bill C-48.

    What I would say to you is the same thing that I've been saying repeatedly to many different provincial actors. What I want to know—and I'm sure you want to know as well, Ms. Ferreri—are the circumstances in which that individual was released on bail—at least twice, by your account. What were those circumstances? Did the Crown contest the bail? I would like to know that. If the bail was granted above the Crown's objections, did they appeal the bail through what's called a bail review? Was bail granted because there was no detention facility ready to take that person?

    What Canadians need to understand is that—

    Thank you. It's my time. I've given you a lot of time. Usually the time is the same.

    The likelihood of reoffending is one of the basis grounds for denying bail, and clearly that wasn't accurately applied.

     I see you wanting to try to talk over this. It's just beyond insulting, what you just said. You blame everyone else. We saw this with then minister Marco Mendicino. It wasn't his fault that Paul Bernardo was transferred in the dead of night. He's just the minister.

    Minister, this is ridiculous. You are the minister. To blame the provinces is just absurd. The murdered and missing indigenous women.... AFN president Cindy Woodhouse said, “This failure is not acceptable to our people”. You have failed everyone, and you don't take any accountability. You have no humility at all.

     This is an email I sent you on December 5, almost a year ago. It's a letter from Hayley Schultz. You were asked directly and repeatedly. It has been brought up multiple times. Her son Bradley Pogue was murdered. You have never acknowledged this letter. It is a public letter. I have all the correspondence.

    You said to my colleague today that you are not going to enforce the Canadian Victims Bill of Rights. Please show some humility. Please read Hayley's letter. I will walk it over to you right now, if you want, Minister Virani.

    I have a point of order, Madam Chair.

    That's not an accurate reflection of what the minister said. If she's going to repeat what the minister said, at least have enough respect to be accurate.

    Would you like me to read the email?

    Do you have a question? You have 35 seconds left.

     The question is, will you acknowledge Hayley Schultz's letter on the murder of her son Bradley Pogue, which I sent you on December 5? Will you read this if I walk it over to you, and will you acknowledge her?

     Mr. Virani, you have time to respond.

     I'll make multiple responses.

     The circumstances of the death of Bradley, Hayley's son, are well known to me. I have your letter right in front of me, and I've read the letter. I've read her handwritten note.

     Why wouldn't you answer her?

    What I can say to you is that I feel desperately sympathetic over her loss, as a parent—as anyone would—in terms of the fact that her son is no longer with us.

    What I can also say to you, Ms. Ferreri, is that there are certain things that confine my role. That matter is actually—

    You can't pick up the phone, can you?

    Can I finish, Madam Chair?

    Ms. Ferreri, your time is up, but the minister will have time to respond.

     That matter is under appeal right now. When a matter is under appeal, it is entirely inappropriate for the Attorney General of Canada to weigh in on it. That would transgress certain lines regarding perceptions of influencing the process—

    That's not what your email says.

    —and ensuring the sub judice rule is always complied with.

    Do I feel sympathy for a woman who has lost her child? Absolutely, I do. If I could bring that child back, I would do everything in my power to do so. However, there are certain rules that confine what I can and cannot do as Minister of Justice.

     With respect to your comments on ensuring the bail system is working, I would simply put it to you that, in the context of sexual violence in particular, it is not just me who has decried what's going on in the court system, particularly in Ontario. It is also journalists who have said that we don't have enough courtroom resources. We don't have enough Crown prosecutors. We don't have enough dedication to addressing sexual assault in our system. I can amend the Criminal Code, but unless it is administered on the ground by the provinces, including Ontario, all those changes are for naught. We're seeing charges being stayed or withdrawn because of delays in the process. The Province of Ontario is not meeting the Jordan principle on timelines for trials. That is rendering an injustice to those individuals. What we need to address those matters is more resources. This includes more Crowns, more police, more courtroom resources and more detention facilities for people who need to be deprived of bail.

    Thank you.

    Thank you for that response. It was a serious question posed, and I think it warranted a serious response.

     Mr. Bittle, you have five minutes, followed by Mr. Fortin and Mr. MacGregor for two and a half minutes each, if that's okay with the minister and the support staff with him, and then we will conclude.

    Mr. Bittle, the floor is yours for five minutes.

    Thank you very much, Madam Chair.

    Minister, I will give you some of my time, if you'd like to respond. I know none of the questions from the Conservatives were related to the legislation in front of us. Is there anything you'd specifically like to respond to, in terms of some of the questions you weren't given a chance to respond to?

     I would just like to point out that some of the members opposite are actually former Crown attorneys, and it's Crown attorneys themselves, including the president of the Ontario Crown Attorneys' Association, who have lamented the lack of resources to address what's going on.

     I'll just quote Donna Kellway, who's the president of the Ontario Crown Attorneys' Association. She said, “we need to be able to make sure that we have the resources to be able to get those bails properly prepared and the bail hearings taking place”. She went on to say, in respect of a $29-million proposed investment in Ontario, “It's wonderful when the police are getting resources so that they can investigate all of these crimes, make the arrests and bring us the charges. But it's completely wasted if they're able to do all of that and then we don't have the resources to prosecute them.”

    What Donna Kellway is pointing out is exactly what I've been reiterating. Amendments to the Criminal Code at the federal level obviously are important, but implementation of those Criminal Code changes on the ground, in the courtrooms across this country, including in the province of Ontario, is vital.

    It's a good point. I know that some members are pretending that they haven't read the Constitution. I'm wondering if perhaps you could remind people who may be watching where the administration of justice falls, at what level of government.

     The administration of criminal justice in this country falls to the provinces under what used to be called the BNA Act, which is now called the Constitution Act, 1867. Also, importantly, the Constitution outlines, under section 11, a presumption of innocence and the right for any accused person not to be denied reasonable bail without just cause.

    I'll ask a couple of questions, if I can, on the legislation before us.

     How does this bill affect future legislation?

    I think it's really important, because it goes to a bit of what Monsieur Fortin was asking me about. It reduces the burden, which has been primarily borne by indigenous leaders around this country, of continually having to insist upon adding a non-derogation clause when dealing with various types of issues that we legislate in the House of Commons, and to work with drafters on what vocabulary should be used and the specific terms in the text of that. That duty will no longer attract, because we will have an overriding provision in the Interpretation Act that obviates the need for inserting a non-derogation clause in a particular statute.

    Why was the past ad hoc approach to non-derogation clauses unsustainable?

    One, it was cumbersome. Two, it was burdensome on the indigenous leaders. Three, notwithstanding the great drafters we have in the city, unfortunately we didn't always have consistency of language. That lack of consistency has led to non-uniform interpretation, which is not useful for the predictability that we seek to aspire to in terms of running a legal system and a justice system.

    Why are bills like Bill S-13 and Bill C-61 important for nation-to-nation, Inuit-Crown and government-to-government relationships with indigenous peoples?

    I think it's because it demonstrates quite clearly that if we roll up our sleeves and do the work, we can actually accomplish really important things.

    Again, this is a bit of a technical housekeeping bill, but it is so important in terms of what it represents. It's taking those distinct groups at face value. When we work at this separately with first nations, Inuit and Métis, we are establishing all of the relationships you just mentioned. We're invigorating them. That's why you have indigenous leaders in this room right now. They are celebrating what we are about to accomplish as a Parliament.

    Does Bill S-13 affect indigenous language rights?

     Bill S-13 empowers and ensures that aboriginal rights, as safeguarded under the Constitution and as safeguarded under treaties, are given priority and not derogated from or not diminished. It complements some of the work we've done in other respects. I'll take some ownership of this, because I worked on the Indigenous Languages Act when I was Parliamentary Secretary to the Minister of Heritage in our first Parliament, the 42nd Parliament.

    I think in each of these instances, what you're seeing is that rights affirmations, emboldening people, passing legislation and coupling it with resources to embolden people to protect and preserve their culture and their language only bode well for that kind of cultural protection in terms of having this kind of non-derogation clause.

    Does this bill increase legislative efficiency?

    One thousand per cent it does. It short-circuits what had been a cumbersome situation, where we had burdens placed on indigenous leadership to suggest language to us. It allows us to be much more efficient and much more nimble in terms of the passage of laws.

    I think that's my time.

    Thank you, Minister.

    Thank you very much, Mr. Bittle.

    Thank you for the relevancy of all the questions that were posed. They were directly related to our study. That makes my job as chair much easier.

    We will now go to Monsieur Fortin.

     You have the floor for two and a half minutes, Mr. Fortin.

     Thank you, Madam Chair.

    Mr. Minister, with all due respect, I must admit that you didn't convince me earlier. I'm obviously convinced of the importance of respecting the rights and treaties already signed and in force. It's essential that we continue to respect those treaties and indigenous rights. However, I still believe that section 35 of the Constitution Act, 1982, already provides for that.

    You referred me to a British Columbia court ruling, but I believe it's a trial court. Has the Supreme Court ever addressed this issue? Has it already indicated that legislation such as Bill S‑13 should be passed?

    I don't think that's the case. The Supreme Court has already examined section 35 of the Constitution Act, 1982, but not in the context of promoting the adoption of a non-derogation clause in the Interpretation Act, which is federal.

    Has any other appellate court ever indicated that a provision such as the one proposed in Bill S‑13 should be adopted?

     I'll pass that one to Ms. Sargent.

     Thank you for your question.

    I refer you to the reference to the Quebec Court of Appeal on the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families. It wasn't a question of whether to adopt a provision such as the one proposed in Bill S‑13, but rather the importance of having an interpretive provision in the federal legislation. I just want to clarify that it stressed the importance that, as the minister explained, we must be careful to interpret the act in question in a way that is consistent with section 35.

     Thank you, Ms. Sargent.

    Mr. Minister, are there other references, such as established authors of scholarly articles on indigenous issues, who might have said that section 35 isn't enough and that legislation such as Bill S‑13 should be passed?

     If you want, I can provide the committee with what we actually heard during consultations, but it's a large file, because there were over 60—

     Excuse me for interrupting you, Mr. Minister. I don't want to rush you, but I have barely five seconds left.

    I'm talking about scholarly articles. Have recognized legal authors ever asked for such a law to be passed?

     A 2007 Senate report dealt with this issue in depth.

    Thank you very much.

    We have Mr. MacGregor for the final two and a half minutes, please.

     Thank you, Madam Chair.

     Minister, similar to Mr. Bittle, I also want to touch on the subject of indigenous languages.

     In my riding of Cowichan—Malahat—Langford, on the east coast of Vancouver Island it's largely Coast Salish. The dominant language is Hul'q'umi'num. There are certainly variations of that. Then, on the west coast, I have a tiny bit of Nuu-chah-nulth territory.

    I know that a lot of the rights related to indigenous languages and their protection and revitalization are confirmed by federal statute, and I know that we have the Official Languages Act. I'm just wondering, first of all, if there was anything you wanted to add to your previous answer to Mr. Bittle.

     Also, just on Bill S-13's broad scope, do you have any thoughts on how it's going to specifically interact with some of the provisions in the Official Languages Act? I know that in my communities the preservation of Hul'q'umi'num is very near and dear, and we have only a handful of truly fluent speakers. There are some very serious efforts being made to share that language with the younger generation. We are having success, but there is going to be some assistance required in order to keep this language alive and well for future generations.

    Let me say, Mr. MacGregor, that we share your passion for ensuring that that language in particular gets preserved, as well as the rest of the languages that were on the verge of extinction prior to the passage of the Indigenous Languages Act.

     I think they're a bit divorced, but what I would say to you is that as far as the Indigenous Languages Act is concerned, which was Bill C‑91 in the 42nd Parliament, it is a freestanding entity and it's coupled with an official languages commissioner and robust resources investments that we've already made. In terms of the volition of our government to continue to replenish those resources and maintain that strong preservation and integrity of official languages, that volition is there.

     I think where this provision will help is that it will allow a review court, if it comes to that, to look at what we've done with the Indigenous Languages Act and to interpret it in a manner that abides by and promotes aboriginal and treaty rights. That would beg the question.... If a specific group had a treaty or had established an aboriginal right—and there's a legal test for that as well—and if that could be established in law, the interpretation that would be given to upholding and promoting that language would be emboldened by this kind of amendment.

     I think it works in the same direction, in terms of advancing reconciliation and advancing indigenous rights, including, in this particular case, indigenous language rights.

    Thank you very much.

     Minister, thank you for appearing, and thank you to your support staff with you today.

    That concludes this particular segment of our meeting.

     We will adjourn, and then we will prepare for the in camera subcommittee meeting. I would ask those who are on the subcommittee to please stay.

     To the rest, thank you very much, and we'll see you next time.

    The meeting is adjourned.