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Nick Sibbeston

The Hon. Nick G. Sibbeston, B.A., LL.B. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator Nick Sibbeston represents the Northwest Territories and the Senatorial Division of the Northwest Territories. He has served in the Senate of Canada since September 2, 1999.

Statements & Hansard

Third reading of Bill C-2, the Fair and Efficient Criminal Trials Act

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Statement made on 23 June 2011 by Senator George Baker

Hon. George Baker:

Honourable senators, first, I want to congratulate Senator Runciman for the excellent job that he has done. As the former Solicitor General for the Province of Ontario, he is well known to many of the witnesses that we had.

I want to make special reference to the job that the Senate has done on this bill. As we all know, 23 days ago, 31 persons were released from custody. Each one of them the police had investigated and found they had reasonable grounds to believe and charged them with indictable offences. They were drug traffickers, according to the police documents.

Honourable senators, they were all released 23 days ago, free men and women, all because of a ruling which in and of itself no one disputes as being a correct ruling. According to law, section 11(b) of the Charter had been violated or would be violated in the future in that their trials would not start until the year 2021. Now the remaining trials — there were 156 people charged for murder, multiple murders, conspiracy to murder, conspiracy to import, export, conspiracy to traffic and so on — will start now next week in two courtrooms in Quebec, the only courtrooms that are able to handle these mega-trials.

After two years, the judge in the case that was just adjudicated, R. v. Auclair, which was referenced many times in the committee reports, as he laid out, every two years there will be a new group of persons who will be tried because it will take two years for each lot in the two courtrooms for the trials to be completed. The final lot will complete their trials in the year 2021. The judge in making his determination to release 31 of them said, in effect, Look, we have to put the most serious offences first because the public of Canada would never allow the release of persons who have been charged with murder, conspiracy to murder, conspiracy to traffic and so on.

The first lot of their trials will start on Monday, and the trials will continue every two years thereafter.

There is another set of trials — we were apprised of this matter by a witness today — due to start in September, with the same problem of mega-trials facing them. The Government of Canada, in its wisdom, said to the House of Commons and to the Senate last week, We want this bill passed.

Honourable senators, when the government asks Parliament to pass a bill, there are certain things that Parliament must do as a legislative body. Judges cannot operate in a vacuum when complex legislation like this bill is passed. This legislation, Senator Angus wished us to repeat, is procedural in nature. Senator Angus makes that point so there will be no possible challenge as to its constitutionality as a major change in the law. Of course, we had the representative of the minister this morning declare this point to the committee, and we had Senator Runciman repeat it here today, so it has been repeated on both sides of the house.

The important thing is that this piece of legislation hopefully twill address the problem. However, judges cannot make rulings on legislation, and lawyers cannot make rulings, unless they understand what the legislation says. That function is the function of Parliament. Parliament passes the law, but Parliament must outline the intent of the legislation. That function is the job of the minister or the minister's designate. That function is the job of Senator Runciman in this place. That function was the job of the minister in the other place and it was the job of the department.

Honourable senators, yesterday the New Democratic Party claimed in a press conference that the Senate should be expunged, should be done away with, that it serves no purpose. I recall the NDP coming to us about two years ago when a certain piece of legislation was before this Senate, a 500-page bill that passed unanimously in the House of Commons, with the NDP and the Bloc voting for it. The NDP came to us and said, "Look, will you please fix this bill that we passed because we did not read nine pages of it."

The bill was a 500-page bill, an omnibus piece of legislation amending the Income Tax Act that would remove the tax credit for the Canadian film industry but keep it in place for the American film industry to make films in Canada.

Senator Mahovlich: Unbelievable.

Senator Baker: I repeat: 500 pages, and no one read nine pages that addressed the problem.

I must note here that perhaps it is an oversight, but it is a substantial oversight. It is unfortunate that the department, in its briefing notes to the minister, did not outline those nine pages. It is unfortunate in the House of Commons committees that when they study a large bill, one motion is made to cover 50 to 100 pages. In other words, the motion is, "Shall clauses 2 to 52 pass?" or "Shall clauses 52 to 102 pass?" This approach is the custom with large bills in the House of Commons. However, they missed nine pages.

What did the Senate do? Senator Angus was the co-chair of that committee. The Senate sat on the bill, if that is the expression we can use, and the legislation did not pass.

About a month later, the NDP came to the Senate again and said, "There has been a change to the Elections Act." The government did not compose that bill; that bill was drafted by a committee of the House of Commons. It was by all-party agreement that the bill would release every voter's name, address and date of birth. One can imagine the effect that bill would have on our senior citizens and people who participate in telephone marketing.

Anyway, the Senate again moved a motion, and the mover of the motion was the Leader of the Government in the Senate to take out that provision that had been so welcomed in the House of Commons by the opposition members.

Therefore, it is passing strange that the NDP yesterday should demand that the Senate be done away with. Who, then, would they call on to correct their mistakes? I think I can say this, honourable senators; I was 29 years in the House of Commons, the longest serving member there continuously, and I can honestly say that it is not a good legislative body. As a legislature, it does not perform its function.

However, Senator Angus or someone said, "Let us abolish it." Well, there is a choice. There are two functions recognized for Parliament in our system: One function is to legislate and the other is to make the government accountable to the people of Canada. That accountability is done through the media.

The House of Commons performs that function well. The Senate performs its legislative function well. As was pointed out a moment ago, it is a matter of which one. If one had to do away with one function, which one would they do away with? They would certainly have to change the — well, I do not know. We have Question Period here. I dare not go down that road as to express my personal opinion.

My point is this: The House of Commons spent six minutes hearing evidence on this bill that we are approving today. I repeat: six minutes. Two motions deemed to have been done were associated with this bill.

This Senate started yesterday and spent six hours and 20 minutes on this bill; started again this morning and accomplished another four complete hours. That is 10 hours and 20 minutes. That is 124 times more than what the House of Commons accomplished with this bill in committee.

Some Hon. Senators: Hear, hear!

Senator Baker: That is why, honourable senators, I want to make reference to the fact that the Senate is always quoted many more times than the House of Commons in our case law. If honourable senators look to any of the electronic reporting facilities — Westlaw, Carswell, Quicklaw, et cetera — they will be able to see how many times a committee of the Senate is mentioned compared to how many times a committee of the House of Commons is mentioned or referenced by a judge in making a ruling in our provincial courts, in superior courts, in courts of appeal, in the Supreme Court of Canada and in every quasi-judicial body in this country. Senate committees are mentioned more often by the labour boards and by every appellate function that we have. It is the same with the nurses acts, doctors acts and law acts of our provinces.

All of those adjudications are reported and one can count the number of times that adjudicators use them to back up their investigation of the purpose of a bill when they deal with legislation, and in making their judgments. As I pointed out before, the Senate leads three to one in the usage of information that is given, not just in the chamber, but mainly in the committees of the Senate. Committees are a vital function.

As Senator Runciman pointed out, the committee examined — as every committee of the Senate examines — word for word certain sections that do not make sense on the face of it. For example, this morning, words were put forward by Senator Fraser. She wanted to know what the meaning of the following:

. . . the decisions relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that are made . . .

— during the trial —

. . . continue to bind the parties . . .

— so, in any new trial —

. . . if the decisions are made — or could have been made — before the stage at which the evidence on the merits is presented.

I repeat "could have been made." Your Honour is a great jurist and has read a lot of decisions. I bet he has never seen in legislation the words "or could have been made." He would be correct, because that is what the witness said. However, the witness from the department clarified it for us and thereby clarified it for everyone who will be dealing with mistrials in the future.

There is another section that a former justice whom Senator Runciman mentioned a moment ago ruled on. Justice LeSage clarified the words "may only be made after the prosecution proffers the indictment."

Go to one province, Newfoundland and Labrador, and an indictment is proffered; that is, one puts the indictment and then the accused will make a plea. Right at the beginning, after the person is arrested and released, the first thing is arraignment and then it is put. However, it operates completely differently in Ontario. Justice LeSage pointed out that a ruling of the Supreme Court of Canada settles the matter as far as this exact wording is concerned in this legislation.

Those are the examples that one can use.

Senator Boisvenu was concerned about the rates of government-paid fees to certain lawyers in mega-trials. He was not talking about legal aid. As we clarified this morning, neither was he talking about the use of seized property or funds from people's bank accounts that are considered to be proceeds of crime, because there is a procedure whereby proceeds from crime can be used for counsel representation. He was talking about attorney general rates in certain provinces that start at $250 an hour and go up by rates of 15 per cent.

Many judges agree with Senator Boisvenu's point that this payment is made for the best lawyers one can find, who will examine every single possible motion and examine everything with a microscope, although that person would not qualify for legal aid. Senator Boisvenu made the point that an ordinary person who must pay for their own lawyer could never ever afford that kind of gold-plated representation. He made a good point, and other senators made the same points.

I think the Senate has done a magnificent job here. The members of the Senate committee have done a great job: Senator Wallace, the Chair; Senator Fraser, Deputy Chair; Senator Angus; Senator Banks; Senator Boisvenu; Senator Chaput; Senator Frum; Senator Joyal; Senator Lang; Senator Meredith; and Senator Runciman.

Senator Angus: Senator Baker, also.

Senator Baker: I think it was a job well done by the Senate and we can be proud of the legislation we are passing here today; we have done our job.

Hon. Senators: Hear, hear!

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