Senator Dalphond at third reading of Bill C-69, Budget Implementation Act, 2024, No. 1

By: The Hon. Pierre Dalphond

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Parliament Hill from across the Ottawa River, Ottawa

Hon. Pierre J. Dalphond: Honourable senators, I rise to briefly speak to Bill C-69, the latest of the government’s omnibus budget bills.

I will focus on Division 38 and Division 39 of Part 4 regarding immigrants and refugees and the related changes made at the House Finance Committee when they considered the concerns expressed by many, including the Senate.

In the celebrated style of Senator Cotter, I will address three subjects: first, some overall comments on Bill C-69 and omnibus budget bills; second, changes in the other place to Division 38 and Division 39; and, third, a Senate best practice on omnibus budget bills called the Hayden formula as regards the timing of our pre-studies and clause-by-clause voting in the other place.

In general, as I said on Tuesday about another government omnibus budget bill — Bill C-59 — this legislation continues the government’s bad habit of including numerous non-financial measures in a budget implementation act.

In Bill C-69, these measures, called “Various Measures,” are found in Part 4. Part 4 contains 43 divisions spanning over 140 pages. These measures amend over three dozen statutes, including the Criminal Code.

The Legal Affairs Committee observed the following in our pre-study report covering several divisions in Part 4 of Bill C-69, and I quote:

The committee repeats its concern from its last report on a budget implementation bill . . . regarding significant amendments and additions to criminal laws, and others, that are introduced in such omnibus legislation. Amendments to criminal laws engage important constitutional and legal questions that require in-depth study in committee and thorough debate in the Senate.

The committee is concerned that there was not enough time or opportunity to receive evidence to thoroughly analyze the Bill C-69 provisions assigned to this committee and the impact of these amendments. This does a disservice to the legislative process and the committee’s mandate that includes the scrutiny of legal and constitutional matters. . . .

Minister Virani, in his testimony before the committee, explained that the inclusion of non-financial items in the budget was caused by filibustering in the House of Commons. This is unfortunate as the Committee was forced to work within a truncated legislative review regime designed for the current political circumstances of the House of Commons, which constrains the Senate’s ability to properly apply “sober second thought.”

Maybe the minority government argument will no longer exist after the next election, but I feel that the desire to use omnibus bills may not stop. Perhaps the time has come for the Senate to consider exercising its constitutional powers, such as amending these kinds of bills.

In 2016, then-Government Representative Senator Harder proposed an amendment in the Senate to budget Bill C-29, which removed a measure providing for uniform consumer protections in the banking sector across the country, following the advocacy of former Senator André Pratte on behalf of Quebec and the provincial jurisdiction over consumer protection. That change stands as a great example of sober second thought in the era of Senate independence.

I turn now to my second point: the changes made in the other place to Division 38 and Division 39 regarding immigration.

In Bill C-69’s original form, Division 38 contained proposals intended to streamline Canada’s refugee claim and removal process. It was presented by officials before our Social Affairs Committee and before our National Finance Committee as a means to streamline the process and make the refugee board more efficient at the price of, maybe, sacrificing some fundamental rights.

In the view of the Canadian Association of Refugee Lawyers, the proposed amendments would have disproportionally disadvantaged vulnerable refugees and immigrants, such as those living with mental health disabilities, past trauma and housing insecurity.

In its pre-study report, our Social Affairs Committee recommended that it be removed from Bill C-69. I was, therefore, pleased to see the House of Commons Finance Committee remove Division 38 from the bill.

I move now to Division 39. It contains proposals described in relation to housing high-risk immigration detainees in special immigrant stations to be located within penitentiaries.

Former Liberal ministers Lloyd Axworthy and Allan Rock have said the following about these proposals:

Following the launch of the #WelcomeToCanada campaign, led by Amnesty International and Human Rights Watch, all 10 provinces committed to ending the use of provincial jails for immigration detention. In doing so, many provincial officials expressed grave concerns about human rights abuses. Over the past two years, hundreds of lawyers, academic scholars, health care providers, and people from faith-based communities, alongside individuals with experience in immigration detention and dozens of leading Canadian and international organizations, have called on the federal government to end the use of jails for the purpose of detaining people while their migration requests are under review.

They continued, saying:

Detaining survivors of displacement — especially in prisons — only deepens the trauma that many of them have endured. The road to a welcoming society is not paved with human rights violations. We need to invest in people, not prisons. And it’s time the federal government got on board.

That is the quote from these two former ministers.

After hearing from many witnesses — including former Minister Rock — over more than three hours, our Standing Senate Committee on National Security, Defence and Veterans Affairs recommended in its report on its pre-study of certain parts of Bill C-69 the removal of that division from the bill. In early June, I gave notice of a motion — seconded by Senator Tannas — to invite the House of Commons to consider removing Division 39 from Part 4 of Bill C-69. That would at least allow such a controversial measure to be studied separately.

On June 4, the House of Commons Finance Committee spent a full day running through Bill C-69. You should have seen it. It was very interesting. I am glad we treat omnibus bills as separate parts sent to different committees and conduct a summarized but thorough review. That is not necessarily what is happening in the other place.

On that day, members adopted two NDP amendments to improve Division 39, which Parliamentary Secretary Ryan Turnbull acknowledged were in response to concerns raised by many stakeholders and parliamentarians, including senators.

The first amendment adopted unanimously established safeguards, including: statutory criteria defining a high-risk detainee, such as previous convictions or pending charges in Canada or elsewhere for a sexual offence or an offence involving violence or weapons, associations with a criminal organization or violent behaviour towards staff or other immigration detainees; exclusions for minors; and requirements for the Minister of Public Safety to inform a targeted person of the grounds to hold that person in an immigration station as well as their right to consult a lawyer, to provide reasons why the minister should not act on the contemplated decisions and, if the minister proceeds, the obligation to provide written reasons for the determination that the person should be placed in an immigration station.

In other words, the amendments have established a due process section, transforming the decision of an officer into a ministerial decision that must be limited to certain grounds and justified, and which can be reviewed by an independent tribunal and a judicial review before the Federal Court if need be.

Colleagues, in my view, these amendments are significant improvements to Division 39. Of course, they don’t address the real problems that exist for refugees and immigrants; however, they improve the situation compared to what the government proposed in Division 39. I am grateful to our colleagues at the National Security, Defence and Veterans Affairs Committee for having devoted more than three hours to calling and listening to witnesses, then inviting the other place to either remove it or at least amend it.

In addition, I note that Bill C-20, currently before us at second reading, proposes independent oversight of the Canada Border Services Agency, or CBSA, which should hopefully provide some safeguards for immigration detainees.

In conclusion, when Senate committees have a real opportunity to pre-study an omnibus bill, it provides them an opportunity to communicate their findings to the other place. However, it must be done well ahead of time.

Indeed, we saw a similar successful result in 2017 with omnibus budget Bill C-44, with House amendments following Senate advocacy to strengthen the independence of the Parliamentary Budget Officer — an effort led by our late colleague former senator Joe Day, for whom we will hold a celebration of life tomorrow in New Brunswick.

That was my third point.

There is something here we should explore. This sequencing somewhat resembles what the Senate Procedure in Practice refers to as the “Hayden Formula”:

During the 1970s, the Senate made an important contribution to the legislative process through the “pre‑study” of bills while they were still before the House of Commons. Pre-study allows the subject matter of a bill to be referred to a Senate committee for a general review. This procedure is sometimes referred to as the “Hayden Formula” because Senator Salter Hayden was the driving force behind it. During the process of pre-study, the Senate can suggest changes to the minister responsible for the bill who, in turn can propose amendments in the House of Commons. . . .

Of course, that means we entertain pre-studies in due course, well before the House of Commons is looking at it at clause by clause.

Senators, like many of you, I have reluctance about the overuse of pre-studies to rush bills. However, with omnibus budget bills, sequencing some Senate and House committee proceedings has practical value and can have a good result, as shown with Division 38 and Division 39 of Bill C-69. I trust this government and future governments will consider this if they do not want the Senate to amend their bills.

Thank you. Meegwetch.

Some Hon. Senators: Hear, hear.

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