STANDING COMMITTEE ON
DE LA JUSTICE
Thursday 26 April 2012 Jeudi 26 avril 2012
Bill 34, An Act to repeal the Public Works Protection Act, amend the Police Services Act with respect to court security and enact the Security for Electricity Generating Facilities and Nuclear Facilities Act, 2012 / Projet de loi 34, Loi abrogeant la Loi sur la protection des ouvrages publics, modifiant la Loi sur les services policiers en ce qui concerne la sécurité des tribunaux et édictant la Loi de 2012 sur la sécurité des centrales électriques et des installations nucléaires.
Before we have any further business, I’d just like to acknowledge the presence of Mr. Randy Hillier, who has been duly subbed in for Mr. Rob Milligan. I’d now direct the clerk to please remedy his name tag.
Mr. Randy Hillier: I move that we adjourn the Standing Committee on Justice Policy from clause-by-clause consideration of Bill 34 until this committee has deliberated on whether this legislation breaches the independence of the judiciary.
The Vice-Chair (Mr. Shafiq Qaadri): If it’s agreeable to the committee, instead of once again deferring our discussion till the photocopies arrive, perhaps we can begin the discussion. The floor is open. Mr. Hillier, if you’d like to begin, you’re welcome.
Mr. Paul Miller: Thank you, Mr. Chair. Obviously, we’re not thrilled about the holdup, but we certainly understand that some of the amendments came in quite late, and the government has asked if they could further study them to analyze them better so they can make a proper and whole decision on the way we’re going. We don’t have a problem with further analysis of the situation.
Thank you, colleagues. The most recent motion presented by Mr. Hillier is now being distributed. I would now invite speakers. Once again, we’re at about 28 minutes or so from the vote, and we’ll adjourn at 10 minutes to or earlier for the vote. Mr. Hillier.
Mr. Randy Hillier: Thank you, Chair. This bill, Bill 34: You can clearly see what the intent and the expectations are, but I think there needs to be cause to look at how this is going to impact all people, especially in the courtrooms. I’d like to just read a little bit from the Canadian Ethical Principles for Judges, and it’s on judicial independence.
“Judicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Canadians.... Judicial independence thus characterizes both a state of mind and a set of institutional and operational arrangements.”
What I’m getting at here is—and I believe there are about 400 courthouses in the province, somewhere in that neighbourhood, with many different judges. Under this legislation, any judge’s freedom to enter the courtroom, enter the building, is subject to search—subject to search of his private belongings, his vehicle and whatever else he may have. This clearly can’t be the intention of Bill 34, but that’s the way it’s written at the present time. Any judge’s independence of travel and movement is subject to restrictions by a security guard in a courtroom or near a courtroom. I think that just hasn’t been considered.
Of course, in this legislation, in Bill 34, anybody can be identified or exempted or excluded or included at some future date by regulation. Of course, we know that that regulation—who’s in and who’s out—will not come back before legislators for discussion and debate. I think it’s quite incumbent upon us all to make sure that Bill 34 does not create another set of circumstances like what happened with the G20 conference in Toronto, where there was poor implementation, no scrutiny of the regulation that was enacted for that G20 summit by legislators, or political oversight of any manner. It caused significant harm, not just to the government of the day; it caused significant harm to our province and our society.
I think we really need to look at how this bill may in the future impact the independence of the judiciary, and I believe we should make arrangements for this committee to actually study how it will impact the independence of the judiciary.
Mr. Jagmeet Singh: Thank you very much. Just with respect to the independence of the judiciary, I wholeheartedly agree that the judiciary should maintain its independence. It’s one of the key components to an effective judiciary that they maintain their independence both politically, without undue influence, and be able to maintain a thoughtful, rational approach to the application of the law.
With respect to their movements in the courthouse, I agree that there is no clear law or exemption or regulation that provides for that power for the judiciary the way the bill is crafted now. I do note that one of the motions before this committee, that moves to strike schedule 2 and substitute it with an amended version of the Manitoba security act, does include a specific regulation regarding the judicial powers. I’ll just read it in just to provide an example of how we can maintain independence of the judiciary. If you have the motion in front of you, it’s section 145—
“145(1) Nothing in this part derogates from or replaces the power of a judge or judicial officer to control court proceedings, or to have unimpeded access to premises where court proceedings are conducted.”
This directly addresses the issue that my colleague raises, that the judiciary should be independent in their movement and have unimpeded access to the court proceedings or the court premises. In terms of unofficial or informal accommodation that’s been occurring, it’s well respected as well as common-law authority that judges do have the authority to impose their own level of security in each courthouse. That common-law power would exist regardless of Bill 34. There is a common-law authority that judges do have that discretion in their courtrooms.
But this additional piece in the Manitoba legislation which I’ve amended to fit into Bill 34 would clarify in legislation and would have that power crystallized so that there would be no confusion or no lack of clarity on that issue. I think that it’s an important issue, and I think that this motion, the NDP motion, would address that issue sufficiently and provide for those powers so that the judiciary does remain independent and have complete access to the courthouse.
Mr. Randy Hillier: Yes, there was a little bit of noise, and I didn’t get to hear it clearly. I would like to ask the NDP—I’ve got your amendments here. What specific amendment is it, so we can actually read it?
Mr. John Yakabuski: Oh, great, great. Look, I appreciate my colleague Mr. Hillier’s motion and also the input from Mr. Singh from the NDP. I apologize; I didn’t hear Mr. Berardinetti because I was talking to Mr. Singh at the time.
He raises an interesting question, and I also understand and agree with Mr. Singh that if this is not defined somewhere else in law, it is the common-law principle about the supremacy of the judiciary within their own courts.
So it is defined and codified in the law in Manitoba, but it is not addressed in Bill 34. I’m not a legal expert, nor do I have to be to sit on this committee, but I do think that Mr. Hillier’s motion with respect to determining whether or not this is codified somewhere else in law, that the judiciary is supreme within their own coat—within their own court—and their coats, probably, too—that they are supreme within their own court. Perhaps it would be also possibly defined in common law or set by precedent in common law, so that perhaps we should get some kind of clarification. I appreciate the motion and I think that it’s a valid one.
The Vice-Chair (Mr. Shafiq Qaadri): Thank you, Mr. Yakabuski, and just before opening the floor to Mr. Miller, I just want to be clear: The motion is to defer clause-by-clause consideration but to reconvene today at 2 p.m. for further consideration.
Mr. Paul Miller: In reference to Mr. Hillier’s request, the one that you were looking at, Randy, is 5.5. It’s four pages. With his legal background, Mr. Singh has done a superb job on this, with the assistance of legislative counsel. I think you’ll find it very informative and very good. It’s 5.5, if you want to address that. And we will get copies of all our amendments to you if you don’t get them, so you can further study them.
I can see the committee would like to speak more. I just notify you that we have about six minutes or so before we will recess. If you would like to entertain the motion to vote on, I am willing to do so.
Ms. Soo Wong: I want to get some clarification. The motion in front of us did not state the time of reconvening. I just heard you saying, Mr. Chair, that you want to reconvene this committee at 2 o’clock. Does it not mean the motion should reflect that?
The Vice-Chair (Mr. Shafiq Qaadri): We have to procedurally deal with this motion. Should you need to make changes to specify whether it’s today or next week, that would require not only a second motion but more photocopies.
Mr. Paul Miller: So the motion that Mr. Hillier has presented—and Ms. Wong said that she’s concerned about the 2 o’clock restart. So is this an all-day motion, or are we going to come back and do the same thing again at 2 o’clock and you’re going to put another motion in? What’s the status here?
The Vice-Chair (Mr. Shafiq Qaadri): Just procedurally, should you wish to adjourn, Mr. Hillier, until next week, we will need to vote on this motion. Then you’ll need to amend this motion and then re-present this motion.
The Vice-Chair (Mr. Shafiq Qaadri): Then you will need to create another motion specifying exactly when you would like to have the adjournment expire, meaning later today or next week, and then re-present it, entering interim photocopies and then voting.
Ms. Soo Wong: Mr. Chair, can I just make a comment? I came here to work this morning. I had every intention to go clause-by-clause, but at the last minute we have these submissions. I respect that. But let’s not defer, have another recess and come back. We’re here for a purpose, folks. I’m here for a purpose. I want to be very clear: If we’re going to move a motion to adjourn, that’s fine with me for today, but I want it to be absolutely clear, when I’m going to be voting on a motion, is it coming back at 2 o’clock or are we coming back next Thursday? I want it to be very clear what I’m voting for.
The Vice-Chair (Mr. Shafiq Qaadri): Thank you. While we certainly appreciate your intentions, Ms. Wong, we do have a motion before the floor that needs to be voted on before we can recess, so I would invite the committee to entertain this particular motion now.
The Clerk of the Committee (Mr. William Short): To clarify for everybody, the motion that’s on the floor right now would be, assuming it carried, to have clause-by-clause consideration delayed until the committee deliberated on whether or not the legislation breaches the independence of the judiciary. That could mean that we come back at 10 o’clock; that could mean we come back at 2 o’clock today; that could mean we come back next week.
If a member wants to move a clause to have us come back at a certain time, that would be either an amendment to this motion, or we vote on this motion and then someone would introduce a new motion saying that we come back whenever. As this motion stands right now, we would just be pushing aside clause-by-clause until another time.
Mr. Paul Miller: Listen, if people want to further study this situation—because there were a lot of amendments that came in late last night, and it’s only fair that people should have an opportunity to review them. But I do not want to be coming back at 2 o’clock. Either you’re adjourning for the whole day or you’re not, so this motion, obviously, will be defeated. If Mr. Hillier wants to put in another motion, we’ll entertain it, but at this point we’re dealing with that one? Thank you.
Mr. David Zimmer: I’d like to move an amendment to Mr. Hillier’s motion. The amendment would add, following “judiciary,” the words “the committee hearings shall be adjourned to the week”—what’s the week starting Monday?
The Vice-Chair (Mr. Shafiq Qaadri): That is interpreted as a friendly amendment. Is it the will of the committee that we acknowledge that? All in favour of that particular amendment addition? All opposed? The amendment carries.
Now I would invite voting upon the original, but now amended, motion. Is that the will of the committee? All those in favour of the motion presented by Mr. Hillier, as amended? Those opposed? Motion carries.
Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, 2012, Bill 34, Mrs. Meilleur / Loi de 2012 sur la sécurité des tribunaux, des centrales électriques et des installations nucléaires, projet de loi 34, Mme Meilleur JP-45