Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 50 - Evidence
OTTAWA, Thursday, December 10, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-42, to amend the Tobacco Act, met this day at 10:45 a.m. to give clause-by-clause consideration to the bill.
Senator Lorna Milne (Chair) in the Chair.
[English]
The Chair: Honourable senators, the matter before us is clause-by-clause consideration of Bill C-42, an act to amend the Tobacco Act.
Senator Bryden: I should like to make a motion.
In light of our hearings yesterday, the very thorough and careful questioning by the senators and, with all due respect, in particular by Senator Kenny, which brought forth much useful information, and having regard to the very open, informed and complete statements and position taken by the Minister of Health, I move that this committee report Bill C-42 without amendment.
Senator Kenny: I should like to associate myself with at least the last part of Senator Bryden's comment, that we move the bill without amendment.
The Chair: It is moved by the Honourable Senator Bryden that the committee dispense with clause-by-clause consideration of Bill C-42.
All those in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
I declare the motion carried.
It is moved then, by the Honourable Senator Mahovlich, that Bill C-42 be reported to the Senate without amendment.
All those in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
The motion is carried.
That is our business for the morning.
Senator Joyal: Last night, when we had the opportunity to have an exchange with the Minister of Health, you raised a very important point, related to the regulations within the purview of Bill C-71, and especially in relation to paragraph 42.1 of Bill C-71. I wish to associate myself with your suggestion and I wonder if it would be appropriate that, in your report to the Senate later today, you mention specifically that the minister has taken it upon himself to consider your request.
The Chair: I do not believe he did, Senator Joyal. I am of the opinion that since that part of Bill C-71 is not under amendment by this particular bill we really cannot properly do that. I intend though, personally, to take it up with the minister. I believe strongly that unless these bills that are coming through to this committee include, as a matter of course, the Senate on an equal footing whenever portions of them are to be brought back before the House of Commons, they will be so amended from now on, whenever possible. I do not believe it is possible to do it on this one. I do not believe we had that commitment from the minister. He said he would go back and consult with his colleagues.
Senator Joyal: That is exactly the point. I do not wish to overdo his statement. I read his statement as having taken it upon himself to consult with his colleagues and come back with an answer; no more and no less. I feel it should be reflected in the report. It is an important issue and, as you know, we all have concerns about those regulations that will have an important impact on the implementation of the legislation.
I feel that we should take this opportunity to re-state our preoccupation with that aspect, even though we did not get a firm commitment. If you could reflect in your report the exact stand of the minister, that would be fine with me. We should have the opportunity to make it the point and put it on the record.
Senator Grafstein: I take your point, Madam Chair, that the narrow terms of reference of this committee are to deal with Bill C-42. However, the minister himself opened up during questioning. We have listened to Senator Kenny's view about this issue over the past few months and have come to the conclusion that what we have is a series of legislative and policy matters that are really not stitched together. In response to a number of questions, the minister did allude to the fact that he was seeking to knit together is a comprehensive series of measures. I believe Senator Joyal's comment relates to how the various pieces of legislation and the various policies are to fit together to end up with the public interest objective, which is to have a comprehensive federal policy.
The minister has pieces of quilts here that he must stitch together. That is the thrust of Senator Kenny's input and that is the appropriate approach. We must take the pieces as they come. It is open to us, since the minister responded in that way, to make this point as an advisory. It is not a commitment. If this is the view of the committee, we can make a strong but simple statement to say that we are looking for a comprehensive policy, that there is a series of measures and this is an important measure that he undertook to review.
The minister also said that he would look more carefully at the whole question of transforming the federal power. Well, he did not say it, but that is what I infer from his comments, that he was looking to see how he could appropriately occupy the field without having conflict with provincial jurisdiction. Senator Nolin and Senator Beaudoin also asked that question. We are talking about the same thing.
We could say that the goal of the minister, and our committee will be to review this, piece by piece, as the regulations come up. I am sure Senator Kenny intends to do that, and other senators are also interested.
The Chair: We can do it in a paragraph.
Senator Grafstein: Yes.
Senator Kenny: I will speak about both issues. I am comfortable with what Senator Grafstein has to say. I obviously intend to pursue the issue on an ongoing basis.
However, I want to go back to what Senator Joyal had to say. I have been a member of at least three Senate committees now that have been recipients of assurances from ministers of the Crown that have not been worth the paper they have been written on, bluntly put.
I intervened last night to indicate that an assurance from the minister was insufficient. We require an assurance from the government and not from the minister. Furthermore, I would like the committee, of which I am not a member -- I am just here as an interested senator -- to seriously consider asking the leadership to convey a message to the leadership in the other place that we simply will not entertain bills in the future that are not written to accommodate both Houses. We should say, "Do not bother sending them over here because we will not address them." We would also like to have redress on the bills that have slipped by. A classic example would be the changes we made to the Auditor General's Act as it related to environmental reporting.
The Auditor General, perhaps quite properly, reports on financial matters to the other place. However, on environmental matters, it is quite appropriate that he report to both Houses and that is not how it is written.
I do not think we should put up with legislation that is drafted that way. Furthermore, if they are sending it over here, they should expect to see it come back amended every time, whether it is at the end of the year, the beginning of the year or the middle of the year.
The way to avoid that, is to simply have them draft the bill right the first time, and not have us get in a fuss about it.
The Chair: I quite agree with you, Senator Kenny. This committee has lately been making a point of saying that those sorts of things were included in the amendments to the bill and we are getting a bit of a reputation for amending bills partly because of it.
However, if we are going to make observations, then, they must reflect the evidence that appeared before this committee, so we cannot go as far as you would like to, Senator Kenny.
Senator Kenny: My suggestion did not actually reflect observations, so much as experience I have had on three other committees, other than this one. Some members may serve on those other committees and have had this same experience. It was really a suggestion to you, as chair of this committee, to raise the issue with our leadership.
The Chair: I have already done so.
Senator Kenny: They were not included in a report. Senator Grafstein's comments had to do with a report. Senator Joyal's comments are more appropriately dealt with through Senator Graham's office to whoever he deals with on the other side. I am fed up with it and would be happy to send back bills if they keep drafting them that way.
Senator Beaudoin: I agree with what has been said so far, particularly by Senators Joyal and Grafstein.
I raise the point myself because I do not consider that the position of Parliament and probably the government is clear-cut in law. They have more power than they think they have. The fact that it is now before the courts in Montreal is an indication that we are right to add one paragraph explaining what the situation is. There are three problems: The fact that the Quebec assembly has already legislated; the fact that Ottawa may occupy the field under the criminal law power; the fact that we have the question of publicity for tobacco and the Charter of Rights and Freedoms. Do not forget that freedom of expression includes commercial speech.
I cannot agree more with what has been said. This issue has to be decided by the Ministers of Justice and Health. It is not too much to have one or two paragraphs dealing with that.
We have to be very prudent, of course. The minister has not said that he will do this thing. He has said that he will consult and consider the whole problem.
Senator Bryden: I wanted to raise a concern. This fall, since we have come back, the work of this committee has been exemplary, in my opinion, even though I am part of it. I believe it has gained a significant level of respect in the other place among cabinet ministers, and indeed, among some members of the public.
The legislation that we have considered in some instances, for example, the Judges Act, was amended in a very substantial way. I think it was something that was missed by the drafters in the other place. This committee did an excellent job on that bill.
In relation to the Defence Production Act, there was a significant amount of concern but, in order to allow the bill to proceed, a small amendment was introduced which allowed at least the bill to come back on a regular basis. I believe the minister would have preferred to have seen it go through clean, but it was accepted. I think we had a very measured position in relation to that matter.
The bill that we just passed, the DNA Identification Act, we did not amend. However, we attached to that bill eight very significant conditions stating that we passed the bill on the basis that the ministry and the House of Commons will do the following things, either by an amending piece of legislation or by regulation. That is three bills so far. This is a fourth bill which is an amending bill to a large act that deals with a developing government policy. The bill itself is very narrow. It sets the times and the dates and the impact of phasing out tobacco sponsorship. My concern is that in using this two or three-clause bill to include in the report further obligations of the minister responsible, we will have the problem of continuing with this course of action. Consequently, soon we reach the point where our observations become just another set of observations and will not be treated with the respect accorded to them at the moment.
We may be outside the purview a bit. Is it possible that instead we include it in observations so that we could report one bill this fall without amendment? Is it possible that the undertakings, or whatever we are talking about here, be done by a letter from the chair of the committee to the minister indicating that it is the understanding of the committee that he would investigate the following things. The letter could state that the committee looks forward to hearing from him within some sort of reasonable time. The chair of the committee would have the opportunity to follow up. That may be a nicety that does not matter. I feel so strongly that this committee is gaining such significant respect. It has always been respected. That respect is growing, that is why we attract the best minds in the Senate.
Senator Grafstein: Okay, you win. I wavered for a moment, but you win.
Senator Beaudoin: It is very difficult to disagree.
Senator Bryden: For me, it is not a bridge to die on. If you want it to go into the report, fine. I am saying, if it could be done satisfactorily by an exchange of correspondence at this stage, then we will have run the gamut, from substantive amendments to a bill that was constitutionally out of whack in the judges' bill, to an amendment that we are comfortable with passing. We accepted it without amendment, but we accepted it almost conditionally. Of those eight conditions, we can say one is narrow.
We can accept it without amendment, and have the chair write to the minister, and say that as a result of our meeting on December 9, we look forward to following up on these observations and positions that you have taken.
The Chair: I see heads nodding around the table.
Senator Joyal: Madam Chair, I understand very well the preoccupation of Senator Bryden.
We are not suggesting amendments. I suggest that we reflect, essentially, on what the minister said yesterday. That is, he will consult with his colleagues, and he will come back to us -- no more, no less.
The Chair: Are you willing to leave it in my hands to follow that through, Senator Joyal?
Senator Joyal: I will answer your question. We insisted -- and when I say "we" I refer to the committee members collectively -- we insisted on having the minister before the committee because it is a bill. It is not just a study of policies. This is a bill, we are exercising our fundamental function which is to legislate. When we legislate, the sponsor of the bill, on the government side, is invited so that all circumstances are taken into consideration. We paid respect to the new Solicitor General. We managed the witnesses such that he came at the end of our deliberations so he had the time to reflect upon them. He saw fit to spend almost two hours with us, during a very heavy schedule, and we are grateful to him for that. However, he stayed because he felt he was having an important discussion with us.
I suggest that we not squeeze the lemon to get the last drop, just so we have it. We are legislators. We have to exercise sober second thought about legislation. We got a commitment from the minister, which is essentially to consult with colleagues and come back to us. The answer might be yes, the answer might be no, or the answer might be "yes, but" . The answer is up to him. We will not reproach him on the answer.
However, at this point, we must reflect on what happens in this committee. I am not suggesting that we put ourselves in a position whereby we diminish our credibility as an institution. We are in the Senate to exercise sober, second thought on legislation. If I come to the conclusion personally, and share that view with some colleagues, that there is an important element that still needs to be considered, I report it. We will see after that.
Senator Kenny has some perception about how the follow-up is exercised. I could agree or disagree on some aspects but it is only fair to report what happened to the bill while in committee. Some of our other colleagues who are not in the committee with us will want to know what is going on and what we can expect in the future, in respect of that important piece of legislation.
That is my only preoccupation. That is why I feel it should be reflected in our report.
The Chair: We have two points of view before us. One is that it should be left in my hands to follow through with the minister. The other point of view is that we should add observations to our report.
I have some qualms about adding observations to a report about something that is not within the purview of this bill and that we did not hear evidence on. That was my remark to the minister, taking the opportunity of having him here, about certain aspects of the previous bill.
I am in your hands.
Senator Beaudoin: You cannot untie the previous legislation with this bill. Do not forget what was decided in the case of the tobacco bill some time ago. It is important whether the bill is in accordance with the Charter of Rights, in particular freedom of expression. We discussed also whether it came under the criminal law power of the federal authority. The same problem remains.
When the minister said yesterday that he would consult, I was delighted. I do not consider that the debate, legally speaking, is over. The federal authority has a lot of powers, and I am not at ease with that.
Quebec has passed legislation. Quebec may occupy the field because it comes under health jurisdiction to a great extent. Quebec, like any other province, has property and civil rights among its competencies.
We still have the right to legislate under dangerous substances, and tobacco is a dangerous substance. We still have the power to legislate criminal law, and we will have to decide to what extent we will deal with the question of publicity. The problem remains in its entirety.
It is good enough to add one paragraph in the report, along the lines that Senators Grafstein and Joyal have suggested. There is a majority who are of the opinion that a letter may be sufficient. I would agree to that, but there is no comparison between a paragraph in a report to the Senate and a simple letter. I would prefer a paragraph, but I am open to other suggestions.
Senator Grafstein: I did not hear Senator Joyal asking the minister to give an undertaking. I heard that he wanted what the minister said noted -- especially what you and the staff are thinking -- that we can take it right out of the testimony. It is a one-liner, which is that he undertook to consult with his officials and his cabinet colleagues on this matter. The reason had to do with his earlier statement about a comprehensive look at that aspect.
I am of the school that we should limit our reports to the subject matter at hand. However, Senator Beaudoin put it quite well: If a preoccupation arises from the evidence that touches on or has an important part in the effectiveness of the legislation, not just the four corners of the legislation, then it is important for this committee to say to Parliament, not to the minister <#0107> after all, this is a report to Parliament -- here it is.
I am confident that you, Madam Chair, and our staff can do this through the steering committee. If it is done deftly, succinctly, pithily and briefly, we will make a point. The point is that we are interested in this legislation going forward, but it is part of a comprehensive picture.
I do not disagree with my colleague Senator Kenny, but on the other hand, this is also a reminder to ourselves. It is not just a reminder to the government that, by the way, here is an undertaking.
We have a way of divine retribution. If a ministry comes forward with another piece of legislation at the appropriate time and if we have some consistency within the committee, those undertakings come back to the committee. We can remind the minister. We have made it clear as an architectonic of this committee that we are not prepared to listen to legislation unless we listen to the minister. You will recall that the minister was reluctant to appear before the committee. Your good office, Madam Chair, insisted he would not have his bill unless he showed up -- and he did. We "convenienced" him.
Senator Moore:That is not quite accurate.
The Chair: That is a little too strong.
Senator Grafstein: Yes. I do not know that. That is second hand. I do not want my factual arguments to be clouded.
The Chair: There are other ramifications behind the whole picture. The minister was quite willing to come here. He did not realize that this bill was supposed to pass before Christmas.
Senator Grafstein: I withdraw my comment.
My fundamental point is that they will come back again. If it is on the record, at least we have a note to ourselves and to the Senate about it. I think a short paragraph is not inconsistent with what either Senators Bryden or Joyal have said.
Senator Bryden: Basically, I do not disagree with that.
Senator Nolin: We do not disagree on the substance, just how to manifest it.
Senator Bryden: I am somewhat concerned with the form. I am concerned that we not be perceived by policymakers and lawmakers as a committee which now has the bit in its teeth, and whatever goes over to the other place has to be fixed in some way to reflect that we have put our stamp on it. At some point, surely we will deal with a piece of legislation that, after we have considered it totally, we say yes, it is acceptable and we will report it without amendment.
I raise this point only as something more of perception than of substance. Given that this committee is highly regarded, I think this is something of which we need to be aware.
Senator Nolin: I support Senator Bryden. We can say more in a letter to the minister than we can put in a report. They will come back. They will have to come back. I support the letter.
Senator Fraser: I would, too, quite strongly. I speak as a complete newcomer, so my perception is still in some ways the perception of an outsider. Our credibility will be strengthened if we follow the course Senator Bryden proposes, for the reasons he outlines.
Senator Beaudoin: Why do we have a debate between the report and the letter?
Senator Nolin: We are not arguing on the substance. There is a question of how we deliver the substance.
Senator Beaudoin: We all agree on the substance. Some prefer a letter, but I prefer a paragraph. Legally speaking, there is no comparison between a letter that very few people will read and a report that some people may read. I will go along with the majority in this case, but I would prefer a paragraph.
The Chair: I am told that legally there is no difference. I can assure this committee that if we put this in the form of a letter, I will follow through.
Senator Kenny: I have no observations to make about a letter or a report. I think we are forgetting, though, that we have a lot of scope in third reading debate. A few pointed paragraphs to our colleagues in third reading debate will have more impact than either a letter or a report. I just hope that when senators speak at third reading, they set aside a moment or two in their remarks to drive home this point, because it a question of changing the culture in the institution a bit so we do not accept certain things in the future. That works by individuals standing and speaking to their colleagues.
The Chair: I would point out that observations have no procedural or legal weight, only political, and political is what my letter would be.
Senator Pearson: I wanted to pick up on Senator Kenny's comment. I propose that we draft the letter and a statement to be made either in your speech, madam chair, or by whoever else speaks to this matter at third reading.
The Chair: Is this agreed around the table?
Hon. Senators: Agreed.
The Chair: Before I adjourn the committee, I should like to thank everyone on the committee. This has been a hard-working fall for all of us. It has been a long, hard session, and we have done good work.
I also wish to thank our staff. They have been simply wonderful. Please send our thanks to the researchers of the Library of Parliament for their help on all of our bills.
The committee adjourned.