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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 3 - Evidence for March 28, 2001

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OTTAWA, Wednesday, March 28, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4, a First Act to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law, met this day at 3:40 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I call the meeting to order. Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill S-4, a first act to harmonize federal law with the civil law of the Province of Quebec?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the title stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the preamble stand postponed?

Senator Grafstein: I have tabled an amendment with the Clerk of the Committee. I should like, first, to tell you that the amendment is simple. I would then like to speak to it briefly, if I could. First, I wish to move an amendment.

The Chairman: We are asking if the preamble shall stand postponed and then, at the end of all the clauses, we shall go back to clause 1, then the preamble and then the title.

Senator Grafstein: All right.

The Chairman: Shall the preamble stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clause 1 stand postponed?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clauses 2 to 178 carry?

Senator Joyal: I have no objection that the whole substance of the bill be put to a vote, except for clauses 4 to 7, where I should like to register my opposition to those clauses of the bill.

The Chairman: All right, clauses 4 to 7 inclusive.

Senator Joyal: Yes.

The Chairman: In that case, honourable senators, shall clauses 2 and 3 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall clauses 4 to 7 carry?

Senator Joyal: Again, if I may intervene, I should like my opposition to be registered in the minutes of the proceedings of this committee.

The Chairman: All right.

Shall clauses 4 to 7 carry, then? We will register Senator Joyal's opposition to these four clauses in the minutes of the committee.

Senator Grafstein: Perhaps Senator Joyal could give us one minute concerning the nature of his objection; in that way, it will give us an opportunity to see whether or not we agree with him.

Senator Joyal: With your permission, as I stated, with the discussion and exchanges we had with the Minister of Justice,Ms McLellan, I mentioned that in both systems, the civil and common law systems - that is, the civil law system in Quebec and the common law system that is in Ontario and in British Columbia - there are two cases that question the validity of a definition of "marriage" as the one that is included in clause 5 of the bill.

My suggestion was, since this is the first step of harmonization and the bill will be followed by others, to stand the harmonization on that issue until we get the final decision of the Canadian court on this.There is no urgency at this point to deal with clauses 4 to 7.

Taking into account the 1999 decision of the Supreme Court of Canada in M. v. H., I am of the opinion that there is a presumption in the definition at clause 5 that is not constitutional according to section 15 of the Canadian Charter of Rights - that is, the principle of equality and the benefit that issues therefrom. My suggestion in this regard is that we stand that aspect of the bill because at this point the courts in both systems are seized with that decision.

The Chairman: Is there any further debate on this point?

Senator Beaudoin: If I remember correctly, this objection was set aside by one of our experts, in the sense that it is true that it is before the court but it is not related. I do not remember exactly what was said. I do remember that it is in this proposed act for certain purposes. However, if ever we must change the law of the land on this it will be in another statute that it will be done.

It is a question of procedure. I understand your point of view completely. I have the greatest respect for it, but I thought that after the hearing we were agreed, at least a certain majority here, to vote on those certain clauses as they are.

Senator Joyal: I would not, in any way whatsoever, stop my colleague from supporting those clauses of the bill. Personally, I am of the opinion that the interpretation that should be given toM. v. H. on the principle of equality covers not only the definition of common law couples but of married couples. It is on that basis that I sustain that this interpretation of clause 5, as it is stated in the Bill S-4, is not valid according to section 15 of the Charter. That is my essential point.

Since that issue is in front of the Court of Appeal as a reference from the British Columbia Lieutenant Governor in Council, and it is expected that it will go to court sooner rather than later, I submit that at this point it would be more advisable to stand this harmonization on that issue of marriage.

The Chairman: Are we ready for the question?

Shall clauses 4 to 7 carry then? All in favour?

Some Hon. Senators: Agreed.

The Chairman: Opposed? Senator Joyal.

Senator Cools: I agree.

The Chairman: You are opposed?

Senator Grafstein: No, I am not opposed. When a senator raises a substantive issue of constitutional law and says that a provision with which we are dealing contravenes that, the position that I have taken in the past on several bills in the Senate, as you are aware, would be to abstain. I have not had an opportunity to fully explore this, so I cannot come to an independent opinion; however, when Senator Joyal, or any other member of this committee, has substantive issues it causes me concern. I will not intervene with the vote because I have not satisfied myself that I agree with the constitutional issue. In the absence of that, I will abstain.

The Chairman: Perhaps we will do a roll call, then.

Senator Cools: I am trying to clarify exactly where we are.

The Chairman: We are voting on clauses 4 to 7, which are the clauses that deal with marriage.

Senator Cools: Have we voted on clauses 1 to 3?

The Chairman: We have voted on clauses 2 and 3.

Senator Cools: We are holding, as usual, on clause 1, and we have voted on clauses 2 and 3.

The Chairman: Yes.

Senator Cools: We are about to vote on clause 4.

The Chairman: We are about to vote on clauses 4 to 7.

Senator Cools: Thank you.

The Chairman: These are the clauses at the bottom of page 2, on marriage.

Senator Cools: I am in support of those.

The Chairman: Since there is debate we should, perhaps, have a roll call. Shall clauses 4 to 7 carry?

Ms Jill Anne Joseph, Clerk of the Committee: Senator Milne?

The Chairman: Agreed.

Ms Joseph: Senator Beaudoin?

Senator Beaudoin: Agreed.

Ms Joseph: Senator Buchanan?

Senator Buchanan: Agreed.

Ms Joseph: Senator Cools.

Senator Cools: Agreed.

Ms Joseph: Senator Fraser?

Senator Fraser: Agreed.

Ms Joseph: Senator Grafstein?

Senator Grafstein: Abstain.

Ms Joseph: Senator Joyal?

Senator Joyal: Opposed.

Ms Joseph: Senator Moore?

Senator Moore: Agreed.

Ms Joseph: Senator Gustafson?

Senator Gustafson: Abstain.

Ms Joseph: Senator Pearson?

Senator Pearson: Agreed.

The Chairman: Clauses 4 to 7 are carried.

Shall clauses 8 to 178 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Therefore, clauses 8 to 178 carry.

Shall clause 1 carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Shall the preamble carry?

Senator Grafstein: I have tabled a motion with the clerk. Perhaps I will take a minute or two to speak to it. It is not a difficult motion; essentially, the purpose of the motion is to delete the preamble.

There are a number of grounds for proceeding in this way. First, having reviewed the evidence, I have come to the conclusion that it seems clear that the preamble, based on the evidence that we received and the comments from honourable senators, is not a simple statement. It is a statement that is there for reasons, according to the department and to the officials, and I will not attribute those reasons but they include some political reasons, and so on.

My experience as a lawyer and counsel, in reviewing legislation, is that the usual practice in the common law - and I am speaking from my common law experience - is that a preamble is not normally put into a statute. It is not put into a statute because a statute speaks for itself. We have been told, luckily, by the department last week, that the bill will not be in any way, shape or form hindered by the absence of the preamble. At the March 22, 2001 meeting of this committee, Senator Moore asked the following question:

Am I correct in saying that it would not matter to you if any of those amendments were made or not?

Mr. DeMontigny's answer to that question was as follows:

It would not change the substance of the bill. We say that with all confidence. The bill deals with harmonizing the federal statutes with Quebec's new Civil Code, and the preamble is there only to explain and to give context to this exercise - nothing more, nothing less.

Essentially, we have voted, a bill and the preamble, in effect, does not change what we have done. The usual practice under the common law - and I see some senators nodding inagreement - is that where you see a preamble is usually when the proposers of the bill wish to give interpretative direction to the application of the bill.

Let me give you some concrete examples. One example is under the Broadcasting Act, with respect to the CRTC, for example. There is normally a preamble in order to give direction to the CRTC, a regulatory tribunal, as to what goals they should pursue. The same applies to the National Transportation Act. There are a number of acts where the government seeks to give direction, either by direct order in council or by general direction, to say that Parliament believes when you sit down and interpret something you should follow these particular goals and these priorities. That is not the case here. It is not necessary here. We have been told by the department that it is not necessary here.

Then we go to the evidence and we find that the evidence is conflicted, where some say that a word or expression means one thing and others say it means something else.

As a matter of fact, Senator Moore has just brought to my attention something that I had not seen before. If you look at the fourth "whereas" under the preamble to the bill, it reads:

WHEREAS the full development of our two major legal traditions gives Canadians a window on the world and facilities exchanges with the vast majority of other countries;

It does not mean anything, honourable senators, which brings me to my next point.

According to Erskine May and Beauchesne, when you deal with legislation, be it preambles or amendments, there must be two tests. It must be intelligible, according to Erskine May, at page 346 of the 22nd edition; and, second, there must be an internal consistency. That also is supported by Beauchesne, which essentially states that the reason for the preamble is the intended purpose, that it is not there to make a descriptive statement but rather for a purpose.

We then have the dispute about the meanings of particular words. We will deal with an amendment that Senator Joyal will bring forward in a moment, but it strikes me that we have a huge division in this committee, as well as with the evidence, as to what those words mean.

"Distinct society" can mean something to some people, while "unique society" means something else. There is an inconsistency, a substantive inconsistency, based on the evidence given by the department to say that they adopted this preamble for two reasons - first, because it was a resolution of Parliament.

If you turn to the resolution of Parliament that was adopted, it is not the same one. There they talk about distinct society, and here the preamble talks about unique society. The words "distinct" and "unique" are quite different. I pointed out that the Oxford dictionary defines "distinct" as meaning different and "unique" as meaning unequalled. They are different words. Again, there is not an internal consistency based on the rationale for these particular statements.

Then we get to the question of interpretation. For anyone to say that a legal document will not have any impact is something else. Again, the department, on the one hand, supports those who believe that an interpretation is in the recital, and others. The testimony is indecisive about that. However, it is certainly clear to me and to others who know about this. At a March 22, 2001 meeting of this committee, Mr. DeMontigny, in response to a question by Senator Cools, said the following:

As for your first question, maybe I have not expressed myself clearly enough. I do not think I have ever said that preambles have no legal consequences. They do sometimes have legal consequences in that they are used, if thereis ambiguity in the substance of the law, to interpret problematic words, sentences and sections.

That is a proper statement, namely, that the preamble is used by the courts as a directive on how to apply the law if there is a conflict.

Here is where the internal consistency arises. On the one hand, we have within the substance of the bill itself - clearly this is the intent by the drafters, there is no question about this. The bill says "to harmonize," to bring together different concepts.

The bill goes further than that, which is much more interesting, under clause 8. Again, I want to thank the officials for saying this. They say there is something new here, which is not to deal with, in effect, two solitudes or "distinct" societies. The drafters are trying to set up a new notion - I do not like using the word hybrid; the word is bijural - which is taking the two jurisprudential systems and trying to merge them in a way that is not offensive to either. That is a laudable objective. That is the purpose of clause 8, namely, to change the Interpretation Act, to make a new measure of interpretation based on bijural concepts.

Therefore, I come to the conclusion that if the recitals are not clear they may be divisive. The recitals may be inconsistentwith the heart of the legislation and may, in fact, provoke misinterpretations. If the preamble is deleted, the bill will speak for itself. The courts will be guided by proposed section 8 - which I believe is somewhat inconsistent with the preamble - which is to proceed on the bijural principle, and ultimately end up with the harmonization of the two systems under the federal law.

I was not here for last Thursday's meeting, Madam Chairman. You said the following, and it is not clear to me.

The Chairman: Just to wrap up, would it be fair to say, Mr. DeMontigny, since this whole project is designed to clarify federal law, it is the purpose of the bill to eliminate any ambiguity in the federal law and that, therefore, the preamble is only there to set out the appropriate context and is unlikely to be used?

Mr. DeMontigny: I think you are absolutely right.

I do not think it is here to clarify federal law, nor is it here to eliminate ambiguity in federal law. The statement of the principle is to harmonize federal law.

I am not being critical of you, Madam Chairman. What you have summed up indicates the difficulty that people will have when they look at this preamble, which is that it is not as clear as we would like it to be. Senators have a duty to themselves, as well as to the regions that they represent, to remove ambiguities from proposed law and those areas that will open up greater ambiguity. I believe the preamble will do this. We will end up with a clear-cut statement that this is to harmonize a particular bill with clear directions to the court based on the proposed act itself as to how it should be interpreted as to opposed to having a conflict that could occur if the recital is there.

I will not go through the other comments about why the recital is there. I am sure Senator Joyal and others will do that.

Hence, I move a simple amendment, as follows:

That Bill S-4 be amended:

(a) on page 1, by deleting the preamble; and

 

(b) in the English version of the enacting clause, on page 2, by replacing line 1 with the following:

 

"Her Majesty, by and."

 

The Chairman: Senator Grafstein has moved his motion in amendment and we are now open for discussion.

Senator Beaudoin: There is a disagreement right at the beginning. It is not the purpose of the bill to harmonize civil law and common law. That is not the bill's purpose. Civil law is the private law in Quebec. Common law is the law in all the others province at the private level. This will remain. It has been like that since Confederation. In Quebec, it has been like that since the Quebec Act.

What is this bill doing? This bill is harmonizing the federal law with the civil law of the Province of Quebec, period.

Senator Grafstein: No. Go on, please.

Senator Beaudoin: I have the greatest respect for your thesis.

Senator Grafstein: We have already approved the title. Just continue.

Senator Beaudoin: Please, give me a chance to say what I want to say and what the law, in my opinion, is saying.

The bill is to harmonize the federal law with the civil law of the Province of Quebec and to modify certain acts in order to ensure that each language version takes into account the common law and the civil law system.

Civil law will remain civil law; common law will remain common law. However, the federal statutes, the federal laws of Canada, will be harmonized with the genius of the civil law in Quebec, as it is already harmonized with the common law genius in the other provinces. It is beautiful. I do not see any problem at all. We should have had this bill for a long time.

[Translation]

I congratulate the officials for having drafted that bill quite correctly. A preamble, in my opinion, may be there or not be there. It would be so unfortunate not to have that preamble in the bill, the first, since the beginning of the Confederation of Canada, to harmonize the federal legislation with the Civil Code of Quebec.

Not only do I support the preamble, but I am also very pleased that there is one. Do not forget that we are making history now. Civil law, the French civil laws, was reintroduced in Quebec by the British Parliament in 1774. It may be one of the reasons why our ancestors remained loyal to the British Crown instead of joining the Americans. I think it was the case.

Finally, it is a law, a bill which is in the heart of history. So, that a bill like this one be preceded by a preamble stems from the very nature of things. This is an historical bill.

I am not discussing the terminology here. That has already been done. I think that each one of the whereas has its own rationale, including the second one where it is clearly said that this harmonization is for the Province of Quebec and that our Constitution grants the Province of Quebec some legislative powers, namely under clause 92.13. It says that the harmonious interaction of federal legislation and provincial legislation is essential.

I want to come back on the concept. The intent is not to change the civil law and the common law. It is not to harmonize civil law with common law. The intent is to harmonize the federal legislation with the civil law system of the Province of Quebec. There is already some harmonization with the common law of the other provinces. I hope that civil law and common law systems will remain as they are. They are the two finest systems in the world. That is stated in the preamble. The intent is not to harmonize the two systems, but to harmonize the federal legislation with the Civil Code of Quebec and that is what the preamble says.

Finally - and I do not want to take hours and hours to explain it -, that is the first bill of that nature. Others will follow. For the first time since the Confederation, we are going to harmonize the federal legislation with the Civil Code, which has its proper genius, just like the common law has its own genius.

I do not see why we should vote against that preamble. I know that some people maintain that the second whereas could be different. It could be. I have a good knowledge of the history of my country, hopefully. For me, that preamble mirrors properly the great values of Canada and of each one of its provinces. I am going to vote in favour of the retention of the preamble.

[English]

Senator Pearson: I must speak to this as a non-lawyer. Most Canadians are non-lawyers. Therefore, insofar as laws are something that we are supposed to be aware of and educate ourselves about, perhaps being a non-lawyer is not a bad thing in this particular case. I, too, support the preamble. I support it for a number of reasons, some that concur with what Senator Beaudoin has said. I do think this is an historic event. I think it would be a lost opportunity if there were not a preamble. I think a preamble is an opportunity to educate, to some extent, the people who use the law and the public in general.

I find that the most persuasive and interesting presentations that we have had in listening to the witnesses was the description about the impact that this harmonization exercise will have on the wider world. For me, this is an important preamble in terms of opening the window to the wider world. The fact that we have both civil law in English and in French and common law in English and in French and that we found in federal law that capacity to harmonize and absorb the genius of both systems or respond in a different way to the genius of both systems is exciting. I found those professors who described how that would be useful internationally impressive. That is an important thing.

When I return to this question of unique character, I found the professor who described to us what "society" is to be impressive. A society is people who are kept together by certain kinds of bonds. If you live in the Province of Quebec, it does not matter whether you are English or French. That is not the issue. If you live in the Province of Quebec, your private interactions are guided by the civil law. The same is not so if you live in the Province of Ontario. There is no other society in Canada, in any Canadian province - and they mentioned both the Province of Quebec and Quebec society - that has that characteristic. Therefore, for me, it is unique.

Hence, I would find it hard - and I would certainly not try to describe the exact characteristics that are different in those who are governed by the Civil Code from those who are governed by common law, but we certainly see it when we look at other legislation that comes in front of us. Things work out somewhat differently in Quebec than they do in the other provinces. Therefore, for me not only does it not trouble me but also I think it is important that we state this. Senator Beaudoin talks about the genius of it. That is it. It is the spirit of it. Otherwise, law does not affect us at all. But law does affect us. We are governed in society - private business, whatever interactions take place - within those different codes. I am happy with it and wish to retain the preamble.

[Translation]

Senator Joyal: I listened carefully to Senator Beaudoin's comments. None of us is questioning the purpose of the bill. On the contrary, we did have an opportunity to vote on it at second reading. It would be superfluous to insist on that at this point in time. However, I find it amazing that Senator Beaudoin supports the preamble without recognizing that the problem is essentially related to the concept of the unique character of Quebec society. We know it, we do not have to beat about the bush, that is where lies the problem. I understand the good intentions of Senator Pearson who wants to recognize that Quebec has a Civil Code.

In my opinion, we should proceed the same way as the Canadian Constitution does. It is the reference guide for those who want to recognize the existence of the Civil Code in Quebec and of a magistrature to interpret it. It is clause 98 which says that, and I quote:

[English]

The Judges of the Courts of Quebec shall be selected from the Bar of that Province.

It does not say: "The judges of the courts of Quebec shall be selected from the bar of that province because of the unique character of the Quebec society." The Constitution does not say that. It does not need to say it. A legal text has to be factual neutral.

We all know, Senator Pearson, that the debate over the unique character of Quebec has divided Canadians. In fact, Canadians have voted two times against it. They refused to endorse the Meech Lake Accord. There was some substantial support for it, but at the end it failed. Historians are there to pronounce on it. The Meech Lake Accord was not endorsed, as my colleague Senator Buchanan will remember, not because people were not devoted to it and did not want to achieve constitutional settlement, and so on. I think the people were there in good faith, but it did not materialize. That notion was left pending.

Then there was the Charlottetown Agreement, and Canadians voted against putting that in the Constitution. Canadians have pronounced on this. My submission to you -

Senator Pearson: Well -

Senator Joyal: You can say "well," but it does not change an iota the situation of the Quebec province. Quebec still has a Civil Code. They adopted a revised Civil Code in 1984 as being modern and accurate for the perspective of the Quebec government and the Quebec people. At this point in time, we do not need to put it in a bill that is, essentially, an exercise of the federal government's responsibility to reflect both traditions in its legislation. That is the only point I am making at this point.

We know that this is a divisive concept. We are having a debate here; we will have a debate somewhere else. There will be other debates on this very notion until the Canadian people decide to settle it, if they are ever called to do so at some point in the future.

We are not talking about facts here, Senator Pearson. We are talking about political concepts. That is where you and I differ on this. You are talking about the facts - namely, that in Quebec there is a Civil Code and in the other provinces there is the common law fluidity. We recognize that. We are saying that by using only that concept you are making a political statement that is very debatable and has been debated and will continue to be debated. That is where you and I differ.

The Chairman: Fortunately, we are able to disagree in the Senate chamber.

Senator Joyal: I listened to Senator Pearson carefully and I would be very respectful if you will listen to me until I finish.

Senator Cools: It seems to me that we have heard conclusively that there is absolutely no disagreement on the substance of the bill, that there is only disagreement on the question of the preamble. We have also been told that the purpose of preambles is to provide interpretive direction.

If we have total agreement on the substance of the bill - the problem is with the preamble - it would seem to me to be in the interest of goods politics to, perhaps, look at amending the preamble. Senator Grafstein has brought forth an amendment that proposes the deletion of the preamble.

I have heard what Senator Beaudoin has said quite clearly. It is consistent with his opinion on the Charlottetown Agreement. Perhaps that group of constitutional lawyers who approved the Charlottetown Agreement should enter the debate at some point in time. However, it would seem to me, honourable senators, that a lot of good could be had and a lot of bad would be avoided if you would simply agree to delete the preamble.

Senator Fraser: This particular phrase was not taken from the Meech Lake Accord or from the Charlottetown Agreement. It was taken from the Calgary declaration, which was created by the premiers of all the provinces, except Quebec. It was exhaustively debated across the country by ordinary people - not just by premiers or even just by elected representatives - and won support across the country.

Senator Beaudoin: Let me remind of the famous motion that was adopted by the Senate and the House of Commons. It read as follows:

Whereas the People of Quebec have expressed the desire for recognition of Quebec's distinct society;

(1) the House recognize that Quebec is a distinct society within Canada;

 

(2) the House recognize that Quebec's distinct society includes its French-speaking majority, unique culture and civil law tradition;

 

(3) the House undertake to be guided by this reality;

 

(4) the House encourage all components of the legislative and executive branches of government to take note of this recognition and be guided in their conduct accordingly.

 

So although some say that the phrase is based on the Calgary declaration, it is probably also inspired by what I have just read you, the famous motion. This has never been set aside by the House of Commons and the Senate. I wanted to say that. I do not want to start a new debate, but the fact is that we have that and it is still in our records of both Houses of Parliament. Certainly the second "whereas" has been inspired in part by that. That is the only thing I wish to say. Whether or not we should keep it is another thing. However, the fact is that it is there.

Senator Joyal: On that point, I should like to be clear. Senator Fraser referred to the fact that the second "whereas," in her opinion, deals with the Calgary declaration, is that correct?

Senator Fraser: I said that is from where the phrase was taken.

Senator Joyal: Exactly. I can see some similarity there. At the same time, we cannot say that it comes from the Calgary declaration and also from the resolution. Those texts legally are two different texts completely.

[Translation]

We cannot say, maintain or suggest that the 1995 resolution binds the current Parliament. In my opinion, that resolution has no binding power on the current Parliament. Its binding power do not extend beyond the life of the Parliament which adopted it. Should we want to direct the same instructions to the Canadian Parliament of today, we would have to reintroduce it.

[English]

When Parliament is prorogated through an election, the instructions that were given from Parliament to the government die the next day. The next government is not bound to follow the same instructions. The following government may not be the same government.

This has absolutely no legal bearing today in reference to the recognition of Quebec within the Canadian federation.

Senator Beaudoin: I do not disagree on this. The expression "civil law tradition of the Province of Quebec" is the same expression that I see in that resolution. "Civil law tradition" is also found in the resolution. As I have said many times, the only word we disagree with and you disagree with is "society."

Senator Joyal: "Distinct society" or "unique society," yes.

Senator Beaudoin: We disagree. The Senate will decide. The rest is the same all the time, whether it is in the Calgary declaration or in the motion before the two Houses. I understand your argument completely. I have the greatest respect for it, but it is there and we may use it in the preamble. I think a preamble is a good thing in that particular case.

Senator Fraser: I was not privileged to be a member of this place when that resolution was passed but I was living in Quebec in the shaken aftermath of the referendum vote. I remember how those resolutions were taken in Quebec. They were not taken as little empty formulas that would die or would have no meaning. They were taken as a solemn political commitment - political in the best sense of the word - not something that would have a shelf life of 18 months and then disappear.

Senator Cools: On a question of order, such resolutions only have the life of the Parliament in which they are passed. In case anyone is mystified about that, that is the nature of resolutions. A resolution dies when a Parliament dissolves.

Senator Fraser: That was not my point.

Senator Cools: It does not really matter. The point is that there is nothing binding on anyone at this point in time.

The Chairman: I see no further discussion. Are we ready for the question on Senator Grafstein's amendment?

It has been moved by Senator Grafstein -

Senator Grafstein: Dispense!

The Chairman: Are you ready for the question?

Hon. Senators: Agreed.

The Chairman: Is it your pleasure to adopt the motion? If there is dissent, we shall have a roll call.

Senator Joyal: Roll call, please.

Senator Beaudoin: What is before us is an amendment.

Senator Fraser: No. Roll call.

Senator Cools: Yes, Senator Grafstein's amendment is before us.

The Chairman: We have Senator Grafstein's amendment before us.

Senator Cools: That is what we are voting on now.

The Chairman: We will have a voice vote first, and if I hear a dissenting voice, then we will have a roll call.

All those in favour of Senator Grafstein's amendment?

Some Hon. Senators: Yea.

Some Hon. Senators: Nay.

The Chairman: We shall do a roll call.

Ms Joseph: Senator Milne?

The Chairman: Against.

Ms Joseph: Senator Beaudoin?

Senator Beaudoin: Against.

Ms Joseph: Senator Buchanan?

Senator Buchanan: Against.

Ms Joseph: Senator Cools?

Senator Cools: For.

Ms Joseph: Senator Fraser?

Senator Fraser: Against.

Ms Joseph: Senator Grafstein?

Senator Grafstein: For.

Ms Joseph: Senator Gustafson?

Senator Gustafson: I will abstain.

Ms Joseph: Senator Joyal?

Senator Joyal: For.

Ms Joseph: Senator Moore?

Senator Moore: For.

Ms Joseph: Senator Pearson?

Senator Pearson: Against.

The Chairman: Those "against" have it. The motion in amendment is defeated.

Are there any further amendments to the preamble?

Senator Joyal: Yes.

The Chairman: Senator Joyal has some motions in amend ment. While these are being passed around, Senator Joyal, do you want to read your motion in amendment into the record, or shall I?

Senator Joyal: You may read it.

The Chairman: It has been moved by Senator Joyal:

That Bill S-4 be amended in the preamble on page 1

(a) by adding before line 1 the following:

 

Whereas Canada is exceptionally enriched by the coexistence of two legal traditions, the common law and the civil law;

 

Whereas the common law and the civil law must each grow and develop in English and French to find their fullest expression in a Canadian context;

 

(b) by replacing lines 4 to 7 with the following:

 

Whereas the Civil Code of Québec is the principal expression of the civil law tradition in Canada;

 

(c) by adding after line 22, the following:

 

Whereas the objective of the Government of Canada is to facilitate the full development in federal legislation of the common law and civil law traditions in their English and French versions.

 

Is there any debate on this?

Senator Joyal: I wish to draw the attention of honourable senators to another page that is being circulated, a page that bears no title but is, in fact, a consolidation of the various "whereas" clauses that I suggest be added to the preamble, in the order they would appear in a new text. You will notice that the fourth "whereas" has been deleted to be replaced by the following whereas:

Whereas the Civil Code of Québec is the principal expression of the civil law tradition in Canada.

In other words, I want honourable senators to have an opportunity to have a clear reading of how the new text would present itself.

The Chairman: How the preamble would read?

Senator Joyal: Yes. It is difficult when we have various amendments dealing with long sections such as the preamble to understand where they would fit in each of the recitals.

The first one is needed to state the very fact that characterizes Canada. What, essentially, are the characteristics of the country? They are the fact that Canada is enriched by the coexistence - in other words, both systems exist or co-exist. They have a different existence. That is what "coexistence" means in Canada - that is, in common law and the civil law. First, it affirms a fact. That is where everything starts. It is the coexistence of two legal tradition that is characteristic of Canada.

The second "whereas" deals with the fact that each of those systems expresses and grows in English and in French. It is very important.

[Translation]

I am referring to Mr. Perret, the dean of the Faculty of Law of the University of Ottawa.

[English]

He clearly stated that there are millions of francophones who use the common law in English as there are a million or so English-speaking Canadians living in Quebec that use the civil code in English. In other words, it is important to recognize that both legal traditions express themselves in both official languages of Canada. This is an important element of the reality that we want to recognize.

The contentious "whereas" is the one dealing with the second "whereas" of the proposal, the one dealing with the Civil Code of Quebec. I submit to honourable senators that I tried to put it in the most neutral term possible. That is to say, that "the Civil Code of Québec is the principal expression of the civil law tradition in Canada." In other words, the Civil Code of Quebec exists in Canada and it is in its principal expression of the tradition of civil law in Canada. In other words, we do not have to qualify that it characterizes Quebec society. It is quite obvious that it is the Civil Code of Quebec that is the bearer of the civil law tradition in Canada.

As I suggested earlier, that is in absolute conformity with section 98 of the Constitution, which states, "The judges of the Courts of Quebec shall be selected from the Bar of that province." It is quite clear. It is neutral. There is no reference to a socio-political concept of Quebec being a distinct society within Canada for the language institution, or whatever. There is no reference to the Calgary declaration, and so on; is it neutral.

The last "whereas" states:

Whereas the objective of the Government of Canada is to facilitate the full development in federal legislation of the common law and civil law traditions in their English and French versions.

It is important to recognize that the federal government assumed a specific leadership role in making it easier for both traditions to express themselves in both languages. We have the department officers - and I see Mr. Bisson in the room - stating how important terminology is and how much the Government of Canada has done to develop the terminology so that the common law expresses itself in both official languages. It is fair for the objective of the overall harmonization initiative to recognize that. I do not think that is contentious, either.

If you look at the final text that it would produce in terms of a preamble, you will see that on the page that has no title or identification the first two "whereas" clauses in italics are the new ones; the third one is in the bill; the fourth one is the one that we delete; and the one that follows it, in italics, is the substitute to the previous one. If you go down to the bottom of the page, the last two are the new ones that are introduced in a way that the whole recital is consequential in terms of its logic, starting with the fact that we recognize the fact that Canada is exceptionally enriched by the coexistence of two legal traditions and the consequences that we draw from that.

I submit that to honourable senators as a way to solve our difficulty.

[Translation]

Senator Beaudoin: It is the third Whereas in italics that I do not understand very well.

[English]

Whereas the Civil Code of Québec is the principal expression of the civil law tradition in Canada.

[Translation]

It is a total expression, not a principal one. The whole province of Quebec is governed by the Civil Code; only the province of Quebec is governed by it. I do not understand the wording. In the preamble, it says that the civil law tradition of the Province of Quebec finds its principal expression in the Civil Code of Quebec. That is true. That reflects the unique character of Quebec society. I think that is a fact.

But here, you say that the civil law tradition in Canada is in the Civil Code of Quebec. I do not understand why. In Canada, we have a civil law system which is restricted to one province, and we have a common law system in the nine other provinces. That makes two great traditions in our country. I have some difficulty with that wording.

[English]

The Civil Code is the principal expression of the civil law tradition in Canada.

Senator Cools: Yes.

Senator Beaudoin: Yes, because Quebec is in Canada, but it is in Quebec, too.

Senator Cools: But is not Quebec in Canada?

Senator Beaudoin: Of course it is.

Senator Cools: Precisely.

Senator Beaudoin: Why does it set Quebec aside?

Senator Joyal: It does not set Quebec aside. I do not think the proposal is to set Quebec aside.

[Translation]

Essentially, the text says that there are two different legal traditions in Canada, the common law and the civil law. The civil law tradition, in Canada, is expressed by the Civil Code of Quebec. Why? Because the Civil Code of Quebec is not the only expression of the legal tradition in Quebec. There are other elements in the civil law in Quebec which find their existence elsewhere than in the Civil Code. That is what you were maintaining in your interpretation. Please read that "Whereas" again.

[English]

"The civil law tradition of the Province of Quebec... finds its principal expression in the Civil Code of Québec..."

The civil law tradition is not only expressed in the Civil Code. It is mainly expressed in the Civil Code but not only in the Civil Code. I think you agreed to that in a question that you asked our previous witnesses.

The statement there is a factual one, namely, that "the Civil Code of Québec" or in the Province of Quebec - and I put in "Quebec" to reflect the mention of 1998 in the Constitution. - "is the principal expression of the civil law tradition in Canada." In other words, that is where, in Canada, you find the civil law tradition. That is in the Canadian context. It does not address itself to the society nor does it characterize or not characterize. Essentially, it is a factual statement. I thought that was the best way to state the proposal.

[Translation]

Senator Beaudoin: I can understand it, but it is a different idea. On the one hand, it says: "The civil law tradition of the Province of Quebec [...]," and then "... which finds its principal expression in the Civil Code." Yes, there is a civil law tradition that can extend beyond the Civil Code of Quebec. What the drafters wanted to express here is that the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code, reflects the unique character of Quebec society.

On the other hand, the thing is viewed differently. It says that the Civil Code of Quebec is the principal expression of the civil law tradition in Canada - it is true that there is a civil law tradition in Canada. But the Civil Code is its only expression.

Senator Joyal: Yes, the Civil Code of Quebec is its principal expression, but there is another expression of law outside Quebec.

[English]

"The civil law tradition of the Province of Quebec... finds its principal expression in the Civil Code of Quebec." It does not say "finds its expression;" it says "its principal expression." If it is "principal," it means that there is an accessory, that is to say, are other ways to express the tradition. That is why it is stated very clearly here that the civil code is still the principal expression of the civil law tradition in Canada. We state that. There is no question, there is no dispute about this.

One says it by putting the second member of the sentence in first; this one puts it after. That is why you feel some doubt that we are not expressing everything of the civil law tradition in Quebec.

[Translation]

Senator Beaudoin: Either the two paragraphs mean the same thing, or they do not. If it is the same thing, I prefer the wording which I have in front of me rather than the one of the amendment. That is all I am saying.

[English]

Senator Joyal: I am not negotiating here with Senator Beaudoin.

The Chairman: Not seeing any other senators on the list who wish to speak, I am allowing this exchange to continue.

Senator Grafstein: I have a brief addition when this debate is concluded.

Senator Cools: In all fairness, it would be nice if people other than Quebecers were in on this debate.

The Chairman: I am waiting for other senators to indicate their interest in taking part in the debate. I now have Senators Grafstein and Pearson on my list.

Senator Joyal, finish your part on this exchange and then we can come back on a second round.

Senator Grafstein: If you take a look at what we have already agreed to, which is "a first act to harmonize federal law with the civil law of the Province of Quebec," that is consistent with recital (d). Essentially, where is the federal law? What is the site of the federal law that we are harmonizing? Where does it exist?

Senator Beaudoin: The Crown Liability Act is a good example.

Senator Grafstein: Where does the federal law exist?

Senator Beaudoin: In the federal statute.

Senator Grafstein: But where does the federal law exist? Where does it operate?

Senator Beaudoin: It is the legislation of Parliament. When there is a car accident in Quebec, the principal of the civil law code is applied. When a car accident takes place in Ottawa or Toronto, the principal of common law is applied.

Senator Grafstein: If the aspect of the bijural impact of the civil code changes the common law to be more consistent with civil law as a result of the operation of this statute, the impact of the civil law is larger than just the Province of Quebec, is it not?

Senator Beaudoin: This is probably where we disagree. For me, this bill does not change civil law or common law. It harmonizes federal legislation with the genius of the Civil Code in Quebec and the genius of the common law in the other provinces.

Senator Grafstein: I agree with that.

Senator Beaudoin: However, the two remain different.

Senator Grafstein: I agree with that. To take it a step further, look at the last recital: "...the objective of the Government of Canada is to facilitate access to federal legislation that takes into account the common law and civil law traditions, in its English and French versions." Certainly we have heard from our witnesses the impact of harmonization that keeps the coequal systems intact - in other words, they affect one another. Notions from the civil law impact the common law and vice versus. That was the evidence we heard.

If that is the case, it is true that the principal application of the law is in the Province of Quebec as it applies to the civil law being harmonized under the federal law. By the same token, however, those jurisprudential ideas have a larger reach than just the Province of Quebec. That is my point. If that is so, "whereas the Civil Code of Quebec is the principal expression of the civil law tradition in Canada" is more appropriate than limiting it to the Province of Quebec. It is in support of Senator Joyal's contention. I am not trying to distort the evidence. That is the evidence we heard.

Senator Pearson: I have a couple of comments. My instinctive reaction to the replacement of the second "whereas" with the other one - and this is a gut feeling - is a diminution of Quebec. In that sense, I am conscious that that is what it is and I do not like it. I prefer the first reading.

The Civil Code existed in Quebec long before Canada, did it not?

Senator Beaudoin: A century before.

Senator Pearson: That is what I thought. We became a country, and, since Quebec is part of Canada, there is a Civil Code in the country.

I do not understand that argument about it expanding beyond. I am more comfortable with your understanding of what it is. My understanding, having been here for six years on this committee, is that laws are always evolving. We are always amending, changing, and so on, and doing so to reflect changes in society. That is what we are doing. Obviously, there will be some influence by certain things that are happening in Quebec on federal legislation. We only have to look at the biker gangs to see that.

In my opinion, the "whereas" that Senator Joyal has put in there tells does not tell me anything. I think it tells me less than the first one. The first one is more what I would like to hear.

Senator Fraser: If a non-lawyer may venture in, further to Senator Grafstein's remarks, I note clause 8 of the bill, which says explicitly, the following:

...the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

In other words, we do not have co-mingling of the two legal systems here. We have the adjustment of the vocabulary of federal statutes so that they may be intelligible everywhere in the land. I am sure that honourable senators who were here will remember that, in the previous session of Parliament, when we looked at the previous version of this bill the minister spoke rather eloquently about the fact that it is no good just to assume that you can have civil law vocabulary in French and common law vocabulary in English because there are francophone lawyers in the common law provinces and anglophone lawyers in Quebec. For the law to be equally accessible to citizens across the country, you need to address both traditions in both languages. That is all we are doing here. I would not want the implication to remain on the record that by this we are somehow telling the different provinces, "Your laws are now being co-mingled." That is not the case. Is that not what Senator Grafstein was saying?

Senator Grafstein: That is certainly not my argument.

Senator Fraser: If that is not what he was saying, then I apologize. That is what I thought I heard you say.

Senator Grafstein: It is the argument of the academics that talks about the influence of one system on the other.

Senator Cools: I want to put on the record that I support Senator Joyal's amendments in respect of his concerns about the uniqueness and the definitions, as he expresses: "Whereas the Civil Code of Quebec is the principle expression of the civil law tradition in Canada."I think that speaks more clearly to what is being accomplished in this particular bill.

The minister went at length to say that there are two traditions in Canada. It seems to me that these proposals are more consistent with the intention of the bill.

I would be quite happy to see the matter put to a vote.

The Chairman: Are there any other senators who wish to speak to this matter?

If not, we will proceed to the vote on the motion in amendment by Senator Joyal.

Senator Cools: How will you do this, paragraph by paragraph?

The Chairman: I will ask for a voice vote first on the amendment.

Senator Cools: On all of them?

The Chairman: Senator Joyal has moved this as one motion.

Senator Cools: This is one motion?

The Chairman: This is one motion. All four "whereas" paragraphs represent one motion. I will call for a voice vote on this amendment. If I hear anyone disagreeing with theamendment, we will proceed to a roll call.

The Chairman: Honourable senators, is it your pleasure to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chairman: We will proceed to a roll call.

Ms Joseph: Senator Milne.

The Chairman: No.

Ms Joseph: Senator Beaudoin.

Senator Beaudoin: No.

Ms Joseph: Senator Buchanan.

Senator Buchanan: No.

Ms Joseph: Senator Cools.

Senator Cools: Yes.

Ms Joseph: Senator Fraser.

Senator Fraser: No.

Ms Joseph: Senator Grafstein.

Senator Grafstein: Yes.

Ms Joseph: Senator Gustafson.

Senator Gustafson: No.

Ms Joseph: Senator Joyal.

Senator Joyal: Yes.

Ms Joseph: Senator Moore.

Senator Moore: Yes.

Ms Joseph: Senator Pearson.

Senator Pearson: No.

The Chairman: The call is six to four. The motion in amendment is defeated.

I will now proceed with the clause by clause. Are there any further motions in amendment?

Senator Moore: Yes.

The Chairman: I will read it into the record so that it will be in French on the record.

It is moved by Senator Moore:

That Bill S-4 be amended in the preamble on page 1, lines 15 and 16:

(a) by deleting the words "a window on the world;" and,

 

(b) by inserting in the place and stead thereof the words "enhanced opportunities worldwide."

 

Senator Beaudoin: That is line 13?

The Chairman: Lines 15 and 16.

Senator Grafstein: It is the fourth recital.

Senator Moore: It is the fourth recital in the preamble.

The Chairman: Lines 15 and 16. It starts with "a" on line 15, "a window on the world." The amendment replaces the words "a window on the world" with the words "enhanced opportunities worldwide."

Senator Moore: I expressed my concern and wonderment at the existing wording last week. I do not know what "window on the world" means but I know what an "enhanced opportunity" means. I think that is what this harmonization will do for Canadians.

I often think of the example that our Prime Minister gives about the English and French languages, and doing business with countries where they speak the French language. He talks about his Algerian experience. He was able to sell Canadian technology there because it was marketed in the French language.

This harmonization is another step forward in that regard and would enhance such opportunities around the world. That is why I am suggesting this amendment.

The Chairman: Any further debate?

[Translation]

Senator Beaudoin: I am satisfied with the term "a window on the world" and with the mention of exchanges with the vast majority of other countries being facilitated.

We have already done that with the French and the English languages, our two official languages in Canada, which give us an opening onto a very large part of the world. The window also includes the civil law tradition that we have in Canada and in Quebec, just like we have the common law tradition in the other provinces. So, it is the same opening onto the world. In the first case, it was the language, and, in this case, it is the bijuralism. I strongly support bijuralism because sixty countries have been inspired by one code - the Napoleon Code or another one -, and sixty countries have been inspired by common law. As a window, it is something.

I do like the expression "gives a window on the world." We already knew that we had such a window with the English and French languages; we are now saying that we also have one through our civil law and common law traditions. I find it great.

Senator Joyal: I support Senator Moore's amendment because I find it clearer than the wording we already have. When we say that having those two traditions gives Canadians a window on the world, it means everything and nothing. It is so poetic. I would not want to insult poets in saying that, since Senator Grafstein introduced a bill dealing with poets. I think that, if translated in French, what Senator Moore is trying to promote for Canadians is "des opportunités nouvelles et augmentées." It is Canadians themselves that matter, not the window. A window is just a means to see the world. We already see the world. These two traditions give each one of us an enhanced capacity, as dean Perret explained it so well, to deal with countries where both traditions exist. I think that Senator Moore's proposal reflects the objectives we are pursuing with that harmonization more appropriately than simply saying that we see the world through a window. That is not basically what we want to do. Our goal is to give Canadians, through harmonization, enhanced opportunities to expand their international exchanges. I find his suggestion much more consistent with the spirit of what the preamble is meant to pursue.

[English]

I will certainly support it.

Senator Grafstein: I agree with Senator Moore's improvement on this recital. I was reminded when I read it about a cinematography analogy, which was the movie A Room With a View.

For those honourable senators who remember that startling movie, they will remember that there were people in a particular room, looking out a window, and they were trapped in that room doing things that are obviously enhanced. They are interfaced with one another but did not do very much to the outside world. The analogy was quite the contrary of opening up. So, when the window opened up to world it meant that people were sitting still in a room looking at the world from that room. When I see "window on the world," that is exactly what I concluded from that.

I congratulate Senator Moore. He took that analogy and ripped it from this particular recital, and it makes much more sense. What we are trying to say, according to the minister and the witnesses to whom Senator Beaudoin referred, is that we are trying to enhance Canadians opportunities abroad by the fact that we happen to have two legal systems that are adaptable to either francophones or anglophones. To my mind that is quite positive.

To say "windows on the world" is a restrictive measure, one that says that people are sitting in their room looking out. Again, I use the movie analogy, A Room With a View, which I do not feel is particularly appropriate for what we are talking about here, which is, in effect, to invite Canadians to get out of the room, not look out of the window, but to get out in the world and sell Canadian traditions in an economic way. This makes much more common sense to me.

Senator Fraser: I recall in earlier sessions Senator Moore expressing discomfort with this phrase. I meant to do a search; I regret that I have not. The phrase, in English or French, is familiar and comfortable to me. "Fenêtre sur le monde," or "window on the world." I wish I could give him the sources, but I am unable to. It was not invented here.

What I particularly like about this phrase is that, unlike Senator Grafstein, I have always taken it as a succinct way of conveying the possibility of two-way exchange. Through a window not only we do look out, we receive light and air.

Senator Beaudoin: We see the Eiffel Tower.

Senator Fraser: We see the Eiffel Tower, yes, and we can feel, if we are lucky, the breezes from the meadows of France. Therefore, while Senator Moore's proposal contains words that are in themselves perfectly unexceptional, they do not mean quite the same because they convey to me more the language of trade. We can go out and make money but not receive the benefits that are to be gained - the incredible enrichment in legal, academic, philosophical and social terms, from having these two traditions that are so well represented worldwide.

I hope that was not too poetic.

Senator Pearson: I tend to think that this phrase originated with Peter the Great, the window on the West that he spoke about and the creation of St. Petersburg. However, I am tempted by the amendment. This just came to me and it is hard to decide. In terms of what we have heard from the witnesses, Senator Moore's expression is more accurate. I understand the idea of the window and going both ways, but there is something a bit more active about "enhanced opportunities worldwide," and that is what we were told about. Therefore, I am inclined to support the amendment.

The Chairman: With no further discussion, then, I shall call a vote on the amendment.

Is it your pleasure, honourable senators, to adopt the motion in amendment that has been proposed by Senator Moore?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chairman: We will have a roll call vote. Senator Fitzpatrick is replacing Senator Cools.

Ms Joseph: Senator Milne.

Senator Milne: No.

Ms Joseph: Senator Beaudoin.

Senator Beaudoin: No.

Ms Joseph: Senator Buchanan.

Senator Buchanan: No.

Ms Joseph: Senator Fitzpatrick.

Senator Fitzpatrick: No.

Ms Joseph: Senator Fraser.

Senator Fraser: No.

Ms Joseph: Senator Grafstein.

Senator Grafstein: Yes.

Ms Joseph: Senator Gustafson.

Senator Gustafson: No.

Ms Joseph: Senator Joyal.

Senator Joyal: Yes.

Ms Joseph: Senator Moore.

Senator Moore: Yes.

Ms Joseph: Senator Pearson.

Senator Pearson: Yes.

The Chairman: The motion in amendment has been defeated by a vote of six to four.

Are there any further motions to amend the preamble? If not, shall the preamble carry?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Chairman: We shall proceed to a roll call vote.

Ms Joseph: Senator Milne.

Senator Milne: Yes.

Ms Joseph: Senator Beaudoin.

Senator Beaudoin: Yes.

Ms Joseph: Senator Buchanan.

Senator Buchanan: Yes.

Ms Joseph: Senator Fitzpatrick.

Senator Fitzpatrick: Yes.

Ms Joseph: Senator Fraser.

Senator Fraser: Yes.

Ms Joseph: Senator Grafstein.

Senator Grafstein: No.

Ms Joseph: Senator Gustafson.

Senator Gustafson: Yes.

Ms Joseph: Senator Joyal.

Senator Joyal: No.

Ms Joseph: Senator Moore.

Senator Moore: No.

Ms Joseph: Senator Pearson.

Senator Pearson: Yes.

The Chairman: This time we are seven to three. The preamble is carried.

Shall the title carry?

Hon. Senators: Agreed.

The Chairman: Carried.

Is it agreed, then, that this bill be adopted without amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

Senator Grafstein: On division.

The Chairman: On division.

Senator Grafstein: There is a point that I have taken before other committees. Every committee deals with this somewhat differently, but I did abstain and there was a vote against it. I hope that the abstention would be limited to the provisions, or there could be a note in the report to say that it was approved on division but there was an abstention on those clauses. I think I made it clear as to why I abstained. I abstained because there is a serious constitutional question, and I should like that noted in the report, if possible.

It does not deteriorate or derogate from the majority position but it makes it clear that there was an abstention at report based on a constitutional objection.

The Chairman: I am not sure that I have ever reported on the results of a vote in this committee. Since this has now been done as a roll call vote, the record will show how the vote has gone. I can certainly say that it was not unanimous in the committee.

Senator Grafstein: Perhaps, then, there is another way of handling the matter.

The Chairman: At this point, we have now voted on the bill.

Senator Moore: No, we have not.

Senator Grafstein: No.

The Chairman: It was agreed that this bill be adopted, on division.

Senator Moore: Fine.

The Chairman: Without amendment, on division.

Senator Beaudoin: Do you use the expression "report, on division"?

The Chairman: No. At this point, the committee can now consider observations to be appended to the report, if anyone on the committee so wishes.

Senator Grafstein: You have my point.

The Chairman: Yes.

Senator Pearson: From the letter that Minister McLellan sent us in response to the need to have clarity as to where the words were being placed, we could add in the summary, as a fifth line, the following:

Generally, in provisions that describe a legal concept by using a common law term and a civil law term, the common law term appears first in the English version and the civil law term appears first in the French version. Examples of this are "real property and immovables" in the English version and "immeuble et biens réels" in the French version.

That was a direct quotation from the minister's letter.

Senator Beaudoin: How is this coming before us?

The Chairman: Honourable senators, I read into the record the minister's letter. This is included in her letter, copies of which are now being handed out to all honourable senators so they can see what Senator Pearson is talking about. It is on page 2, the indented paragraph, three-fifths of the way down the page.

Senator Beaudoin: It is not part of the bill.

The Chairman: No. You are suggesting that this be added in the summary?

Senator Pearson: Yes.

The Chairman: Inside the cover of the bill?

Senator Grafstein: May I make a suggestion? I understand what the honourable senator is trying to do. Perhaps the appropriate way to do it is to say in the report that the minister said this. I have no problem with that. It is her view and she wished that to be noted. If we leave it at that, it is in the report, as Senator Pearson would like to have it. I have no objection to that, but we did not get into a debate about that one way or the other. We can make it as her comment, as a note, and we can say this that this matter was not discussed or debated by the committee.

Senator Fraser: But it was, Senator Grafstein. I went on and on and on about this.

Senator Beaudoin: I even prefer what Senator Grafstein is saying.

Senator Grafstein: It does not derogate from my comment, which is that the minister made that as a note. It does not require the members of the committee to opine on the note.

The Chairman: No, but we can add this in our observations, if the committee agrees.

Senator Beaudoin: That it is her opinion.

Senator Moore: Agreed.

The Chairman: That is right.

Senator Fraser: That is going into the summary. Her letter says that Justice legislative drafters are proposing to incorporate this in the summary of the bill for further understanding of everyone who may end up reading it, like senators.

Senator Grafstein: It is an unusual practice. The better practice is to take the point that she makes and put it in the report as an observation of the minister. That is a better practice.

The Chairman: Senator Pearson is proposing, then, that we add this paragraph into my report as an observation from the minister.

Some Hon. Senators: Agreed.

The Chairman: Is that agreed?

Senator Beaudoin: Purely on her part.

The Chairman: Yes, but not on the part of the committee.

Senator Beaudoin: Not part of the report of the committee, though.

The Chairman: That is right.

Senator Pearson: May I ask a practical question? Since this bill originated in this house and will now go to the House of Commons, if they want to put it into the summary would that be the practice?

The Chairman: It is not part of the bill at any rate.

Senator Pearson: Just in the report?

Senator Beaudoin: Legally speaking, it is only an observation. I am not saying that it is wrong, but in the Legal Committee we must follow the law.

Senator Fraser: It is simply a statement of fact. That is the way the bill is now written. All this note does is draw attention to that fact, so that anyone who is confused will understand what is going on.

Senator Grafstein: This is horrible, bad practice. The minister, however, because this is an afterthought, wants to make it clear that this is part of the record and I have no objection to that. However, I am telling the Department of Justice officials that this is horribly bad practice. The way that we are trying to accommodate the minister here is to have the note appear as her note as an observation. That is as far as we can do. Otherwise we are distorting the role of the committee and committee hearings and how you conduct as it refers to legal legislation.

Senator Buchanan: Agreed.

The Chairman: I agree with you, Senator Grafstein. We will put it into the report as having come from the minister.

Senator Beaudoin: And it is an observation?

The Chairman: Yes.

Is there any further observation that one wants to add to this report that I will give tomorrow?

Hon. Senators: No.

The Chairman: Is it agreed that I report this bill with observations at the next sitting of the Senate?

Hon. Senators: Agreed.

The Chairman: Carried.

Before we all go, there is still future business of the committee. During the last session of Parliament we had Mr. Kingsley, the Chief Electrical Officer, appear before us. He offered to come back before this committee to talk about several things. At this point, we do not have any bills before us. In order to haveMr. Kingsley back, we must have an order of reference from the Senate. Therefore, I should like to ask for permission, with your agreement, to move:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine the Chief Electoral Officer's report for 2000 on the 37th general election; and

That the committee submit its report no later than June 30, 2001.

All in favour?

Hon. Senators: Agreed.

Senator Beaudoin: Why is it not later? Is it urgent?

The Chairman: No, but we will get it over before the summer. Since there is nothing on our agenda, we are asking them to come as quickly as possible so that we have something to talk about.

Senator Beaudoin: All right.

The Chairman: Carried.

The committee adjourned.

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