Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 3 - Evidence

OTTAWA, Thursday, February 26, 2004

[English]

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 260, to amend the Hazardous Products Act (fire-safe cigarettes), met this day at 8:35 a.m.

Senator Mira Spivak (Deputy Chairman) in the Chair.

The Deputy Chairman: Honourable senators, there is a quorum, so we begin our presentations. I want to welcome the witnesses here this morning from Imperial Tobacco Canada, Mr. Pierre Fortier, Mr. Donald McCarty and Mr. Stewart Massey.

Mr. Pierre Fortier, Vice-President Corporate Affairs, Imperial Tobacco Canada Ltd.: Thank you for agreeing to see us this morning and for allowing us to proceed immediately at this hour. Because we received the committee notice only on Tuesday of this week, we were unable to cancel engagements that we must attend beginning at noon today in Montreal.

I will be brief in my remarks this morning, honourable senators. Mr. McCarty will be making a presentation more on the substance of this issue. He, along with the two of us, will be pleased to answer questions that you may have.

I should like to provide some context. LIP, which is the subject matter of this discussion — LIP being low-ignition- propensity cigarette — is an important issue, but not one that, under normal circumstances, would cause us to intervene. As you will hear shortly, we continue in our attempts to work with the officials at Health Canada to find an appropriate solution to satisfy everyone on this LIP issue.

We use the LIP issue as a pretence to meet with you. The way LIP is unfolding is a typical illustration of what happens when no one is charged with objective oversight to ensure a proper and measured approach to legislative or regulatory imposition. Let me explain this: As a result of the federal government's denormalization policy, the unintended consequences, and some would say the intended consequences, are that almost no individual or group in government will deal with the tobacco industry in a meaningful way, regardless what the issue. That is not a rant or a whine, it is fact, and in the past we were resigned to that reality.

On the matter of the bill before you for consideration, our initial position was to let matters unfold as predicted — that is, quick passage in the Senate, ratifying a private member's bill. On second thought, however, we decided to take a chance and gamble with the idea that maybe — and I know how strong Senator Spivak's views are on the issue of smoking, along with Senator Kenny, who is not here this morning — honourable senators would listen to us more objectivity than others have, and then begin to ask the pertinent questions that need to be answered by those who seek to legislate and regulate.

I wish to raise three points. First point: Why would the Government of Canada support the notion that it needs two laws, the Tobacco Act and the Hazardous Products Act, to implement LIP? Health Canada is asking the same question. Both of those acts by the way are under the aegis of Health Canada, and one of those, the Hazardous Products Act, is questionable as to whether or not it requires Health Canada, without reservation, to promulgate within six months safe fire safety standards for cigarettes. This, automatically, leads to the second point. How can the government legislate science into existence, requiring us, by law, to introduce LIPs by a certain date based not on the current scientific capacity to do so but on a desire to see it done?

By way of illustration, would drug companies be told to introduce a product to treat a certain disease by a certain date — of course, not? Drug companies spend years developing products by testing them and having to prove that they are safe and effective before they can hit the marketplace. Even then, some of those products are recalled after it has been determined that the side effects can cause more problems than the conditions for which they were designed to treat.

The final point is a delicate one because it deals with optics. As you are aware, my colleagues, Mr. McCarty and Mr. Massey, did have the opportunity to make a presentation on the LIP and Bill C-260 to the Standing Committee on Health in April of last year. Now, we are in the private sector, honourable senators. We live in a post-Enron, post- WorldCom, Sarbanes-Oxley world. Conrad Black knows only too well what happens when it is perceived one is circumventing the new rules of governance for business. However, the tobacco file is so tainted by denormalization that one cannot help but notice that, perhaps when legislating or regulating tobacco, those rules do not apply.

When my two colleagues made their presentation before the Health Committee, the staunchest cross-examiner, who additionally scoffed at their presentation, was none other than the member of Parliament who is sponsoring Bill C-260, Mr. John McKay. It could well be that the rules of Parliament allow such circumstances, but from our perch it was astonishing that Mr. McKay did not recuse himself as a member of the committee, because his interests were in conflict with the submissions being made. We do not believe that is the right thing to do, no matter what.

I shall conclude here with a humble request to the members of this committee that they take the position that there is a fairness card to play here, and that the pertinent questions need to be answered before ratification of this bill.

As to the substance of our position on LIP, I turn to my colleague Mr. McCarty.

Mr. Donald McCarty, Vice-President, Law, General Counsel, Imperial Tobacco Canada Ltd.: Honourable senators, the last time this company was before this committee was in the year 2000, when our former president, Bob Bexon, appeared in support, much to the astonishment of many, of Senator Kenny's bill to work against youth smoking.

I have had the opportunity to make two submissions before parliamentary committees on this topic, once in a fulsome manner to the House of Commons committee, then as a bystander in another committee, where I was called upon at the last minute, together with a number of people, to make some impromptu comments, which I did as best I could.

We have put out some materials, which describe our position on this issue in a very fulsome manner. You have them before you. You have a binder that looks like this, the first part of which comprises our replies to a Health Canada questionnaire. In the process of consultation with Health Canada, they did send us a questionnaire about much of the cost and technical implications involved. We responded to that.

You will also have in the same binder a copy of a dual-purpose brief. We tried to have this brief reply both to Bill C- 260, as proposed in the House of Commons originally, as well as to the Health Canada initiative, which they refer to as a regulatory proposal, for low-ignition-propensity cigarettes. Our brief is contained there, together with a number of annexed documents.

I have also circulated a document that looks somewhat like this. This is just to bring honourable senators up to speed on what the industry looks like in Canada these days. You will find here photos of the various types of illicit and contraband cigarettes presently available in Canada. Finally, at a further point in the presentation, I will be circulating samples of some cigarette packages.

The brief, and the reasons we have in it, are too lengthy to go into fully in the limited time we have available. However, I should like to highlight the main reasons for why we oppose the bill. I should like to emphasize that we do not oppose the bill because we are opposed to low-ignition-propensity cigarettes. On the contrary, we are working hard to find a low-ignition-propensity cigarette that is palatable to Canadian consumers. We are trying to do that with Health Canada at the present time.

We believe there are serious problems with the way this bill got before Parliament, and the process that led it to be sponsored and which has finally wound up here before the Senate. We believe the cart has been put before the horse. We believe that Parliament, although it is no doubt able and empowered to do so, is not allowing Health Canada to fulfil or to complete a process it has begun — and the work has already begun on this issue.

Although we do not always see eye to eye with Health Canada on the issue of low-ignition-propensity cigarettes and on other issues, we are working very hard with them presently on this issue. Indeed, we have agreed with them that we will try to find a way to make low-ignition-propensity cigarette prototypes for them to test.

We also oppose this bill because there is actually no evidence that this bill will reduce the incidence of fires caused by careless smoking. We have no indication that that will happen if this bill is passed.

We also believe that the architects of this bill, at least in part, were plaintiffs' lawyers, who, in my view, put together a bill to support litigation they had outstanding against us before the courts. In our view, this has less to do with health and less to do with safety than it does with the issue of harassing manufacturers for the sake of harassing manufacturers.

There is also no relevant evidence to show that such a measure — in other words, the introduction of low-ignition- propensity cigarettes — will not increase the already well-known risks of cigarette smoking, both by increasing the amount of the toxic constituents that the smoker will inhale and also by the phenomenon of relighting a cigarette that has gone out by itself and the increased amount of toxins that may deliver.

Mr. Massey may answer questions you have on this issue.

We are also working very hard at Imperial Tobacco Canada, together with our colleagues across the world and our sister companies, to develop a product that will reduce the incidence of disease, which is sometimes referred to as a PREP, or potentially reduced exposure product. We believe the technology that may be imposed upon us by this bill will take us in an opposite direction than we need to go in order to develop these products.

Again, Mr. Massey is available to answer questions about details on that point.

This bill will force manufacturers to make a low-ignition-propensity cigarette precipitously, without regard for the consequences.

The legal manufacturers of tobacco in this country, because of high taxation and the resultant high prices, are faced with an increasing burden of illegal competition. I have circulated to you samples of what this illegal competition looks like. This is a burgeoning market and it is growing across the country.

The additional problem that we have, and that Health Canada will have, and that the government will have, is that none of those products is a low-ignition-propensity cigarette, nor will such illegal products ever be, because they do not obey the law and they are sold illegally. If we are forced to make such a cigarette precipitously, without being able to make it palatable to Canadian consumers, they will turn to illegal products.

I should also like to circulate the latest example of what is going on in the Canadian market. You will see samples of packages of two of Canada's more well-known brands, Player's and du Maurier. The one on the left is the genuine product; the one on the right is made in China and is sold for approximately one fifth or one sixth of the price that the real cigarette is sold for.

Honourable senators may wish to see if they can find a difference between the two — the difference is very difficult to detect. We are working with the RCMP and law enforcement authorities to stop this problem, but it is growing.

Obviously, the problem here is that, to the extent that this market grows, it is not just the manufacturers that will suffer. Canadian farmers who produce Canadian tobacco will suffer because there will be less of it to buy. Wholesalers and distributors and retailers will also suffer because they are outside of the legal channels in many cases. Government also will suffer, by the way, because tax revenues are affected. By the way, smugglers and contrabandeers do not really check for ID when they sell cigarettes.

Finally, the other person that will be affected by this is the average tobacco industry worker, many of whom have lost their jobs because of the reduced demand. Perhaps that is the way things should be over the long run, but I personally find it absurd that tobacco workers working in a legal industry should see their jobs exported overseas to illegal manufacturers. I do not think this will serve health a wit.

Why will we have done all this? By passing this bill precipitously, what will we have accomplished? In our view, we will not have made cigarettes safer in terms of their fire risk. We may have very well helped the cause of the plaintiff's bar, who were the architects, in large part, of this bill. We are doing it perhaps because it is the thing to do, to denormalize tobacco manufacturers, and it has to be right because they are, after all, tobacco manufacturers.

We are in the 21st century, and my colleague Mr. Fortier's plea was for understanding and dialogue in the 21st century in Canada in this business. The tobacco industry is prepared to work with parliamentary committees and with Health Canada to reduce the health risks of cigarettes, to stop youth smoking and to reduce the risks of fires caused by cigarettes, but we do not want to be forced to do it in a denormalized and precipitous manner by legislation put forward by plaintiffs' lawyers who are seeking to sue us.

My plea to you, then, is to allow Health Canada to be allowed to continue its work on the regulatory proposals to reduce the risks of fires started by cigarettes. We are working with them on this process. They have a timeline. We are hopeful of achieving something with them. I think we should be allowed to do that.

By doing so, we can perhaps demonstrate to Parliament, to government and to Health Canada that there is a way forward in the 21st century on the issue of tobacco and health and on the issue of low-ignition-propensity cigarettes. I have no illusions about this process and how government works, but I am certainly hopeful that you will take a second look at this bill and ask yourselves why this bill is being done in this way, why the big rush, when the evidence that we have put before you in previous submissions made to the parliamentary committee on health in the House of Commons and that are before you demonstrate very well that we will not be advancing the situation in the near term at all.

The three of us are prepared to answer any questions you may have.

Senator Milne: I just want to get it on the record that I object very much to the tone of Mr. Fortier's presentation to us today. For someone who claims that they he is humbly requesting the members of this committee to take a position, I have never heard anything, in the nine years in which I have been in the Senate, less humble. He talks about what happens when ``no one is charged with objective oversight'' and about denormalization policy with consequences some would say are intended. Mr. Fortier went on to talk about the initial position of ``let matters unfold as predicted.'' How dare you predict what we will do? He went on to say: ``...we decided to take a chance and gamble with the idea that maybe...honourable senators would listen to us more objectivity than others have.''

Mr. Fortier then goes on to accuse Mr. John McKay of being in cahoots with the plaintiffs in some unknown law suit that I know nothing whatsoever about and saying that they are the architects of this bill.

If I were to advise someone to come before a committee and absolutely ensure that its members would not listen to what I would say, this speech would be the example to use.

I may have questions later on, but I want to get that on the record to begin with. I believe that since Mr. John McKay has been accused of something, that we should have him as a witness before this committee.

Senator Kinsella: Although this bill is a mere page, page and a half at most, its size or length does not mean that it is not problematic. It is problematic for a variety of reasons, and one of reasons is the charged nature of debate around topics like this. It makes the work of parliamentarians, I think, very difficult.

I know very little about the tobacco industry, but, like Senator Milne, I do know a little bit about parliamentary process, given my 14 years in the Senate. I also know something about the machinery of government, having served as a deputy minister. I was drawn to the issue of machinery of government. It jumps out at you when you see three or four different agencies of the Crown, of the executive, having one finger or two fingers in a file. I think there is something wrong. This is another example of something broken in the machinery of government and in our system of ministerial responsibility. I do not know which minister would be responsible. This gets to a private member's bill coming in, which begins to draw my attention to the procedural issue and whether or not it is something that really should have had a Royal Recommendation.

In the Senate chamber, honourable senators will recall that this private member's bill sat on the Order Paper for eight sitting days. I do not know how many calendar days that represented, but certainly a couple of weeks. It was then moved at second reading, and second reading debate began immediately. There was a second intervention. As a member of the opposition, I rose to attempt to take the adjournment of the debate because I have been studying this issue from these two perspectives. The question was put whether or not Senator Kinsella could have the adjournment of the debate. I did not have my file in the chamber. I announced when I made my motion for the adjournment of the debate that it would not take me eight sitting days and I could be back at it, if we were sitting tomorrow, before the end of this week; otherwise, when we came back.

The question was put by the Speaker, and I was denied by the majority the opportunity to participate in the debate at second reading, which is on the principle of the bill — on a private bill, not a government bill.

I have to use this committee to say that I think it was terrible that this bill has not had an intervention on the principle of the bill from a member of Her Majesty's Loyal Opposition in the Senate of Canada. It seems to me, in terms of procedure and process, that indecent haste is something we have to guard against, because it is one of the files that has an emotive part. I am not taking a position on it because I know nothing about the tobacco file.

Let me simply say that I am confident that all honourable members of this committee will give the bill thorough examination. I will certainly do my part, and I know the work that is done by members of this committee is thorough.

Mr. Fortier, you can rest assured that this bill will be given thorough examination. My colleague Senator Milne has made an excellent suggestion that, perhaps, we should have heard first from the sponsor of the bill, Mr. John McKay, to hear what he was driving at. I concur in that.

Turning to the bill, I should like your guidance on clause 1, page 1, at line 14, where it states:

(3) If the Governor in Council does not make a regulation under paragraph 5(b.1) on or before June 30, 2004...

The bill then lists a number of recourses if the making of regulations before June 30, 2004, is not complied with. That is clear.

However, clause 2, on page 2, at line 22, states:

4. This Act comes into force on December 31, 2004.

I am certain that my colleague Senator Morin can see the problem immediately as sponsor of bill in the Senate. I wonder whether our witnesses today would deem it necessary that an amendment be brought forward to Bill C-260 to correct this obvious error. Perhaps Mr. McCarty might speak to this.

Mr. McCarty: If I were the drafter of the bill and I wanted to enforce the proposed legislation, act after its passage, I would make a change to that date.

Senator Kinsella: Could you speak to the implications of not making that change?

Mr. McCarty: There are two things. Obviously, the bill is technically not in force. Therefore, in my humble opinion, the minister could, with impunity, disregard the requirement that he file a regulation before the end of June 2004. Hence, the requirements thereafter, if he did not do that, would not necessarily be enforceable. Whether the minister would actually choose to do that is, of course, another question.

The sanction is such that if the regulation were not filed on or before June 30, 2004, he would need to prepare a report to say why it was not filed; to list the other jurisdictions in which this kind of legislation may have come into force; and to list the scientific studies that would be filed in support of that. That is the current requirement in the bill.

Senator Kinsella: I see two problems. There is the general problem of what used to be called ``Henry VIII bills,'' whereby a one-line bill comes before the house, stating the topic and that regulations can be made under the bill, and then off it goes. Parliament is working to have substantive measures in bills, so that we know exactly what the proposed legislation is and as such can analyze exactly it, and not leave it to the imagination. This was the trick that King Henry the VIII used to play: Give me the power and I will make regulations.

Another issue is that you cannot have a clause of a bill coming into effect before the coming into force of the provision. It seems to me that the dates should be switched, so that the bill comes into force in June and the regulations following six months later in December — but even that I would not be happy with.

Could you reflect more on that?

Mr. McCarty: If you want to make the proposed act effective, that is what you would do, but that is not necessarily the position I am espousing. I do not think the bill should go ahead at all. You are asking me how to fix the proposed act to make it enforceable.

Senator Kinsella: As an opponent of the bill, you can see that there is a serious procedural drafting error, such that even your opponents would not be able to make this work.

Mr. McCarty: I do not like to see myself as an opponent of this committee or of Parliament. I am not happy with the bill, nor do I not think it will advance the issue of low-ignition-propensity cigarettes a wit.

Senator Milne: Mr. Massey, at what stage is Imperial Tobacco in respect of the research into low-ignition- propensity, LIP, cigarettes? What are you doing and what is your progress in testing?

Mr. Stewart Massey, Director of Scientific Affairs, Imperial Tobacco Canada Ltd.: We have made certain assumptions based on discussions with Health Canada as to what the testing protocol will be. Testing involves smouldering cigarettes on a fitter paper. It does not give a clear indication of whether the cigarette will, in real life, prevent fires. Nevertheless, that seems to be the favoured test. The test is being brought in by the State of New York in June 2004, I believe. That has been an issue in New York for about the last three years.

We have concluded from our work that it is not possible using some of the things that were discussed in the early stage of this bill at the House of Commons Health Committee. Simple design changes to the cigarette will not result in a pass of this test, albeit the test is artificial. It therefore will be necessary to make a significant modification, using a new technology of cigarette paper, to incorporate into the cigarette so that it passes the tests.

We are working with the manufacturers — because this paper is available but not in the commercial quantities that would be supportable throughout Canada and, at this time, in the state of New York. We are working with them to determine the most appropriate style of paper to be used. We are also attempting to redesign our brands to meet what we believe, at this stage, will be the test criteria.

Senator Milne: At this time, you do not know what the test criteria are in the State of New York.

Mr. Massey: Yes, we do know.

Senator Milne: What are you doing to meet those? Are you prepared to meet those criteria?

Mr. Massey: We cannot meet those criteria at this time.

Senator Milne: Mr. McCarty or Mr. Fortier, what will happen when the guillotine falls in June in New York State?

Mr. McCarty: I find it disturbing to have one senator referring to a ``Henry VIII bill'' and another referring to the ``guillotine.''

As a supplementary answer to the question you put to Dr. Massey, we are not required to meet the laws of the State of New York — so we are not necessarily working to meet those laws. Health Canada has given us an indication of the test that it will probably adopt, in the regulatory proposals that it intends to put forward at some time, probably by the end of 2004. We are attempting to meet that test.

Health Canada's proposed regulation also would require us to make various toxicity assays on cigarettes, mostly in vitro. Dr. Massey may elaborate on those tests, if you wish. What happens when the guillotine falls? This is why we are opposed to Bill C-260. If this bill were to force us to make a low-ignition-propensity cigarette by September 30, 2004, and we are not ready to comply, we will hastily adapt and improvise some way of doing it — which will not be the best way. We would do something to meet the test. This is all about meeting the test, senators, not about necessarily reducing the fires.

It is not because a cigarette does not go out when left to smoulder on 10 layers of laboratory filter paper that determines whether a fire will start if a cigarette is dropped into the folds of a chair, or a sofa. Those are two different issues.

Hence, we will hastily improvise something of that kind, but the cigarette that develops from there might be unpalatable to Canadian smokers because we will have to use a more porous paper, which, in our view, will cause more problems than it solves.

It will also, in my view, lead to increased incidences of smuggled and contraband products.

Senator Milne: They are not likely to be smuggling them from New York because in New York they will be selling cigarettes that meet some sort of test.

Mr. McCarty: Senator Milne, they will not be smuggling them from New York; smugglers do not care from where they get their product. They will just make it themselves. They will make it anywhere, such as, China. Chinese counterfeiters do not care whether they meet the standards, nor do any other illegal importers that are listed by the dozens in the handout that I have given you.

Senator Milne: It comes to the issue of how illegal cigarettes not only are smuggled into Canada but how they are smuggled into the United States. I am curious as to what sort of border controls there are in the United States.

If these cigarettes are being made in China, then the tobacco is not being grown in either Canada or New York.

Mr. McCarty: It is not a problem limited to tobacco by any means.

Senator Milne: You are speaking to a group that knows that very well.

Mr. McCarty: When the RCMP intercept containers of counterfeit cigarettes, they find other products there as well.

Mr. Fortier: Senator — and I will try not to get your ire up — the illustration I have given in answer to that question is that the networks are currently and have been in place for a number of years. Whether it is aliens, drugs, or munitions, the networks are already doing heavy work cross-border. To add a pack of cigarettes to your load when you have your network is peanuts.

This is the argument that we have made for a long time. The RCMP and other law enforcement officials in this country have much work already, and we know from experience in the early 1990s that to risk one life to stop cigarettes from crossing a border is tough sledding. It is a question of resources.

So, in answer to your question about stopping at the border, there is a report by Philip Morris, which just came out, that states that counterfeit trade alone, globally, is 150 billion sticks per year.

If you want the order of magnitude for Canada, it is something like 38 billion.

That is how much traffic is out there in the illicit market. That is the counterfeit, not the smuggled and contraband stuff.

The point to all of this is that we are not against low-ignition-propensity cigarettes, but if we are going to venture in this direction, let us be serious about it. Do not fabricate a test for us to meet that is divorced from the possibility of finding a low-ignition-propensity cigarette. Passing the test is divorced from getting the product you are looking for at the present time.

This is what is happening in New York — everyone is rushing to pass the test. It does not make it a low-ignition- propensity cigarette; it is just a test-passing cigarette. That is what we are trying to avoid here.

Senator Milne: It seems to me that every low-ignition-propensity cigarette ever designed — well, of course, it has to be a test-passing cigarette. I have some problems with the last statement you just made. What you are really questioning is whether the test is adequate. There will always be test-passing cigarettes, because that is the test. We are talking in circles here.

Senator Buchanan: There was an article in The Boston Globe last fall on the seizure of counterfeit cigarettes in the Boston area, and not a few dollars' worth f counterfeit cigarettes. The article told of millions of dollars' worth of cigarettes seized in about four different warehouses, cigarettes that all came from the Far East or China or somewhere in that area.

Senator Eyton: For the record, Mr. Fortier, I was not offended by your preliminary remarks. In general terms, I think governments need to be shouted at more often. I thought your remarks were at least a wake-up call, and this particular government needs to be shouted at very loudly.

I am on the record that way.

If what you have suggested, and my preliminary examination suggests that there may be something to it, that the bill itself is ill-advised, even if you assume the bill is well advised at the structure, the process within the bill is wrong and certainly the dates seem to be wrong. One or more of those points seems to be valid.

I should like to hear more about the industry in terms of three factors. The first factor relates to sales and sales trends, both legal and illegal in Canada.

The second factor relates to pricing, since sales are not necessarily a good tracker of consumption, given price changes. That will give me the context of consumption by Canadians, legally and illegally. I should like a breakdown of the sale price of an ordinary pack of cigarettes sold here in Canada. I want you to quantify for me the portion picked up by your majority partner, the federal government, who on the other hand proposes to regulate you in a way you do not like. That will tell me where the sharing goes and how much ends up with the manufacturer and how much goes to other people.

The third factor relates to the number of people employed directly or indirectly by the tobacco industry in Canada. I know this may seem like a lot, but approximations would be fine.

Mr. Fortier: My colleague, Mr. McCarty can give you most of the answers, but on the last question, Imperial Tobacco employs 1,000 people directly. The other two major manufacturers, JTI-Macdonald and Rothman's Benson and Hedges, would be about the same number.

Indirectly, we are looking at about 40,000 people across the country.

Senator Eyton: Would they be largely in Ontario and Quebec?

Mr. Fortier: Everyone in the supply chain — which includes many of the suppliers, those who print the ink and those who manufacture the filter, the truckers, the wholesalers, the distributors and the retailers.

Senator Eyton: Does that include farmers?

Mr. Fortier: It does include farmers.

Senator Eyton: The farmers would be located mostly in Ontario and Quebec?

Mr. Fortier: In Quebec, there are 50 to 60 farms in Joliette, Quebec, but the majority are in four ridings in southwestern Ontario, with about 800 farms in that area.

Senator Kinsella: What are those ridings?

Mr. Fortier: They would be Haldimand, Norfolk and Oxford.

The Deputy Chairman: This is interesting, but we are straying from the bill. May we have a response to the question?

Having been a culprit most of the time myself, I cannot be too strict.

Mr. McCarty: We estimate that legal sales in Canada in 2003 declined from 10 per cent to 12 per cent. Much of that is a natural decline in the incidence of smoking; another part of that is because many of the cigarette that are smoked in this country do not get reported.

Pricing varies across the country. Some provinces tax more than others. The federal government taxes. We have estimated the total tobacco tax take in the country from the federal and provincial governments combined to be in the vicinity of $7 billion to $8 billion a year. I can send you more detailed information on that.

The price of a pack of cigarettes in Vancouver these days, I believe, is around $8 — maybe $8.20. It is in that vicinity, and a counterfeit cigarette is whatever they can get for it. Sometimes, counterfeiters sell them for the full price and make a huge profit, but often they sell them for much lower than that.

Senator Eyton: Can you give percentages?

Mr. Fortier: A carton of cigarettes sells for about $80, 70 per cent of which goes to the governments. As a company, we would take $18 out of that, $16 to $18, and whatever is left of those two numbers, you are talking the trade. That is the order of magnitude.

Senator Eyton: That gives me a context; I just wanted to clearly identify the major partner in this industry.

Senator Cochrane: At the beginning, you said that Mr. John McKay, whose private member's bill this is, should appear before this committee. You also mention how Health Canada, in consultation with you people, has a large role to play here. I think our committee should be hearing from Health Canada, Madam Chair. I certainly should like to hear from them. This falls within the Hazardous Products Act, and we should hear from the people responsible within Health Canada for that. We should also hear from the Tobacco Act people. I would recommend that we hear from Health Canada.

The Deputy Chairman: Those recommendations will be passed on the chair of this committee.

Senator Cochrane: Mr. Massey, you may want to come in here. From your perspective, what can or should be done to address the problem of fire started by cigarettes?

Mr. Massey: Well, it is a strange thing. To consume a cigarette, you have to set fire to it, and it has to continue to burn. What do you put in place to stop something that is burning from accidentally causing fires? I do not know. Is the answer: ``Do not light cigarettes anymore''?

The objective of Health Canada is to try to minimize the risk, which will go some way to reducing the risk of fires, but it will by no means eliminate it. It will not significantly reduce it, based on some of the available testing methodology. Scientists have struggled with a way to determine how to design a cigarette product such that it will not cause furniture fabrics to ignite.

There are certain standards, which I believe are voluntarily pursued in Canada, with regard to the flammability of furnishing materials. Such standards, with the exception I believe of California, do not exist in the United States. They do, however, exist in many European countries.

Senator Cochrane: What is the situation with New York, where, over the past three years, they have brought in this type of cigarette? Do you have any statistics on that as to what the results are?

Mr. Massey: There are two parts to that. One of the manufacturers, Philip Morris, has produced a cigarette that they advertise as being reduced ignition propensity. In fact, that cigarette, and the various variants of it, in testing done by the New York office of fire and prevention control, did not pass the test. Of the 14 brands that were looked at, only about three would have passed the test. It will have to be redesigned.

That product was specifically marketed. In fact, when they launched that product, the company said that it should be handled and treated as a normal cigarette — in other words, it would, in fact, cause fires, but it would be less likely to ignite materials than conventional cigarettes. They disclaimed it being a fire-safe cigarette.

This cigarette was introduced in the state of New York prior to any regulation or legislation to do that. It will only be in June of this year, finally, that the regulation will be introduced in the state of New York, and manufacturers who sell in the state of New York will be required to meet that standard.

This is an issue that we, as the tobacco industry technical representatives, have discussed with Health Canada. We have said to them an ongoing experiment is being conducted in New York and that based on that they could make judgments as to how they might bring in regulations in Canada that would at least go some way to achieving the objectives.

Senator Cook: Give us a technical overview. What can be done to reduce a cigarette's ignition propensity?

Mr. Massey: Essentially, the method that is being used is to print onto the cigarette paper two bands along the length — bands that go around the paper. This restricts the flow of oxygen through to the burning cigarette at certain points, and restricts it to such a degree that potentially the cigarette will go out. The cigarette will still smoulder, until it hits one of these speed bumps, or low oxygen zones, caused by the printing, but there will be a tendency, because of the cut-off of the flow of oxygen, for the burning coal of the cigarette to extinguish.

Senator Cochrane: Will there be enough smouldering there to catch fire?

Mr. Massey: This is the issue. It may pass the test, but it is well documented in the literature that such cigarettes will ignite furnishing fabrics, which are not necessarily made from filter paper, as in the test. Also, various stuffing material on furniture is very often flammable material. If there is enough heat in the cigarette during the period before it actually hits one of these speed bumps, it certainly could cause furniture to ignite.

Senator Cochrane: I just have one other thing, Madam Chair.

The Deputy Chairman: We do have a little more time for these witnesses.

Senator Cochrane: Talking about the industry, how will cigarette production be affected to accommodate the changes that this bill requires? Will it require new equipment and will it affect production time? Will it affect the cost of cigarettes?

Mr. Massey: As best as we can see at the moment, it will not require new equipment. It could, potentially, in the initial stages, affect production efficiency because we are dealing with a completely new commodity of cigarette paper. We do not know, at this stage, how readily that will run on the cigarette making machines — whether there will be problems with its strength as it runs through machine.

Senator Kinsella: I have three interrelated questions.

First, I what country has the highest per capita use of cigarettes? Second, what is the destination of the cigarettes that are manufactured in Canada? In other words, what percentage is for the Canadian market and what percentage is for other jurisdictions outside of Canada? My third question speaks to why I am asking the first two questions: In what country is the best regime for the LIPs?

Mr. McCarty: I believe that the country with the highest number of smokers would be China. The destination of almost all Canadian cigarettes is Canada. There is a small percentage exported to service the needs of Canadians traveling, principally to the United States. There is no other regime in the world, other than the State of New York, that has adopted this particular kind of jurisdiction.

Senator Kinsella: Are other jurisdictions looking at this?

Mr. McCarty: We believe that four or five states in the United States are looking at this, in addition to the State of New York.

Senator Kinsella: In the United States, is it governed by state legislation?

Mr. McCarty: Yes.

Mr. Massey: It is important to understand that similar regulations were proposed, discussed and rejected in New Zealand.

Mr. McCarty: Information on New Zealand can be found in our briefs and in the report to the parliamentary committee that looked into this issue.

Senator Kinsella: What did they do in New Zealand?

Mr. McCarty: They referred the issue of low-ignition-propensity cigarettes to the New Zealand Standards Council.

Mr. Massey: That council said that they were not satisfied with any change in the so-called toxicity of the cigarettes that may result from the introduction of cigarette design features to reduce ignition propensity.

Senator Kinsella: In Canada, what ministry should this fall under? You mention standards, and I understand that to mean safety standards in New Zealand?

Mr. Massey: No, it was a testing standard. It was their national standard writing organization.

Senator Kinsella: Are things too spread out in terms of the government agencies that are involved? Is that part of the problem? Is Health Canada the legal department that you deal with?

Mr. Massey: The bureau of tobacco control at Health Canada administers the regulations under the Tobacco Act.

Senator Kinsella: What about the hazardous products?

Mr. Massey: They fall under a different department at Health Canada, as I understand.

Senator Kinsella: It is the same ministry, though?

Mr. Massey: Yes.

The Deputy Chairman: I have one question, although it does not pertain solely to this bill. Do you regard yourself as a sunset industry? I ask that because Philip Morris, of course, has changed to Altria, and I have witnessed, with great astonishment, all of their advertisements on television suggesting that people should quick smoking. My question to you is this: Do you consider that you are a sunset industry?

Mr. Fortier: That is a pretty straightforward question that would ask for a straightforward reply. In quick reply, I would say, yes. It is not on a growth pattern. If you go back over the last 10 years, the percentage of the Canadian population that smokes has decreased — it is now in the low 20s. It is the same across North America and the Western Hemisphere, but I cannot speak for the rest of the world.

Curiously enough, and this is a nickel's worth of statistics, in 1976 there were 6 million people who smoked in Canada. In 2003, the figure is in the same neighbourhood because of population growth. There is still a serious customer base in Canada.

The Deputy Chairman: You will not change to manufacturing Kraft Dinner.

Mr. Fortier: No.

The Deputy Chairman: Thank you for your testimony. We will move on to our next witness.

Senator Kinsella: Before Honourable Senator Morin begins, I wish to raise a point of order for clarification.

I understand that when an S-bill sponsored by an individual senator is presented in the house, that senator comes to committee at committee stage to present the case. In this instance, the sponsor of this bill is a member of the House of Commons and not a member of the Senate. In the Senate, all senators are on an equal footing. A senator moves second reading, but second reading is simply the debate in principal. Here in committee, we are dealing with the details of the bill. All honourable senators are equal and I find it strange to have a senator appear as a witness at committee stage.

It seems to me that the sponsor of the bill, Mr. MacKay, is the one we should hear from first because he has the detailed information on the bill. Senator Morin, like some senators, had the opportunity to speak to the principal of the bill in second reading.

The Deputy Chairman: Senator Kenny wishes to speak. However, are you making a distinction between a bill sponsored by a senator who appears before the committee as a matter of course and a bill sponsored by a member of the House of Commons? Is that your point?

Senator Kinsella: It is the orderliness of a senator who is not the sponsor of the bill.

The Deputy Chairman: — who is not the sponsor of the bill.

Senator Kinsella: Rather, with a C-bill, the sponsor is a member of the House of Commons.

The Deputy Chairman: I want to let Senator Kenny speak, but Senator Morin is the sponsor of the bill in the Senate.

Senator Kenny: It is precisely that point, that each house has its own sponsor. There is ample precedent for that. We have had private members' bills come to the Senate whereby a senator becomes the sponsor of the bill. It is the same when a bill goes to the other place from the Senate, a member of the House of Commons becomes the sponsor of that bill.

I have been through this both ways with bills. When I had the good fortune to be sponsoring the Alternative Fuels Act, Jane Stewart, who was then a backbench Member of Parliament, was the sponsor of my bill. She spoke to my bill before the committee in the House of Commons. We have had the reverse happen here.

Senator Morin is the sponsor of the bill in the Senate and is properly before us in that regard.

The Deputy Chairman: Thank you. I hope that answers your question.

Senator Kinsella: That is his point of view.

The Deputy Chairman: That is also my point of view.

Senator Kinsella: You are the chair; your point of view is the one that counts.

The Honourable Yves Morin, Senator, Sponsor of the bill: As we know, Bill C-260 will lead to the introduction in Canada of low-ignition-propensity cigarettes, also known as fire-safe cigarettes. I know of no bill that will have such an immediate impact on the health and well-being of Canadians. It will save lives, prevent injures and also protect property. This bill has been a long time coming. It was introduced in 1999 in the other place by John McKay.

I should like, with your permission, to recognize and pay tribute to John McKay for his determination through various sessions of Parliament to bring this to fruition.

We have had this bill in the Senate before. In November, we had this bill for several weeks. All colleagues could address the bill, including Senator Kinsella. It died on the order paper.

It is an important issue. This is the second time this bill is before us.

Every year, over 100 Canadians die in fires caused by cigarette smoking, and more than 300 Canadians are seriously injured. I personally do not know of any injury that causes as much pain, disfigurement and handicaps as burns. The financial cost of cigarettes is high — $100 million a year. Young children, older people and handicapped are those hurt by cigarette fires because they are less able to escape from the fire. In New York, a cigarette-induced fire in 1998 was responsible for the deaths of three firefighters. This led to legislation that is similar to Bill C-260. As of June 28, 2004, all cigarettes sold in New York, without exception, will have reduced ignition propensity.

There are many techniques available to reduce the ignition propensity of cigarettes. I go can through that if you wish. Following tests that have been done by Health Canada and reported by the director of the Tobacco Control Programme at the Health Committee on October 7, these retardants do not change the taste of cigarettes or increase its toxicity.

One cigarette of this type has been on the market for some time. It is the Merit brand, produced by Philip Morris. I have a few here, if you care to open them. They have a very thin band of paper applied on traditional paper. These bands act as speed bumps to slow down the rate at which the cigarette burns. Other manufacturers are currently using other techniques in New York. This is paper — hence, it is obvious that it does not change the taste, nor the toxicity. They have been found to be effective.

Some members of the tobacco industry continue to oppose the legislation, but the important segment of the industry, especially in the U.S, now has agreed to move with this, and no longer oppose this.

Imperial Tobacco is by far the largest cigarette maker in this country. In the U.S. the situation is quite different.

I have listened carefully to the arguments. I am quite prepared to review them one by one, but I do not believe that they hold merit when compared to the prevention of death and injury — which is the main issue that will result from the passage of the bill.

A number of methods have been developed to test the ignition propensity of cigarettes. Health Canada has done a review of these techniques and has chosen the same test as New York, the ASTM standard E2187-02b. This test has been accepted in New York and will be accepted in Canada. It is an internationally recognized test.

Health Canada has tested 62 brands sold in Canada, and only one, the More Menthol, meets the test. I have only one pack. This is a Canadian-made pack that does meet the standard. It is made through a different technique than the one you have now. We have two brands that do meet the standard.

The regulations have been worked on for several years. In 2002, a consultation paper from Health Canada was widely circulated to the public concerning these regulations. The regulations at present have also been circulated to the tobacco industry. The tobacco industry has had these preliminary regulations in hand for some time.

This bill was passed unanimously in the House. It also has the full support of the minister's office.

I might conclude by saying that cigarette fires are especially dangerous because when a cigarette comes into contact with flammable product, such as mattress, bedding or furniture, that product start smouldering. The smouldering continues undetected for some time, following which smoke and toxic gases spew out from the smouldering material. The fire will continue undetected for many hours until it violently bursts out into flame.

Cigarette fires incur many more fatalities proportionately than other fires — for example, those started by cooking equipment. Alcohol is involved in about 50 per cent of these fires. People drink and then fall asleep while smoking. Unfortunately, the number of children, handicapped and elderly killed or injured is much more elevated than in other fires. This is a very important public health issue.

Of course, no security measure is perfect. You can argue back and forth about safety belts in cars, but we must try to reduce the number of deaths and injuries. As a physician, I can tell you that burns are a terrible injury, with permanent handicaps and disfigurement. If we can only reduce by a certain percentage these tragedies, these catastrophes, by doing this, it will be a major step forward. This bill will have an immediate effect, as soon as it is passed, and I strongly urge the committee, on a public health basis, to approve this.

The Deputy Chairman: Thank you, Senator Morin.

Senator Cochrane: Senator Morin mentioned that this has the support of the minister's office. Perhaps we should hear from these people as well, Madam Chair.

The Deputy Chairman: I have noted that, and will so advise the chairman.

Senator Cochrane: Senator Morin, have these cigarettes that you have been passing around been found to be effective?

Senator Morin: Yes. Tests were done by Health Canada — and no test is 100 per cent perfect. Two cigarettes have been tested by Health Canada — 60 of them have been tested, as a matter of fact. The Merit cigarette you have in hand is not sold in Canada; it is sold in the U.S. and in New Zealand. The More Menthol, which you have in hand, is sold in Canada. These two cigarettes meet the specific test that I mentioned, which has been implemented in New York and in Canada. This will be the test that will be used by Health Canada, which is the same test as the New York State.

Senator Cochrane: If that is the case, will this be the type of manufacturing that will be recommended to other tobacco companies?

Senator Morin: Philip Morris has a patent on this, so it cannot be copied. This may be an issue, I must say, for the tobacco industry, because there is a patent on this, and I realize that this is an issue. If I were in the industry, this would be an issue. I do not know if Philip Morris plans on selling this product in Canada. Right now, it is not on sale in Canada, but my point is that the technology is there. It does not affect taste. It does not affect toxicity. It is invisible, because it is a very thin band of paper that is applied at regular intervals on the cigarette. That is the technology. I realize that it is a matter of patent and research and so forth.

However, there are other technologies available for these fire-safe cigarettes. They have to do with the density of tobacco. As well, there is a burning agent in the paper, which is citrate, and this could be removed. As well, the size of the cigarette is a factor. There are various other technologies.

That being said, this has been an issue in Canada since 1999, at least. Health Canada has been in parallel and probably pushed on by the bill. The bill has helped to pushing this issue forward.

Canada is a leader in the world as far as tobacco control, and I am very proud of our country on that. This is another issue where Canada will take the lead. I hope they will do this quickly. As a physician, I think that is a very important issue. I embarked on that with enthusiasm when the bill got to the Senate, and I took the time to research it carefully. Before coming before the committee, I wanted to be sure that I was well prepared. That explains why it was in the Senate for some time.

Senator Cochrane: The results of this New York experiment will be accepted in Canada, will they?

Senator Morin: Two tests have been found or discovered by ASTM, an American organization that deals with tests for the American government. They have found this test and are applying it to New York. Health Canada has also done a similar study of various tests, and they have taken the decision that this test standard that was referred to that has to do with filter paper and so forth will also be the test that will be applied in Canada. It may not be perfect, but no test is perfect.

Senator Cochrane: So Health Canada has approved this?

Senator Morin: Health Canada has approved this.

Senator Kinsella: Senator Morin, given that the bill went through the House of Commons, with all the support it had here, and was in the Senate in the fall and now is back with us again — given all that time, how do you explain that we still end up with a bill that has a pretty obvious error in it? How do you propose that we solve that problem? We cannot have a section of a bill coming into effect before the bill itself comes into force.

Senator Morin: There are as many lawyers as there are opinions, but our own legal opinion on this is that the bill is perfectly legal. It will take effect on December 31, 2004, and of course the regulations at that time will also fall in place. It does not change the fact that the bill will come into force on December 31, 2004. We think the timeline is sufficient, as the process is well advanced.

This was done in consultation with the legal experts in the other place. This bill was perfectly legal as it is. That does not change the time of its coming into force on December 31, 2004.

Senator Kinsella: I would recommend, honourable senators, that we have someone from the Department of Justice attend here and give us advice on that.

The Deputy Chairman: I take note of that recommendation. Are there any further questions?

Senator Kenny: I do not see the need for any further advice or counsel from either Health or Justice on this. The bill is either legal or it is not, and if it is not, it will be dealt with accordingly.

The effect of this bill is for Parliament to order the administration to come forward with regulations or to explain why they have not.

Clause 3 reads:

(a) the Minister shall prepare a report;

(b) the Minister shall cause a copy of the report to be tabled in each House of Parliament on any of the first ten days on which that House is sitting after June 30, 2004; and

(c) each House shall refer the report to the appropriate Committee.

Clause 4 reads:

The report is to include

an explanation as to why the regulation has not been made;

a schedule for the making the regulation;.

This is a direction from Parliament to the executive to do something. It is not something that prescribes anything in particular. It is to say, do something, and then tell us what you have done, and then we will deal with that later on. We do not need anyone's advice about that. We do not need to hear from Justice or Health Canada about that. This is whether parliamentarians want the government to do something or not. We are not even telling the government exactly what to do. We are saying to the government: You, in your wisdom, come back to us with a report back on how these cigarettes should be made.

I would be in favour of hearing from Health Canada and Justice Canada, et cetera, if we were saying that it should be so many ounces of paper or that the paper should have a certain porosity or that it should burn at a certain rate. In that case, I would have experts appear before the committee and hold a hearing that would go on for a month.

However, this is a question of parliamentarians asking the executive to address this issue and report back to us in a timely way. It is a pretty simple question, senators, that does not require a great deal of thought. If you think it is a good idea to have regulations, we have asked the government and its officials to prepare regulations and bring them back to us. I do not think that is an excessive or unusual request for Parliament to make of the executive. I think the sooner we move to clause-by-clause consideration, the better it would be.

The Deputy Chairman: One moment please, Senator Kenny. Senator Eyton, do you have a question?

Senator Eyton: Yes. We heard from previous witnesses that, while there have been many suggestions for testing, they had not established a protocol for that testing. I am curious about your assurance that there was a Canadian test that came to certain conclusions. First, could you describe how detailed, thorough, professional or comprehensive was the test? Was it one level of laboratory and one individual deciding on a protocol and a process? Was it beyond that?

Second, you assured us that the new design for the cigarettes would not affect the smoking experience, taste or toxicity. At one time, I was a part owner of a patent for a new kind of cigarette. While I think the science behind it was fair enough, the patent was never applied because that new design did affect the smoking experience, toxicity and taste. How are you able to assure us that this new design of cigarette will not affect the smoking experience, taste and toxicity?

Senator Morin: Thank you, senator. I should like to quote Mr. Denis Choinière, Director, Regulations and Compliance, Tobacco Control Programme, Health Canada, on these two specific points. He said: ``Through a variety of meetings and tests, we have ascertained that some of the concerns raised require that we pursue more in-depth research in relation with the test. After review of the comments and our own analysis, we concluded that the ASTM standard E2187-02b is still an appropriate standard to serve as the basis of regulations we are working on. This is the same method we proposed last December 2002 and will be used by New York State.'' He also said: ``We have tested brands against Canadian brands and the only one so far in Canada is More Menthol,'' which you have.

Concerning the toxicity, the only two products tested, as I stated, were Philip Morris, which you have. Mr. Choinière said: ``We concluded, after reviewing the results, that although there were changes in the smoke chemistry, namely a significant increase in the carbon monoxide level, they did not transfer to any meaningful changes in toxicity.'' The following was said when he was asked about the introduction of a new kind of fire-safe cigarette: ``Health Canada will require that manufacturers perform adequate toxicity testing before any modifications are made to the cigarettes.''

This is in consideration of future fire-safe cigarette introductions with additional additives.

Senator Kenny: We are getting beyond the scope of this bill. These questions would properly come forward when the minister reports back to Parliament, but not now, although it is interesting and important. It is beyond the scope of what we have before us. This bill is simple, clear and straightforward, and is a request for action. These questions are all appropriate once the bill has become law.

The Deputy Chairman: Senator Kenny is correct, but I have allowed this discussion to range a little further, so it is a little late to change the direction of the discussion.

Senator Kenny: It accounts for your Liberal leanings.

The Deputy Chairman: It is late in the game to restrain the debate and I take that as my personal responsibility.

Senator Buchanan: Senator Morin, I am curious about the New York situation where there is a law to ensure that all cigarettes sold would have the low-ignition propensity.

Obviously, as I understand it, there are no cigarette manufacturing plants in New York so they must be manufactured in other areas. They must be manufacturing cigarettes for use all over the United States with the low- ignition propensity. Would they have a separate assembly line for cigarettes bound for New York?

Senator Morin: I am sorry, senator, I do not know the answer to that. Some members of Health Committee that smoke have said that they prefer this LIP. Normally, when a smoker leaves a cigarette in an ashtray to do something else for a moment, the cigarette will burn down before the smoker can get back to it. There may be some consumer advantage here.

The Deputy Chairman: Are we finished with questions?

Senator Milne: After I became so irate over the presentation by Mr. Fortier, I suggested that we hear from Mr. McKay as a witness. I notice that Mr. McKay is in the room today. Perhaps we could have him briefly before us to speak to some of the remarks by Mr. Fortier.

The Deputy Chairman: What is the committee's wish?

Senator Kenny: If Mr. McKay is prepared to appear, I am prepared to hear him.

The Deputy Chairman: That is fine. Mr. McKay, would you speak to this issue for the committee today?

The Honourable John McKay, M.P., Parliamentary Secretary to the Minister of Finance: I want to thank senators for hearing us, particularly Senators Morin and Kenny.

This has been a five-year project. I introduced Bill C-260 in 1999 and there was a great deal of toing and froing over this bill during that time. The genesis of this bill was actually a CBC documentary on a horrific fire in Brampton, Ontario. I think it was by coincidence that I ran into one of the lawyers for the plaintiff and one thing led to another. It was interesting because I had the same reaction that all of you would have when seeing such a video. It was a horrible thing; careless smoking. I never made the connection that something could actually be done about ``careless smoking.'' I shifted the argument from blame the furniture to dealing with cigarettes, as such.

I thought that Senator Kenny spoke as eloquently as anyone with respect to the simplicity of this bill. This simply requires the minister to tell Parliament what he or she has done about reducing the ignition propensities of cigarettes. Members need to keep that in focus as they consider this on a clause-by-clause basis.

It is a relatively simple bill. There has been much work done by Health Canada on this.

Senator Morin outlined the various things that have been circulated. A questionnaire has been circulated to various stakeholder groups, including seven manufacturers. A summary of responses was presented in the other place. Stakeholders were divided into three groups. The A group was the manufacturers; the B group were people such as public health and safety officials. The C group was non-governmental organizations, for which the responses were predictable.

The curious part of the responses of the manufacturers was the divisions within the manufacturers. I would not want senators to have the sense that the position of the industry is monolithic. Some manufacturers are advanced in their thinking on this.

To the question regarding support for Health Canada's objective of reducing fire hazards, five of the manufacturers gave conditional support and two had no comment. On the question of support for proposed regulatory action, four manufacturers gave support conditionally, two noted opposition and one had no comment. Four manufacturers said that the issue of increased toxicity requires further study and three expressed no opinion.

There is not a monolithic view on the part of the manufacturers. Senators need to keep that in mind: I would encourage you to review this.

I want to particularly acknowledge Physicians for a Smoke-Free Canada. They have been very helpful. Smokers Rights Canada has have been helpful.

Senator Milne: Mr. McKay, if you could reply to the accusations that were made in another presentation. The first accusation is that the plaintiffs in some lawsuit were the architects of this bill. The second is that you did not recuse yourself as a member of the committee because your interests were in conflict with the submissions being made to that committee in the other place.

Mr. McKay: That is an interesting argument. I sat on the Justice Committee for six years. We had private member's bills come before us frequently. The members who were the proponents of a bill sat on the committee while the bill was being heard. I am surprised by that comment. I do not know the practice here, but the practice there is that the proponents sit on the committee and ask questions like regular committee members.

As to this being a plaintiff's bill, life is more complicated than that. We had some real discussions with the parliamentary lawyers as to how to phrase this bill. We felt the simplest thing to do was to call on the minister to proclaim regulations. To the great credit of the previous and current health minister, they support this bill because they think it is an important thing to do.

I hardly think you can be accused of being a shill for plaintiffs.

The Deputy Chairman: Any further questions?

Senator Kenny: I move that we go to clause by clause.

The Deputy Chairman: It has been moved that the committee proceed to clause-by-clause consideration.

Senator Cochrane: I think we should hear from Health Canada. I am not for or against this bill, but we have not heard from Health Canada. I want to hear about the situation in New York. I want to know where they are coming from and have it on record. We owe it to ourselves to get as much information as is possible. We have done that with all bills.

Senator Eyton: I agree with that.

Senator Kenny: This is an order instructing them to do things. It is fine if people are curious and want to talk to Health Canada; however, this is an order from Parliament to the department to take a course of action and to report to us.

Asking Health Canada to appear would unnecessarily delay the passage of this bill, which was already unfortunately delayed in the last Parliament. When Health Canada reports —

Senator Cochrane: So what?

Senator Kenny: I did not interrupt you, senator, when you had the floor. When Health Canada comes back with a report, I, for one, plan to lead the charge on grilling them about why the regulations are the way they are or why they have not taken action the way some of us expect them to take action on this.

However, this is simply an instruction. This is an order from Parliament to the government to do something.

It is quite appropriate for us to do that. Health Canada will have its turn before this committee when it comes back with the report ordered by this bill.

The Deputy Chairman: Any further debate on this question? I am informed that Senator Banks had planned to do clause by clause on this bill next week, whether the Senate is sitting or not.

Senator Kenny: That was not what he told me. I do not know who sent that note.

The Deputy Chairman: It is from his assistant. I am in the hands of the committee. Is there further discussion on this?

Senator Cochrane: Madam Chair, have we decided not to hear Health Canada?

The Deputy Chairman: There is a motion on the floor. We have to vote on the motion. There is a motion to go to clause-by-clause consideration.

Senator Cochrane: It is not on our agenda.

The Deputy Chairman: I realize that it is not. I checked the rules. It has been the practice to have notice of clause by clause, but it is not in the rules. Therefore, it is in the hands of the committee.

Senator Cochrane: I thought that you would take my request.

The Deputy Chairman: Indeed. However, there was a motion on the floor, and we have to deal with the motion. Any further debate on it?

All those in favour of the motion, please signify.

Some Hon. Senators: Agreed.

The Deputy Chairman: Those opposed, please signify.

Some Hon. Senators: No.

The Deputy Chairman: The motion is carried. The meeting is adjourned.

Senator Kenny: No, you must go to clause by clause. We passed a motion.

The Deputy Chairman: It has been agreed that we go to clause-by-clause consideration.

Honourable senators, shall the title stand postponed?

Hon. Senators: Agreed.