Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for November 8, 2006
OTTAWA, Wednesday, November 8, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-1001, respecting Scouts Canada, met this day at 4:06 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is our first meeting on Bill S-1001, respecting Scouts Canada.
The summary of the bill indicates that it consolidates and updates the statutes governing the corporation known as the Boy Scouts of Canada to reflect more accurately its current status in Canada. It also changes the name of the corporation to ``Scouts Canada'' and makes other technical and incidental changes relating to the administration of its affairs.
To begin our work on this bill, I am pleased to welcome our colleague, the Honourable Senator Consiglio Di Nino, the sponsor of the bill.
Welcome to the committee. I note that with you is Rob Stewart, the Executive Commissioner and Chief Executive Officer of Scouts Canada.
Welcome to you as well, Mr. Stewart.
Hon. Consiglio Di Nino, sponsor of the bill: Thank you for allowing the CEO of Scouts to appear before you. There may be some questions that he can answer better than I can.
This bill is before the Senate for the third time. It is principally a bill to change the name of the Boy Scouts of Canada to reflect the fact that Scouting has been coed for a number of years. That started in 1974 with changes to one of its programs. Six or seven years ago it became officially coed throughout all the programs offered by Scouting.
You heard me talk about this issue for the third time on June 27, when I introduced this bill. The bill addresses the issue of the appropriate reflection of the status of Scouting as it is today, which serves both boys and girls and young men and young women in this country.
Correspondence has been received from some individuals who suggest that this bill changes some of the bylaws of the corporation. The original bill was introduced before the changes to the bylaws that some members of the Scouting movement are questioning, took place. Bill S-1001, in its original form, which is basically the same as this bill, was introduced by me previous to the annual general meeting at which changes to bylaws were made. The changes are now being questioned by some members of the organization.
I think I need say no more. I am here to respond to questions. I am happy to go through the background of the bill, but the last time I brought a bill before this committee the chair told me that if I spoke too long there would be no time for questions from colleagues.
Mr. Chairman, I would be happy to engage my colleagues in dialogue on this bill.
The Chairman: Thank you, Senator Di Nino.
Clause 1 of this bill reads:
The Corporation created by chapter 130 of the Statutes of Canada, 1914, is continued under the name ``Scouts Canada''.
Could you tell us why that change is taking place?
Could you also tell us a little more about the concerns you have heard about this bill? Have people written to you? Have you received calls? If so, what are the main complaints or concerns expressed? We have all received packages of materials, but I want to hear from you.
Senator Di Nino: The preamble of the bill goes through the history of the legislation dealing with this issue. In 1914, the corporation was incorporated by an act of Parliament as the Canadian General Council of Boy Scouts Association, as a branch of The Boy Scouts Association, which itself was incorporated in Great Britain in 1912 by Royal Charter granted during the reign of King George V. The preamble goes on to describe other changes that have taken place.
This bill intends to create a change in the statutes of the 1914 incorporation to change that name to Scouts Canada. That change is what clause 1 of the bill refers to.
As to the concerns expressed by individuals who have written to us — and I think there are three in particular — they deal with the difference of opinion on how the organization should be run and organized.
I have been informed that when this change took place in 2003, there were three main opponents to the changes in the bylaws. Two of the three main opponents are now on the national board of this organization, including its chair, Glenn Armstrong. Ted Claxton has sent us some correspondence, as has Keith Martin — not the member of Parliament from British Columbia.
If I understand Mr. Claxton correctly — and Mr. Stewart will make some comments on this — he is not in agreement with the contents of the changed bylaws. That is his opinion, which he has every right to hold and to express.
Having said that, it is my understanding that the vast majority of the membership of scouts was in favour of the changes. It bears restating that two of the most critical opponents at the time are now on the national board of Scouting, including its chairman.
Rob Stewart, Executive Commissioner and Chief Executive Officer, Scouts Canada: That is correct. This process began before my time as CEO. The principal purpose for the change was to reflect the fact that we are a coed movement in Canada. The opposition is to our By-Law No. 2, to the way we have structured the organization and the way the governance model works. The challenges relate to democracy and the desire to give more people a say in the future of the organization.
In fact, since the change of the bylaw, there are now more voting delegates to our annual meetings. Prior to the change in our structure related to the bylaw, we had three representatives for each of the provinces and territories. We have now restructured and we have 20 councils, each of which has three votes. You can see that the number of votes has increased. Embedded in that change is that one of the three delegates must be a youth representative of our organization. We have a mandatory vote from our youth and have mandated that there be four young people on our board. We have tried to strengthen that representation.
Our board and organization continues to ensure that we use appropriate processes to select the voting delegates to our annual meeting.
Senator Ringuette: As a former Girl Guide who sold many bushels of apples in New Brunswick, I cannot help but feel sad that the words ``Girl Guides,'' which reflect your coed structure, are not used in this bill.
Senator Di Nino: Senator Ringuette and I have become good friends. Now I understand why — Girl Guide and Boy Scout. That is good stuff.
I have been involved in the Scouting movement for a long time and I would like to clear up one matter quickly.
One letter that was received, from Mr. Claxton, I believe, stated that I was on the board when these changes were made. I have not been on the board for a long time. I was when I was president of the Greater Toronto Region, which was before some of our Senate colleagues were born.
However, I remember taking part in the debates about whether Scouting should be coed. There were extensive discussions and consultations long before it happened in other than the senior segment. In the GTR we consulted extensively with the Girl Guides, and they never expressed concerns or opposition. They understand that some girls prefer to be part of a coed organization. We are really brother and sister organizations that work closely together.
The Girl Guides and Boy Scouts had extensive dialogue on this issue before the final recognition of Scouts as coed.
Mr. Stewart: To echo Senator Di Nino, we get along well with the Girl Guides. We have ongoing dialogue and we are good friends. We collaborate when we can.
The coed issue was a grassroots movement that started in rural Manitoba where they had challenges finding enough leaders to run programs for both boys and girls. The solution they found was to include girls. As you can imagine, in such a cultural-bound and historic organization, it caused some trepidation on both sides. A number of experiments were done to ensure that the fit was proper.
We do not raid the membership of the Girl Guides or actively recruit from it. Our female registration is between 10 and 15 per cent, so, given market shares, I do not believe that we have had an impact. As Senator Di Nino said, I do not know how many members are former Girl Guides. I suspect that some members come because their brothers have been with us.
The Girl Guides' philosophy, which I respect, is that they want girls to be in positions where they learn from female leadership. We continue to have good relationships with the Girl Guides.
Senator Ringuette: I had the wrong impression of this bill. I thought it merged Girl Guides and Scouts Canada.
Mr. Stewart: We are two separate organizations. We get together regularly to cry on each other's shoulders about the challenges of our not-for-profit status. Girl Guides still sell millions of dollars worth of cookies every year, so they are doing well.
Senator Ringuette: In New Brunswick we were poor, so we had to sell apples given to us by our apple producers.
Senator Milne: Senator Banks brought some concerns to the attention of the Senate during his second reading speech on this bill. I am not sure where this diagram came from, but it seems to be a closed circle.
Following up on what Mr. Stewart said, it is now more democratic and you have 20 organizations per province that can each send three individuals to the annual general meeting?
Mr. Stewart: No, we have 20 councils across the country. Many provinces, such as Manitoba and Saskatchewan, are single-council provinces. Ontario has eight, British Columbia has three and Alberta has two, based on population. We have 20 councils across the country, each of which can send three delegates.
Senator Milne: What other changes have been made recently in the way you are governed, without having an act of Parliament to make those changes?
Mr. Stewart: We changed our governance model to mirror closely the Carver governance model. One concern we had under our old method of governance and the old structure was who is accountable for what. We are ultimately a program-based movement and wanted the commissioners to be accountable for operating the councils.
Senator Di Nino: The commissioners are volunteers.
Mr. Stewart: Yes: I am the only paid employee on the board of governors. Everyone else is a volunteer. Prior to our most recent structural change, we had any number of councils making any number of bylaws and policies. You can imagine the hodgepodge of policies and the liabilities that left us with.
We wanted to define accountability more clearly by having one board, one policy-making body, and an administrative committee that would enact those policies. The councils would then be somewhat autonomous in terms of carrying out the policies and programs of the organization.
That change was made for a couple of reasons. Some changes were made to refine responsibilities. Others deal with the risk management challenges we were encountering, particularly from insurance companies that asked who was responsible for what, who was liable for what and who makes the rules in the organization. When we say that any number of people can make rules and policies in the organization, that causes concern from a risk-management perspective and that raised some challenges for us.
Our structure, which was changed, now reflects the 20 councils that meet with the board five or six times a year. It reports to the membership every year at an annual meeting at the end of November.
Another change is that I, as chief executive officer and executive commissioner, now have more responsibility to run the day-to-day operations of the organization.
Senator Milne: When you say they report to the membership, they do not report to the membership at large but rather to the group at the annual general meeting?
Mr. Stewart: That is correct. We report to the voting delegates who come to the annual meeting representing their councils.
Senator Milne: If you can make this change without an act of Parliament, why do you not continue that way and ask us to change only the name of the organization?
Senator Di Nino: I do not understand the question.
Senator Milne: This bill not only changes the name of the organization — with which I have no problems whatsoever — but also makes a lot of changes to how it is governed. It refers to buying and selling mortgages, investing, dealing in land, property, et cetera. It goes through a whole lot of things that the organization wants to do, which I assume it is already doing. Why do you need this legislation?
Mr. Stewart: Because I was not here when this process started, I am not sure, but I think those provisions are part the housekeeping elements referred to in the bill. The principal matter was the name change, but given that we do not regularly go before Parliament to have an act changed, the intent was to take care of the housekeeping matters so that we would have a bylaw to govern the organization and the bylaw would have the elements that are laid out in there. The bill more clearly defines our responsibilities related to acquisition and disposal of properties and such things. That was really the intent. When there is reference to administrative cleanup, that is what the bill refers to.
Senator Milne: I have some concerns. You are managing fine without this legislation. You really only want the name change. I question the need for that additional complex part of the bill.
You said there were three main objectors, one being Mr. Armstrong, who is now chair of the board of governors.
Mr. Stewart: Yes.
Senator Milne: Where is he from?
Mr. Stewart: He is from Winnipeg.
Senator Milne: Would it be prudent to invite him and Mr. Claxton to come before the committee so we can hear both sides of the argument? Would they be at each other's throats? Could we invite them as a panel?
Mr. Stewart: They are Scouters; they will be respectful.
Senator Di Nino: We should remind everyone that Mr. Claxton and the people who have raised questions are still members of the Scouting movement. Within any organization there are people who disagree. This is healthy, democratic and certainly not unwelcome. Therefore, I believe it is appropriate to hear from them.
As to administrative changes, the bill states that the head office of the corporation is in Ottawa. That has been the case, although it was never stated in the bylaws. It states that annual general meetings must be held. That is already happening.
When I asked the lawyer about this, he said that the bill is simply to legalize what has been happening. There are few, if any, substantive changes other than what has already been taking place.
I believe it would be appropriate for others to make representations.
The Chairman: In addition to the names Senator Milne recommended, are there any others who you believe could add value to the committee's deliberations?
Senator Di Nino: I did not anticipate any problem with this, and I am not complaining. I could probably fill the Senate with hundreds, if not thousands, of people who would come here in support of the bill. I do not think that anyone wants that.
Time is of the essence. As I said, 2007 is the centenary of Scouting. I would like this to be dealt with before the end of the year, although that is up to the committee. I would be satisfied if you had a meeting to hear from two or three people from either side for 20 minutes each. That would add value to the Scouting movement and to this process.
The Chairman: Thank you.
Senator Milne: I agree.
Senator Di Nino: I have no problem with that suggestion at all, as I stated in the Senate.
Mr. Stewart: To clarify a point made by Senator Di Nino with regard to the relationships, Glenn Armstrong and Keith Martin, two of the opponents, held positions of leadership within the organization. At the time, Mr. Armstrong was the council president for Manitoba and Mr. Martin was the council president for British Columbia. They had a number of concerns with the bylaws, so they led a charge to enforce a dialogue, as a result of which over 50 changes were made.
Senator Milne: Was that before this bill?
Mr. Stewart: The bill was already here. You are correct that there are a couple of things in the bill. There is the name change. It is my interpretation that the challenge being made is more related to democracy or lack thereof within the organization.
Mr. Martin and Mr. Armstrong challenged a whole host of items within the bylaw, which caused the organization to regroup and have further extensive consultations with the councils that had concerns about the way the bylaw was laid out. As a result of that process, over 50 amendments were reviewed and the majority decision was to accept the bylaw that we currently operate under in Scouts Canada.
Senator Milne: None of those amendments are reflected in the bill before us?
Mr. Stewart: No: This bill speaks broadly of the bylaw. The bylaw by which we have governed is a thick document that lays out roles and responsibilities, councils, voting, who the members are and such things. That is what the discussion was at the time.
Senator Milne: This bill enshrines that bylaw as it stands, or can it be altered in the future?
Mr. Stewart: I would have to ask someone with more qualifications than I have, but my understanding is that it would not enshrine the bylaw, that the bylaw could be amended. As an example, on the issue of democracy, we are still working to ensure that we reach agreement. You can only imagine how much fun it is in our country to have everyone to agree on a voting procedure. We are still working on a piece that clearly provides guidance as to how the voting delegates are chosen. It is currently done in a number of different ways across the country.
My view is that we would retain the right to amend the bylaw without using the legislative process.
Senator Di Nino: Clause 7 of the bill states:
At any annual or special general meeting, the Corporation may make, amend, or repeal by-laws for all purposes of the Corporation and, without limiting the generality...
That is absolutely clear. This is not intended to do anything other than make administrative and technical changes that should have been made a long ago, in addition to changing the name of the organization.
Senator Andreychuk: If I recall, it is under the not-for-profit portion of the Canada Corporations Act that, if you change your constitution, not your bylaws, you must go through this process.
If that is the case, is this the sum total of your constitution as opposed to bylaws? How do you get to this point? I know that the corporations branch has a standard constitution for those organizations that do not have a format to follow. How do you comply with the Canada Corporations Act, or have you gone beyond what the act requires?
Senator Di Nino: That is a good question.
Senator Milne: They need to get back to us on that.
Mr. Stewart: I am not sure about that.
Senator Di Nino: My understanding is that the bylaws of the corporation will govern the organization, and this legislation would be in support of rather than in addition to. The bill states clearly it is still the right of the organization to make, change and amend bylaws.
It would be best to have a proper legal answer.
Senator Andreychuk: Maybe we should have a witness refresh our memories as to why this bill is before us. I believe that some religious institutions have asked for the same thing. Senator Corbin has asked why we should pass judgment on organizations in this way and he said that this is an archaic way of doing it. We have been appealing to governments to look into this situation. I presume this is one more organization in that framework.
Senator Di Nino: That is right.
Senator Andreychuk: We should allow Scouts Canada to govern themselves in a more modern way and be accountable to their membership rather than coming to Parliament. It makes us uncomfortable.
Senator Di Nino: With all due respect, Scouts Canada does govern itself. That is the point I am trying to make. This bill does not affect the bylaws and the running of the organization other than to reflect those things that were intended to be reflected in the original charter of 1914.
The Chairman: Senator Di Nino, I am new to this committee, as you know. The researcher from the Library of Parliament handed me a document that I have not seen before, which responds, in part at least, to Senator Andreychuk's point.
It is the report of the Standing Senate Committee on Legal and Constitutional Affairs of Thursday, March 25, 2004. To their third report they appended the following observations:
On the other hand, your Committee believes that the time has passed when private corporations incorporated by a Special Act of Parliament should be required to return to Parliament to modernize their governance structures. Your Committee has previously recommended that the Canada Corporations Act should be amended to permit these corporations to regulate such matters internally, and we reiterate that recommendation in the context of Queen's Theological College and all other Special Act corporations in the same situation.
Part III of the Canada Corporations Act is entitled ``Special Act Corporations.''
Senator Di Nino: I understand that and was aware of it.
Senator Joyal: I was at the committee when Senator Andreychuk made that observation. I believe the committee was unanimous that it was appropriate.
It surprises me that the bill refers to the Canada Corporations Act only at clause 12 where it makes an exception to section 102 of the act. It does not say that the other parts of the act apply to the Boy Scouts. It is odd that there is not a clause in the bill stating that for all other matters the Boy Scouts of Canada fall under section 3 of the Canada Corporations Act. We know the regime of the Canada Corporations Act, but this bill only mentions that act with regard to an exception, while in fact the act does not seem to apply to them.
To me, as a lawyer, that seems strange.
If the Canada Corporations Act does not formally apply to the Boy Scouts, you should at least have the financial statements tabled each year at your general assembly. That is not mentioned in the bill. One important thing with regard to raising money is to publish financial statements on a yearly basis and to table and approve them at your annual assembly. That is the normal practice for any corporation, be it commercial or non-profit, under Part III of the Canada Corporations Act.
Clause 6 of the bill reads:
At each annual general meeting of the Corporation, the Corporation shall elect an executive committee from among its members...
It also says that at its annual meeting the corporation may make bylaws. I read the bylaws to see if they refer to approving the financial statement and electing the auditors. Normally, those two motions are essential at any general assembly.
Senator Andreychuk: Senator Joyal, if I recall, you led the discussion previously on what the Canada Corporations Act demands to be in the constitution and what it allows to be in bylaws.
Senator Joyal: Yes, we have had this discussion before in relation to another bill. I was trying to learn what you do not have in the bill that is in the Canada Corporations Act and vice versa. I do not have the Canada Corporations Act before me, but I raise this point because we should have some information from your legal advisers. These questions will be on the record, so they can read them.
I see issues with the French version of the bill. Clause 1 of the bill says ``The Corporation.'' The bill refers to chapter 130 of the Statutes of Canada and in French, it is called ``La personne morale.'' In clause 2, the corporation is referred to as ``L'association.'' Clause 3 says, ``The Corporation has the capacity of a natural person....'' In French it reads, ``L'association a la capacité d'une personne physique....''
It seems odd to me to refer to ``une personne physique'' for a corporation. There are issues in all kinds of legislation that might apply to ``une personne physique.'' We understand that a moral entity has a status that ``une personne physique'' does not have. If you say that it is ``une personne morale'' in clause 1 and then say that the corporation has the capacity of a natural person and, subject to this act, all the powers, rights and privileges of a natural person, I can give you a list of rights and privilege that a natural person has according to the Charter and the Constitution that a corporation does not have.
Senator Rivest: Marriage.
Senator Joyal: Yes, among others.
Senator Di Nino: Do you really want to bring that up?
Senator Joyal: I thought about it, but I did not want to mention it. He reads my mind; that is the problem.
Senator Di Nino: I suspected that.
With regard to the first two issues you brought up, there is obviously an annual financial statement prepared and, yes, the auditors are properly appointed. You know that is the case, but I do not know whether it belongs here from a legal standpoint. I know nothing about the law.
As far as the French is concerned, one relies for the preparation of bills on the lawyers and on our own law clerk. I did not look at the French in that manner. That is a good observation. I appreciate that it must be changed. That is a technical change that I think can be accomplished relatively easily.
Senator Joyal: The issue of membership needs to be refined. Clause 1(2) reads, in French:
L'association est constituée des personnes qui la composaient à l'entrée....
In English it reads:
...consists of those persons who are members of the Corporation....
In clause 6, the bill reads:
À chaque assemblée générale annuelle, l'association élit un comité exécutif parmi ses membres....
It does not say whether ``the members'' are only the board members, the present board members, or any person who is a member of the Boy Scouts. There is at least a two-level imprecision there that probably should be clarified.
As I stated earlier, if the bill referred to section 3 of the Canada Corporations Act, we would know exactly the legal regime under which the Scouts would fall. This bill could digress from that section to acknowledge your particular way of operating. The problem is that you propose something that does not cover everything and there is no reference to where we can get the answers.
There is some legal imprecision on the new status of Scouts Canada. If the organization takes the opportunity to rewrite their constitution, it deals with the areas that are left blank. Under section 4 of the act, the bylaws of a corporation must set out clearly the responsibilities of a non-profit corporation. When the corporation is not covered by section 3 of the Canada Corporations Act, it must put it in its constituting act, and the bill covers some and leaves others out. There is some imprecision in terms of membership.
There are three levels of a corporation. There is the membership at large, which elects a board. The members of the board elect the executive. That is the normal structure of any corporation, be it commercial or non-profit. This bill does not make clear how the corporation operates. I do not question how it prefers to operate, but we must understand clearly from reading the statute how the organization functions. Is Scouts Canada an exception to the Canada Corporations Act or does it fall under the act with its normal operations? Where does Scouts Canada differ from the common law regime of the Canada Corporations Act?
That is the problem. That is why we made the observations we did two years ago, which the chair read. There is a discrepancy. I have no problem with the request, but we need to understand the request with regard to the obligation in section 3 of the Canada Corporations Act, because the corporation is obviously non-profit.
Senator Di Nino: In the last three Parliaments, the issue has arisen of why corporations should come to the Parliament of Canada with this legislation when it can be done through the Canada Corporations Act. Scouting is one of the oldest organizations in the country and it been symbolically associated with this. It was granted its charter through an act of Parliament. Scouting has always had a closeness to the development of our country and all entities of our society. Scouting wants to keep that symbolism, and I support that. When this issue ame up in the Senate, I responded to Senator Corbin that Scouting has asked that this be continued. Obviously, Parliament must make its choice.
The Scouts are unquestionably governed by the Canada Corporations Act, as are all corporations in this country, unless they are excluded for some reason of which I have no knowledge.
This discussion is useful in that Mr. Stewart and I are not capable of answering these legal questions. We wanted to have our legal counsel attend today, but he was not available. We were told that he is out of the country. However, I wanted to impress upon colleagues that, for the reasons I have stated a number of times, we would like to have this bill dealt with by the Senate as soon as reasonably possible so that the House of Commons can deal with it early in the new year in order that it can be finally dealt with before the celebrations for the one-hundredth anniversary of Scouting.
If a convenient time for the committee could be found in the week after our recess, or shortly thereafter, we would be pleased to hear from those who have some concerns. That is why we are here. I am happy to do that and would urge the chair and the committee to arrange that meeting in the near future so that we can send this bill to the House of Commons before we rise for the Christmas break. Hopefully the House of Commons will deal with it expeditiously at the beginning of the new year.
The Chairman: Thank you. This committee normally has a lot of government legislation before it, and government legislation has traditionally taken priority over private bills. The committee will keep that suggestion in mind.
Senator Milne: Mr. Chairman, is it possible for the Library of Parliament to look at the translation issues that Senator Joyal has brought up and see whether there is appropriate replacement wording?
The Chairman: The library will look into that and report back soon.
Senator Joyal: I totally share the concern of Scouts Canada as expressed by Senator Di Nino. I do not think any one of us wants to delay this; we only want to make sure it is right.
The questions we have raised will be in the transcript of the proceedings of the committee. If you pass them on to your legal advisers, the next time we meet they can answer those answers quickly. That would be an expeditious way to deal with this bill. We do not want to create more problems. You already have many to solve. It is expensive to bring witnesses here, but we are responsible, as a house of Parliament, to ensure that we do things appropriately according to the laws of Canada. We do not want to delay this bill. We would be happy for you to have the new statute by your anniversary next year.
Senator Di Nino: I want to thank you for your time. This exchange has been extremely useful. As Senator Joyal suggested, we will have answers from legal counsel who, I hope, will sit here in a week or two.
Senator Joyal: I have one further question. Clause 13(e) says that all the acts mentioned in paragraphs (a), (b), (c) and (d) are repealed, keeping only section 1 of an act that is chapter 68 of the Statutes of Canada, 1968-69.
Perhaps at the next meeting your lawyer could tell us exactly what is in that section that you are keeping while abolishing all the other acts.
Senator Di Nino: Absolutely.
The Chairman: Senator Di Nino and Mr. Stewart, on behalf of the committee I want to thank you both very much for coming today and answering those tough legal questions. Thank you for your overview.
Honourable senators, the committee will continue with an in camera meeting to discuss our ongoing business.
The committee continued in camera.