Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
2nd Session, 35th Parliament,
Volume 135, Issue 52
Monday, November 25, 1996
The Honourable Gildas L. Molgat, Speaker
- THE SENATE
- SENATORS' STATEMENTS
- ROUTINE
PROCEEDINGS
- Post-Secondary Education
- The Estimates, 1996-97
- Asia-Pacific Region
- Code of Conduct
- Divorce
Act
Family Orders and Agreements Enforcement Assistance Act
Garnishment, Attachment and Pension Diversion Act
Canada Shipping Act - Appropriation Bill No. 3, 1996-97
- First Nations Government Bill
- A Bill to Change the Names of Certain Electoral Districts
- Legal and Constitutional Affairs
- Foreign Affairs
- Reflections on the Senate
- Health Care in Canada
- QUESTION PERIOD
- ORDERS OF THE DAY
THE SENAT)
Monday, November 25, 1996
The Senate met at 8:00 p.m., the Speaker in the Chair.Prayers.
The Late Honourable Joseph A. Ghiz, Q.C.
Tributes
Hon. M. Lorne Bonnell: Honourable senators, I stand today to pay tribute to a great Canadian, a great Islander, a man who believed strongly in Canada, who fought strongly for the Meech Lake Accord, and lost, who fought strongly for the Charlottetown accord, and lost, and who fought strongly against free trade, and lost. He was, however, a great Canadian, a great orator and a great family man. He had three great loves. His greatest love was his country, Canada. His second greatest love was his family, and his third greatest love was his province.Honourable senators, I am talking about Joseph A. Ghiz, Q.C., L.L.B., M.L.L., who had a Bachelor of Commerce from Dalhousie University, a Bachelor of Law from Dalhousie University, a Masters of Law from Harvard University, and who on each occasion led his class in school. He received an award at Dalhousie Law School for his leadership there.
As an orator, Joe Ghiz was a joy to listen to. He was able to put sentences together with words starting with the same letter or having the same sound. I believe you call that alliteration, and he could make something sound twice as good as it really was. Consequently, he was elected leader of the Liberal Party in 1981. He was elected to the legislature of Prince Edward Island in 1982. He was elected as premier in 1986 and 1989. He resigned from the Legislative Assembly to take on the job as Dean of Law at Dalhousie University in 1994.
(2010)
When he stood up in the legislature, he would often say: "I am a Canadian and I am proud of it. I am also an Islander of Lebanese descent and I am proud of that." Sometimes members in the opposition parties would say, "You will never get elected on Prince Edward Island. They are all Anglo-Saxons and you are of Lebanese descent." At one point, he called a special press conference to say that he was proud to be of Lebanese descent and extremely proud to be the son of an immigrant. In fact, he received an honorary doctorate from UPEI to commemorate the first immigrants to settle on Prince Edward Island, approximately 100 years ago. Until that time, they were all Englishmen, Irishmen, Welshmen or Scotsmen, but never Lebanese.
Another proud moment in his life was when he went to Bishop's University last year for the graduation of his son, who received a Bachelor of Arts degree. At the same time, Joe Ghiz received an honorary doctorate from Bishop's University. His family was in attendance to witness the ceremony of father and son receiving their degrees. He was an extremely proud man that day.
Honourable senators, we have lost a great friend, a great Islander, a great orator and a great Canadian who really believed that Quebec should be part of Canada. He fought for it, but, in the end, the Canadian people voted the other way.
To his wife, Rose Ellen, his son, Robert and his daughter, Joanne, I extend my deepest sympathies.
Hon. Lowell Murray: Honourable senators, the Leader of the Opposition has kindly suggested that I speak at this point.
Many well-deserved tributes have been paid to the memory of the late Honourable Joseph Ghiz, including the tribute we have just heard from his fellow Islander and friend, Senator Bonnell. I wish to add a few personal recollections.
A partial list of the matters that brought us into frequent and close contact over a period of seven years would include the creation and early activities of the Atlantic Canada Opportunities Agency; the negotiation of economic development agreements between the federal government and Prince Edward Island; the Meech Lake Accord; Canada-U.S. free trade; the PVY-N virus which struck the P.E.I. potato crop; import restrictions imposed by the U.S. Department of Agriculture on P.E.I. potatoes; the need for investment incentives to offset closure of the Summerside air base; the location of the GST processing centre in Summerside; and, of course, the fixed link.
Whether Joe Ghiz and I were in total disagreement, as sometimes happened, or working closely together, which was more often the case in federal-provincial relations, I found great enjoyment and satisfaction from working with him, negotiating with him or just talking with him about areas of mutual concern and responsibility. Other federal ministers felt the same way about him, and the prime minister of the day regarded him with affection and admiration.
As Senator Bonnell indicated earlier, Joe Ghiz had opposed the Mulroney government on free trade as strongly as he had supported us on Meech Lake. His opposition to free trade cost the Conservative Party four seats on Prince Edward Island, including that of a cabinet colleague in the 1988 election, but Premier Ghiz and Prime Minister Mulroney continued to work agreeably together on the fixed link project, the GST processing centre and, finally, on the Charlottetown accord.
When, in 1991, a seat became vacant on the Supreme Court of Prince Edward Island, Joe Ghiz was the obvious successor. The Prime Minister let him know that the appointment would be his. A judicial appointment is seen as a crowning achievement in a lawyer's career, and he loved the law profession for which he was so well suited by temperament and intellect. He thought about the appointment long and hard, and then one day in the summer of 1991 he invited me to his office and told me to ask the Prime Minister to take his name off the list. He felt he had the responsibility to see another constitutional round to its conclusion, so he stayed on for the Charlottetown accord one year later, much to the relief of the Prime Minister and the first ministers involved in those negotiations. His appointment to the bench came four years later, in April, 1995, after his departure from politics and a period served as Dean of the Dalhousie Law School.
Joe Ghiz was an extremely intelligent and able man who understood the problems of government in all their complexity. He was also a sensitive political leader who had, and conveyed to others, a wonderful understanding of the problems as they were experienced in the everyday lives of the people.
One day in April, 1991, he arrived in Ottawa and asked to see me on a matter affecting potato exports. When he showed up at my office, he had a potato farmer in tow and they brought a bag of potatoes in with them. The potatoes were taken out of the bag and examined under the light of my desk lamp as Joe and the potato farmer instructed me on the properties of the potato and on the shortcomings of agriculture officials in Ottawa and Washington. When they were quite satisfied that I had been completely briefed, they made me a gift of the potatoes and went on to their next meeting.
It is well known that Premier Ghiz had more extensive education and training in constitutional law than any of the first ministers of his day. His grasp of these matters enabled him to contribute personally to the detail and substance of constitutional negotiations, as well as to the broad political issues that were involved. In particular, I recall his private intervention with the Prime Minister during a brief recess in an all-night first ministers meeting in June, 1987, suggesting the way out of an apparent impasse.
However, it was his passion on these issues that was remembered by friends and former colleagues when he died two weeks ago. I was present at a private meeting of first ministers in June, 1990 and I wrote down, word for word, what he said during a stormy exchange on the night of June 7. Robert Bourassa refers to this incident in his book Gouverner le Québec. Senator Buchanan, who was there as Premier of Nova Scotia, would recall the occasion and would also remember these words spoken by Premier Ghiz to his fellow first ministers. "You talk about a Canada clause," he said to one of them. "A Canada clause is not worth the powder to blow it to hell." To another first minister he said:
You talk about the juridical equality of provinces. I represent 100,000 people in Prince Edward Island. That gives me 70 times the power of Quebec and 50 times the power of Ontario. Islanders are more equal than anyone and always will be. Do not tell me you have to put it in a Canada clause. Multiculturalism? I am the son of an immigrant. He came and peddled ... dry goods on his back selling ... brushes from farm to farm, and his brother after him, and my grandfather before them. And here I am today, running for political office in the most small "c" conservative province in Canada. And you're telling me that I need protection? Am I going to tell the people of Canada that someone wanted to break up a country for this stuff, for words, for legal and constitutional theories? We are dealing with the heart and soul of the nation. Let's get on with it.
Honourable senators, Prince Edward Island and Canada are fortunate to have had such people as Joe Ghiz in positions of political leadership. I count it as a privilege to have known him and to have had, from time to time, the opportunity of working with him.
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, all those who knew Joe Ghiz personally, and many who did not, mourn his passing, as was evidenced by the diversity of the people and the regions represented at his funeral in Charlottetown.
I counted Premier Ghiz as a personal friend and, on many occasions, a close political confidant. As did many others, I thoroughly enjoyed his company, his good humour, and the warm hospitality extended on numerous occasions in the company of his charming wife, Rose Ellen.
I once heard it said that a man who is swimming against the stream knows the strength of it. The late Joe Ghiz always delighted in swimming in strong currents. He believed that any man or woman, no matter how modest their origins, must sail against the wind, seeking out challenges, testing their abilities to the maximum, believing no man or woman was better than another.
He was a shopkeeper's son who took top honours at Harvard. He was a Lebanese Canadian who proved that those of non-European origins could and would take the highest public office.
[Translation]
While a dyed-in-the-wool Maritimer, he understood that each region of Canada has its own needs and priorities.
[English]
He was an Islander who lit up the national stage with the brilliance of his oratory and the energy of his presence. He was a passionate Canadian whose distinguishing characteristics were his spirit of intellectual honesty and a commitment to a united Canada and a better world.
Joe Ghiz understood that our great Canadian identity was not a gift bestowed but a reward hard won. He knew that we could never stop caring for our country, that we could never stop revitalizing our country, that we could never stop defending our country. He understood that Canada was a goal, not a starting point. He believed that all Canadians had promises to keep.
When he died too young, Canadians of all regions and provinces, of all ethnic origins and backgrounds, grieved for the generous, engaging Prince Edward Islander who had turned on the lights for so many people. They came to Charlottetown, the city where the Fathers of Confederation negotiated the Terms of Union and conceived a great national dream. Joe Ghiz inherited their proud legacy. In that very special place, people honoured a great patriot who helped keep the dream alive. In that beautiful, gentle city, people wept because that very special patriot died far too young.
To his wife Rose Ellen, his son Robert and his daughter Joanne, I extend an expression of the deepest sympathy.
[Translation]
Hon. Marcel Prud'homme: Honourable senators, I would like to add a few words to what has already been said by the honourable senators who have preceded me.
I knew Premier Joseph A. Ghiz very well, as a great friend of Quebec and an associate of Mr. Bourassa. I never hesitate to mention the name of Mr. Bourassa with the greatest of respect.
Joe Ghiz understood what Canada was, something that even some of my friends here in the Senate find so difficult. It is extraordinary that the son of an immigrant - as he took pride in saying so often - had a better grasp than anyone else of the grandeur, the beauty, and the diversity of Canada. His words always reflected our differences and our determination to be Canadians while retaining our own identities. I can identify with Joe Ghiz. He had an absolute determination to defend this country, which is the envy of the entire world. It is not enough to just say this; one must think it, one must feel it. Joe Ghiz not only felt it, he had the words to express it.
What this country lacks at the present time is guides. I have trouble finding those guides at a time when we are witnessing the slow disintegration of Canada because of lack of understanding, particularly of what I call "my people," the French Canadian people. I have no hesitation in referring to this great people, the French Canadian people. This is an entity that exists, I repeat, that breathes, that sings, that writes, but that also remains fundamentally attached to Canada.
It is extraordinary that the person who has spoken best of these things is Mr. Ghiz. He gave his unconditional support to the Meech Lake Accord, which was so badly misunderstood by some of our good friends. It is extraordinary that this son of a Lebanese immigrant was the one to have expressed it the best, better than I ever could in either of the official languages of this country.
I am therefore adding my tribute to those who have spoken before. I offer his family our greatest sympathy, in the hope that there will be more and more guides such as he in Canada. We need people who have an understanding of what the word "Canada" can really mean to each of us Canadians.
[English]
The Late Thomas M. Bell, B.C.L.
Tributes
Hon. Erminie J. Cohen: Honourable senators, I rise today to pay tribute to the late Judge Thomas Miller Bell of Saint John, New Brunswick, who died November 12 after a lengthy and debilitating illness. His strength of character, courage and determination was clearly evident as he struggled valiantly with his affliction. It is fitting that we pay tribute to a man who devoted himself so completely to the service of Canada.Tom Bell was elected in 1953 as the Progressive Conservative member for the federal riding of Saint John-Albert and was re-elected seven times; in 1957, 1958, 1962, 1963, 1965, 1968 and 1972 - 21 years of public service, serving in the governments of four prime ministers; the Right Honourable Louis St. Laurent, John Diefenbaker, Lester Pearson and Pierre Trudeau. He followed in the footsteps of his grandfather, Thomas Bell, who was a member of Parliament from 1925 to 1935.
Tom was appointed Parliamentary Secretary to the Minister of Trade and Commerce and the Minister of Justice. He was Opposition House Leader and Party Whip. He was also president of the Young Progressive Conservatives from 1956 to 1958.
In 1974, he was appointed a provincial court judge and he presided over family, youth and traffic courts. His judicial career spanned 20 years. He had a deep and sincere commitment to help young people in trouble with the law and was actively involved in the development of policies within the framework of the Young Offenders Act.
Civility, courtesy and fairness were his trademarks in the House of Commons, the courtroom and society.
(2030)
Tom Bell had distinguished service in the Second World War serving in the Merchant Marine. He sailed in the North Atlantic, the Mediterranean, South Africa and the Far East. After the war, he took an active interest in the welfare of veterans, something that continued until it was curtailed by his illness a few years ago.
He was a long-time member of the No. 14 Branch Royal Canadian Legion, a member of the Carleton and York Club, a former chair of the 26th Battalion Overseas Association and Chair of the Board of New Brunswick and Prince Edward Island Division of the Canadian Corps of Commissionaires.
Tom Bell was a man of laughter. His wit, humour and enthusiasm endeared him to many people. He was a man any person would be proud to call friend. He was a politician's politician, a tough adversary in the House of Commons but, outside, a respected and entertaining friend.
He was pleased with my appointment to the Senate and, whenever he saw me, whether on the street or at a function, in his loud, robust and boisterous voice he would shout, "So how are things on the Hill? Are you giving them hell?"
Someone once said, "Everybody sees what you appear to be, but few see what you are." In Tom Bell we saw what he was - a man of contrasts who was equally at ease with people in power as he was with the working men and women of his constituency. He was true to those simple virtues of good business, good politics, hard work and common sense. He never sought publicity, believing his accomplishments spoke for themselves.
Saint John and the New Brunswick community in Canada have lost an outstanding citizen, a man who brought honour to his profession, a man committed to his church, his family and his country. He was a friend for all seasons. I cherish the memory of a 40-year friendship.
We extend heartfelt sympathy to his wife Patricia Blayney Bell, his three sons and their daughter.
Hon. Lowell Murray: Honourable senators, it has been a season of sad political loss. The late Tom Bell had been a friend of mine for more than 35 years. He was a pillar of the Progressive Conservative Party in Parliament and in New Brunswick. Among other things, he had served as Chief Opposition Whip and Opposition House Leader under Robert Stanfield. I want to acknowledge the debt my party owes to him for his exemplary service.
The constituency of Saint John has never been the preserve of any one political party, either in federal or provincial elections. Yet, as Senator Cohen has pointed out, Tom Bell was elected seven times from that constituency to Parliament. No other politician from Saint John, before or since, has matched that record of longevity. The secret of his success is explained quite simply by the high quality of the representation that he gave to his constituency, which drew respect and support across party lines there as it did in the House of Commons.
He was finally defeated in the 1974 general election. In that election the issue was the Conservative policy of wage and price controls and the opposition against it by the Trudeau government and the NDP. The victorious Liberal did not win many more votes than Liberal candidates had done in the previous two elections against Mr. Bell; however, the Conservatives lost several thousand votes to the NDP, and the split was sufficient to elect the Liberal candidate.
The year 1974 was also the year in which Mr. Stanfield refused to accept the nomination of Leonard Jones as Conservative candidate in Moncton because of Mr. Jones's notorious campaigns against bilingualism. Some of the local resentment against Mr. Stanfield's decision spilled over from Moncton into Saint John. I take some responsibility for exposing Tom Bell to that resentment because I asked him, and he agreed, to go to Moncton to campaign against Mr. Jones and in favour of the official Conservative candidate who, as I recall, lost his deposit.
After his defeat, he was appointed, as Senator Cohen has mentioned, as a judge of the family court where he spent 20 years. I was rather struck by the fact that much of the local media comment in Saint John on his death focused as much on the firmness, gentleness and wisdom that Tom Bell had brought to his judicial duties as on the highlights of his political career.
At the memorial service in Saint John on November 14, the Honourable Jean Charest led a large body of mourners, including many from the Canadian Legion, former colleagues of the bar and the bench and political allies and adversaries who were there to express their admiration and respect.
Tom Bell spent his entire life in the public service of Canada, first in wartime, then in Parliament and, finally, in the judiciary. It is a life greatly deserving of our recognition and gratitude.
Hon. John G. Bryden: Honourable senators, I wish to say a few words tonight in memory of Tom Bell who died on November 12 in Saint John. I did not know Tom Bell as well as others in this chamber knew him. Therefore, I am pleased that Senators Cohen and Murray have reviewed so wonderfully his political and public career.
It is interesting, however, to note that Mr. Bell, as a young 30-year old lawyer, was first elected in 1953. After serving the people of Saint John for over 20 years, he lost in 1974 to another young lawyer aged 31. I remember that campaign. In particular, I remember the civility with which the contest in Saint John-Lancaster was conducted by both the leading contenders. Commenting on the election results, Mr. Bell is quoted in the Telegraph Journal of July 9, 1974, as having stated:
I congratulate Mike Landers for putting on a tremendous campaign...
It was a fair campaign, although a quiet one, but the issues were put forward. It has been a great honour and pleasure to have represented this constituency. I did all I could for this constituency.
Few people in Saint John would disagree with that last statement, and many will recognize in the tone of his words toward his young successor the graciousness and humanity that marked his political career and, indeed, his life. Tom Bell continued to serve the people of Saint John for a further 20 years as Judge Bell of the provincial family, youth and traffic courts. Retired Court of Queen's Bench Judge Rodman Logan, who had been his life-long friend, classmate and 20-year law partner, when asked to comment on his friend's death, is quoted in the Telegraph Journal on November 11 as follows:
He was a very unassuming person. He always said, "Do what is proper and people will acknowledge it."
Honourable senators, on behalf of the senators on this side, and as a fellow New Brunswicker, I would like to acknowledge that, with the passing of Judge Bell, we have lost a person who served his country, his province and his community with honour, dignity and humility. He will be missed.
To Mrs. Bell and the members of the Bell family, we extend our sympathy and condolences.
SENATORS' STATEMENTS
Prince Edward Island
Congratulations to Progressive Conservatives on Election
Hon. Gerry St. Germain: Honourable senators, I would be remiss if I did not congratulate a former colleague of mine in the other place and a colleague of many of us in this place, namely, Patrick Binns who, on November 18, 1996, led the Progressive Conservative Party in the province of Prince Edward Island to a smashing victory. The results were as follows: 18 PCs, eight Liberals and one member from the NDP.(2040)
I think the best way one can describe Pat is as a quiet, true gentleman who never speaks loudly but delivers very effectively; a hard worker, and a dedicated Prince Edward Islander.
This was democracy in action, honourable senators, and when any of us in this place feels that we have arrived and we are virtually invincible, I believe that certain happenings in politics over the last decade would indicate that none of us is invincible.
I should like to congratulate the people of P.E.I. with whom I worked very closely as the National President of the Conservative Party of Canada. The Islanders spoke on November 18, and I congratulate them for having made such a wise choice.
Completion of Confederation Bridge
Hon. M. Lorne Bonnell: Honourable senators, I wish to welcome all of you to Prince Edward Island, because, last week, not only did Pat Binns win the election, but Canada "joined" Prince Edward Island. The fixed link has been completed. For the first time in our history, the descendants of Canadians who sat down with our forefathers in Charlottetown in 1864 have finally joined with us. You will share in some of our culture, our heritage, our Scottish wit, our humour, and I hope you will eat a lot of our potatoes.The official opening will be held next summer. I think the leadership of the Senate should make arrangements so that a goodly number of senators from both sides travel that 13 kilometres across to our beautiful little province where the country was put together, the birthplace of our nation, and that when we arrive we meet with the new premier, Patrick Binns.
For those of you who do not know, Pat Binns is a Saskatchewan boy. He came from the prairies and took over the leadership of the party. Those of you who come from Saskatchewan should be proud of Pat Binns.
Senator Berntson: Indeed we are.
Senator Bonnell: I would suggest that you cross the fixed link next summer and visit with him.
The Hon. the Speaker: Honourable senators, in the spirit of goodwill in the Senate, as always, but particularly this evening, and considering the importance of Senator Bonnell's comments, I did not interrupt him, but I would not want to establish a precedent. I would remind honourable senators that, under Senators' Statements, senators are allowed to speak only once.
Iran
Disclosure of Expenses-Paid Trip
Hon. Nicholas W. Taylor: I would not want to interfere with an honourable senator's speech about the new premier of P.E.I. A Saskatchewan man surrounded by that much water must be in heaven.Honourable senators, some 20 to 25 years ago, as a geologist and engineer, I did some business in Iran. I was not too surprised, therefore, to receive an invitation from that government to travel there last week at their expense to try to re-establish business ties. Last week, I met with the officials of the National Iranian Oil Company, the Geological Survey of Iran, and Iran's Department of Mining. I also spoke with representatives of the Canada-Iran Chamber of Commerce.
It was most surprising to see one of my neighbouring farmers and part owner of an alfalfa pellet plant there, along with other Albertans, scaring up business for the alfalfa I grow and sell to him.
ROUTINE PROCEEDINGS
Post-Secondary Education
Report of Social Affairs, Science and Technology Committee on Budget for Subcommittee Presented
Hon. Mabel M. DeWare: Honourable senators, I have the honour to present the eighth report of the Standing Senate Committee on Social Affairs, Science and Technology, which requests that the subcommittee on post-secondary education be empowered to incur special expenses pursuant to the procedural guidelines for the financial operation of Senate committees. I ask that the report be printed as an appendix to the Journals of the Senate of this day.The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
(For text of report, see today's Journals of the Senate.)
The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?
On motion of Senator DeWare, report placed on the Orders of the Day for consideration at the next sitting of the Senate.
The Estimates, 1996-97
Supplementary Estimates (A)-Report of National Finance Committee Presented and Printed as Appendix
Hon. David Tkachuk: Honourable senators, I have the honour to present the sixth report of the Standing Senate Committee on National Finance concerning the examination of Supplementary Estimates (A) laid before Parliament for the fiscal year ending March 31, 1997. I ask that the report be printed as an appendix to the Journals of the Senate of this day and that it form part of the permanent record of this house.The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
(For text of report, see today's Journals of the Senate.)
The Hon. the Speaker: When shall this report be taken into consideration?
On motion of Senator Tkachuk, report placed on the Orders of the Day for consideration at the next sitting of the Senate.
Asia-Pacific Region
Report of Foreign Affairs Committee Requesting Authorization to Travel for Purpose of Pursuing Study Presented and Printed as Appendix
Hon. John B. Stewart: Honourable senators, I have the honour to present the fourth report of the Standing Senate Committee on Foreign Affairs. I ask that the report be printed as an appendix to the Journals of the Senate of this day.The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
(For text of report, see today's Journals of the Senate.)
The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?
On motion of Senator Stewart, report placed on the Orders of the Day for consideration at the next sitting of the Senate.
Code of Conduct
Special Joint Committee-Message from Commons Respecting Extension of Final Reporting Date
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons requesting the Senate to unite with that House in extending the reporting date of the Special Joint Committee on a Code of Conduct to Friday, December 13, 1996.Notice of Motion
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Tuesday, November 26, 1996, I will move:That the Senate do unite with the House of Commons in extending the reporting date of the Special Joint Committee on a Code of Conduct to Friday, December 13, 1996;
That, notwithstanding usual practices, if the Senate is not sitting when the final report of the Committee is completed, the Committee shall deposit its report with the Clerk of the Senate, and said report shall thereupon be deemed to have been presented to the Senate; and
That a Message be sent to the House of Commons to acquaint that House accordingly.
(2050)
Divorce Act
Family Orders and Agreements Enforcement Assistance Act
Garnishment, Attachment and Pension Diversion Act
Canada Shipping Act
Bill to Amend-First Reading
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-41, to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On the motion of Senator Graham, bill placed on the Orders of the Day for second reading on Wednesday, November 27, 1996.
Appropriation Bill No. 3, 1996-97
First Reading
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-68, granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 1997.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On motion of Senator Gigantès, bill placed on the Orders of the Day for second reading on Wednesday next, November 27, 1996.
First Nations Government Bill
First Reading
Hon. David Tkachuk: Honourable senators I have the honour to present Bill S-12, providing for self-government of the First Nations of Canada.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On motion of Senator Tkachuk, bill placed on the Orders of the Day for second reading on Wednesday next, November 27, 1996.
A Bill to Change the Names of Certain Electoral Districts
First Reading
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-347, to change the names of certain electoral districts.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On motion of Senator Bolduc, bill placed on the Orders of the Day for second reading Wednesday next, November 27, 1996.
Legal and Constitutional Affairs
Notice of Motion to Authorize Committee to Meet During Sitting of the Senate
Hon. Sharon Carstairs: Honourable senators, I give notice that on Tuesday next, November 26, 1996, I will move:That the Standing Senate Committee on Legal and Constitutional Affairs have power to sit at 3:15 p.m. on Wednesday, November 27, 1996, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
Foreign Affairs
Committee Authorized to Meet During Sitting of the Senate
Hon. John B. Stewart: Honourable senators, I have a notice of motion but I would prefer, if permitted, to move the motion now. These are the terms of the motion:With leave of the Senate and notwithstanding rule 58(1)(a), I move that the Standing Senate Committee on Foreign Affairs have the power to sit at 4:00 p.m. on Tuesday, November 26, 1996, even though the Senate may then be sitting and that rule 95(4) be suspended in relation thereto.
The Hon. the Speaker: Is leave granted?
Hon. Senators: Agreed.
Motion agreed to.
[Translation]
Reflections on the Senate
Notice of Inquiry
Hon. Maurice Riel: Honourable senators, I give notice that on Thursday next, November 28, 1996, I will bring to the attention of the Senate my 23 years of experience as a senator.[English]
The Hon. the Speaker: Senator Riel, would you please forward your Notice of Inquiry in writing. It is a requirement for purposes of documentation.
Health Care in Canada
Notice of Inquiry
Hon. Wilbert J. Keon: Honourable senators, pursuant to rule 57(2), I give notice that on Wednesday next, November 27, 1996, I intend to bring to the attention of the Senate, issues concerning the Canada Health Act and other matters related to health care in Canada.QUESTION PERIOD
Absence of Government Leader
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, as is evident, Senator Fairbairn is unavoidably absent this evening. She is attending a function in Toronto in connection with her responsibilities as Minister with special responsibility for Literacy, but she will be here in her place tomorrow afternoon. In the meantime, I will be happy to take any questions as notice.Delayed Answers To Oral Questions
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I have a response to a question raised in the Senate on September 25, 1996, by the Honourable Senator Oliver regarding Canadian Race Relations Foundation. I have a response to a question raised in the Senate on October 31, 1996, by the Honourable Senator Kinsella regarding the Order in Council concerning Madam Justice Arbour.Amendments to Judges Act
Expiry of Order in Council Concerning Madam Justice Arbour-Government Position
(Response to question raised by Hon. Noël A. Kinsella on October 31, 1996)Order in Council P.C. 1996-1543, dated October 1, 1996, approved the granting of a leave of absence to Madam Justice Louise Arbour from October 1, 1996 to October 31, 1996, in order for her to perform the duties of Prosecutor of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia and the International Tribunal for Rwanda.
Order in Council P.C. 1996-1675, dated November 1, 1996, approved the granting of a leave of absence to Madam Justice Arbour from November 1, 1996 to November 30, 1996, for the same purpose.
Canadian Race Relations Foundation
Particulars on Establishment-Request for Update
(Response to question raised by Hon. Donald H. Oliver on September 25, 1996)The Secretary of State (Multiculturalism) (Status of Women) announced, in Toronto, on October 29, 1996, the establishment of the Canadian Race Relations Foundation.
Answers to Order Paper Questions Tabled
Health Canada-rBST Hormone Usage
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 29 on the Order Paper - by Senator Spivak.Alternative Fuel Vehicles-Department of Health
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answers to Questions No. 16 and 51 on the Order Paper - by Senator Kenny.Business of the Senate
Hon. M. Lorne Bonnell: Honourable senators, I just want to say that I am sorry if I offended the rules of this house. You know I would never do that intentionally. If I spoke twice when I should have spoken only once, I was taking leadership from the former Leader of the Government in the Senate, Lowell Murray. Because he had spoken twice, I figured I could too. I am a Maritimer as well.Your honour, I apologize and I would like to give honourable mention to Senator Murray.
ORDERS OF THE DAY
Canada-Israel Free Trade Agreement Implementation Bill
Order Stands
Hon. B. Alasdair Graham (Deputy Leader of the Government: Honourable senators, this item should stand this evening. Senator Stollery is the sponsor of the bill. He is unavoidably absent but will be in his place tomorrow afternoon and will speak to this matter at that time.Newfoundland
Changes to School System-Amendment to Term 17 of Constitution-Report of Committee-Motion in Amendment-Debate Continued
On the Order:Resuming the debate on the motion of the Honourable Senator Rompkey, P.C., seconded by the Honourable Senator De Bané, P.C., for the adoption of the Thirteenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (amendment to the Constitution of Canada, Term 17 of the Terms of Union of Newfoundland with Canada), deposited with the Clerk of the Senate on July 17, 1996;
And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the Report be not now adopted but that it be amended by deleting the words "without amendment, but with a dissenting opinion" and substituting therefor the following:
with the following amendment:
Delete the words in paragraph (b) of Term 17 that precede subparagraph (i) and substitute therefor the words: "where numbers warrant,";
And on the subamendment of the Honourable Senator Cogger, seconded by the Honourable Senator Bolduc, that the motion in amendment be amended by substituting for the words "with the following amendment:" the words "with the following amendments: (a)" and by removing the period at the end thereof and adding the following words:
; and
(b) Delete the words "to direct" in paragraph (c) of Term 17 and substitute therefor the words "to determine and to direct".
Hon. Jean-Maurice Simard: Honourable senators, I begin by offering my congratulations to Senator Fairbairn for ensuring that the resolution of this matter will occur in a final vote in this chamber on Wednesday night.
It is crucial that the Senate's role as a guardian of Canadian constitutional values be fully respected. The debate on Term 17 will allow honourable senators to speak decisively. We must not allow ourselves to be simply bystanders.
I commend honourable senators for their contributions to this debate. The debate has been notable for its focus on the issue in principle and for an absence of partisan posturing. Quite rightly, honourable senators seem to agree that the amendment to the Newfoundland Terms of Union is a matter of constitutional value, not party politics.
I should like to commend Senator Kirby for the depth and detail of his speech in this chamber. In my own study of this issue, I was assisted by the identification of the five areas of agreement that have been presented by those in favour of the resolution and by Senator Kirby's thoughtful reply to each of those five arguments. Honourable senators will see that I have taken the liberty of adopting Senator Kirby's framework in coming to my own conclusion.
I would also like to thank Senator Pearson for the concern she raised on behalf of Newfoundland and Labrador children and, in particular, those children who, through religious affiliation, linguistic or ethnic heritage, disability or poverty, must be counted as minorities.
Obviously, my congratulations and thanks go to Senator Doody. He has been known for the last 25 years as a great parliamentarian. He sat for eight years in the House of Assembly of Newfoundland and Labrador. He has been serving in the Senate since 1979, a total of 25 years of parliamentary life. Senator Doody took on the task to support and shed light on this debate. His amendment to the proposed legislation, while saving Term 17 from evident death, also leads to the continuation of constitutional protection of existing rights while allowing a much needed solution to the school system problem. It wish to especially congratulate Senator Doody.
Finally, I wish to congratulate Premier Tobin for introducing and recently passing legislation that mandates a francophone school board for Newfoundland and Labrador.
If I were to summarize the five agreements that Senator Kirby identified in his speech, I would say that those arguments correspond to five questions: One, is the Newfoundland and Labrador school system in need of reform? Two, can that reform only be achieved by constitutional amendment? Three, should the decision of the House of Assembly of Newfoundland and Labrador be binding on this chamber, since education is a matter of provincial jurisdiction? Four, should the result of a Newfoundland and Labrador referendum be binding on the Senate? Five, may minority rights be diminished so long as the holders of those rights had a fair opportunity to be heard by the decision makers?
[Translation]
In my opinion, each member of this chamber must ask and answer each of these questions to his or her own satisfaction before deciding how to vote on the motion before us. However, it seems to me that there is another question that must be asked and answered before all of the others. That question is: What will be the effect of this change to Term 17? In other words, what is at stake here?
Having considered the matter with care, my answer is that minority rights are at stake here. The effect of Term 17 will be to diminish the constitutional protection now enjoyed by the Newfoundland and Labrador denominations with respect to the education of their children.
[English]
Senator Pearson told us that what was at stake was the right of each Newfoundland and Labrador child to an equitable education appropriate to his or her special needs. I have no doubt that this principle must be an urgent concern of the Newfoundland and Labrador government.
Honourable senators were told that the government of Newfoundland and Labrador believes that, without the proposed Term 17, that province cannot achieve a greater educational equity between Christian and non-Christian children, and between francophone and anglophone children.
Honourable senators were also told that the provincial government believes that the present Term 17 precludes an educational system that respects and protects the speech and life of aboriginal children of Newfoundland and Labrador. Similarly, it has been argued that the Newfoundland and Labrador government also believes that the present Term 17 limits the ability of the educational system to level the playing field for disabled children and for children living in poverty.
Clearly, the Government of Newfoundland and Labrador is entitled to its own conclusions. If new legislation were being proposed, which was expected to make the school system more equitable, I would commend it and would accept its assessment of this situation. However, what we have before us is a constitutional amendment that has been justified on the grounds that certain groups of children are disadvantaged because of the rights of other groups of children to be educated in accordance with their religious beliefs.
[Translation]
I do not believe that it has been demonstrated to this chamber, and certainly not to my own satisfaction, that the Constitution's guarantee of denominational education to the enumerated denominations necessarily precludes francophone education, aboriginal education, and/or education especially for disabled or disadvantaged children. Moreover, I do not believe that the solution to the problem of children of non-recognized faiths is to remove the rights of the children of recognized faiths where their parents still value those rights. Otherwise, everyone ends up at "zero" and special needs of children belonging to certain denominational groups, in fact, are ignored.
[English]
Like Senator Kirby, I believe that one must address the argument that minority rights are not at stake here. The argument, as I understand it, is that the recognised denominations, in total, represent a majority of the population of Newfoundland and Labrador. Honourable senators have heard it argued that the total number of Roman Catholics in the province is an extremely large minority; so large that "minority" does not seem an apt description.
What has become equally clear in this dispute, and in the testimony that was heard by the committee in St. John's, is that not all of the denominations view education in the same way. That being the case, there was no unified "majority" to speak of. More important, if most of the individual denominations are willing to relinquish constitutional protections, the unwilling denominations are a double minority, each a minority in the overall provincial population and a minority amongst recognized denominations.
As for the argument that Newfoundland and Labrador's Roman Catholics, or the Roman Catholics and Pentecostals combined, represent a significant portion of the population, the answer must be that, whatever the proportion, less than 50 per cent, obviously, is a minority. Amounting to less than 50 per cent means that group rights, unless protected from the will of the majority, are only privileges, which may be given, taken, enhanced or diminished on the whim of the majority or the majority's elected representatives.
[Translation]
I would now like to speak of another minority that, rightly or wrongly, has been brought into this debate. I am speaking of Newfoundland and Labrador's francophone parents and their children. I must tell you quite frankly that I believe that minority French language education rights are only a side issue in this debate. Nonetheless, I do believe that francophone education rights are crucial to the question of how the Newfoundland and Labrador school system should be redesigned. Clearly, the patience of the province's francophone parents has been sorely tried by successive provincial administrations which, since 1982, have refused to provide for management and control by francophone parents of their schools as guaranteed by the Charter. And, to repeat what I said earlier, I heartily congratulate Premier Tobin for including a francophone school board in the amendments to the Schools Act that were passed in July of this year.
I was a member of the New Brunswick Legislature when that province took important steps forward in francophone education. We recognized that neither linguistic community was properly served by bilingual boards and schools, so we created homogeneous English and French language school systems in the 1970s. Our understanding of the educational needs of our linguistic communities was confirmed by the nature of the minority language education rights that were guaranteed to all Canadians by the 1982 Charter. I agree that the Newfoundland and Labrador francophone community would not survive otherwise.
However, I said that I believe that francophone education in Newfoundland and Labrador is a side issue to the question of whether Term 17 must be amended in accordance with the resolution before us. If the guarantee of separate denominational schools and boards is allowed to stand, will a single francophone board be jeopardized? For those who wonder whether individual denominations within a single francophone board might demand their own separate boards, I must answer that I think it unlikely. I have faith that the francophone community, well aware of its minority position within the Newfoundland and Labrador population, will not allow itself to be divided so as to undermine the best interests of their children. I note that the Fédération des parents francophones de Terre-Neuve et du Labrador made both written and oral submissions to our committee in St. John's, that it was clearly stated that their concern was French language education, and that they took no position on the issue of denominational education. I would suggest that non-Catholic francophone parents already have demonstrated their devotion to francophone education, as they have sent their children to French language schools operating under the care of three of Newfoundland and Labrador's Catholic boards.
[English]
Given that minority rights indeed are at stake, and since it has not been proven that the existing right to denominational education will frustrate the goals of an equitable education for other groups of Newfoundland and Labrador children meriting special treatment, I will return to the role of the Senate in this debate and to the issues and questions raised by my colleague, Senator Kirby. I will also briefly address the amendment to the resolution proposed by Senator Doody.
We, as senators, have been charged with protecting the rights and interests of the regions and the Canadians who inhabit those regions. Obviously, a national majority cannot be expected, in my opinion, to understand totally and appreciate the particular needs of a minority. Thus, the Fathers of Confederation gave the Senate the task of ensuring that parliamentary initiatives and actions recognize and respect the needs of these Canadian citizens whose voices cannot be expected to prevail against the majority. In this instance, therefore, we must be satisfied that the proposed amendment to Term 17 and the arguments that have been made in its favour do not trample on the spirit of the Constitution's protection of minorities.
Honourable senators, I recognize that I have gone beyond my 15 minutes.
[Translation]
The Hon. the Speaker: I am sorry to interrupt, honourable senators. Were you seeking leave to continue?
Senator Simard: If I may, honourable senators.
The Hon. the Speaker: Is leave granted, honourable senators?
Some Hon. Senators: Agreed.
[English]
Senator Simard: Like Senator Kirby, I am willing to concede that the Newfoundland and Labrador school system could be improved, but it has not been shown that denominational education rights are a necessary casualty. Moreover, since the principal argument seems to be that the system would be more efficient if denominational rights were diminished, I must ask my fellow senators whether we can accept the elevation of economic efficiency to a constitutional status superior to certain existing and fundamental minority rights. Like Senator Kirby, I find it difficult to accept the argument that minority rights may be damaged so long as the overall benefit to society offsets such damage, and I am not satisfied that it has been shown that these minorities rights must be damaged so that Newfoundland and Labrador children as a whole may benefit from an improved school system.
I must also ask my fellow senators whether it is right to argue that the Parliament of Canada must agree to this proposal because the House of Assembly in Newfoundland and Labrador has approved it, deferring to the judgment of those provincial politicians because education, generally, is a matter of provincial jurisdiction. Surely, the point of the original Term 17 was that certain aspects of denominational education were protected from unilateral provincial action. If Parliament is now obliged to consent to the proposed Term 17 because the provincial legislature so wishes, then the safeguard deliberately designed by our Fathers of Confederation is meaningless.
[Translation]
I have heard other arguments why this chamber should feel itself obligated to approve the resolution as proposed. Some have pointed to the fact that the amendment was approved by Newfoundland and Labrador voters in a referendum. I do not dispute that the voices of the citizens of Newfoundland and Labrador are important; still, it seems to me that to allow an apparent majority - amounting to 29 per cent of the total voting population - to do away with a minority right makes that right no right at all and renders meaningless the inclusion of Term 17 in the 1949 Terms of Union.
If it had been demonstrated that a majority within each of the protected denominational minorities had accepted the amendment, then I might feel more favourably towards it. In the absence of that proof, I believe that minority rights can be diminished only with the consent of those rights' holders.
(2120)
To make those rights meaningful, I believe that the onus of proof should be on those who wish to diminish the rights. It cannot be fair to demand that the members of that minority prove that they do not consent. Similarly, in the absence of conclusive proof to the contrary, we must assume that the church leaders speak on behalf of the parents who are members of the Roman Catholic Church, the Pentecostal Assemblies, and the Seventh-day Adventist Church.
Finally, I must ask my fellow senators whether we can accept the proposition that we must approve the resolution because of the argument that the affected minorities were given a fair opportunity to be heard before the new Term 17 was approved by the Newfoundland and Labrador House of Assembly. If this is so, then the opportunity to oppose the loss of one's minority rights amounts to little when, at the end of the day, the majority decides that those rights must go.
[English]
Clearly, I cannot in good conscience support the resolution that has been passed by the House of Assembly of Newfoundland and Labrador and by members of the House of Commons. As a protector of minority rights, I must reject it. However, with the amendment proposed by Senator Doody, I believe that this chamber can approve the resolution while observing our obligation to safeguard the spirit of our Constitution.
I agree with Senator Doody, and with others who have spoken in favour of his amendment, that the paragraph (b) "subject to" clause can only mean that the right to the establishment of denominational schools will be subject to the rules set by the provincial legislature. I agree with Senator Kirby that this clause will allow the enactment of provincial laws making the establishment or continuation of separate denominational schools virtually impossible. It seems to me that the fact that the proposed paragraph (a) schools are called "denominational schools" is only a matter of labelling. Clearly, the paragraph (a) scheme is something less than the constitutional guarantee that now exists. If we accept the new paragraph (b), then so long as the provincial rules are uniformly applicable, the denominational minority will have no guarantee which they can take to the courts for enforcement.
This chamber, and our committee in St. John's, heard it argued that provincial politicians, and not the courts, should decide when separate denominational schools are appropriate. I cannot accept that. Clearly, this was not what the Fathers of Confederation intended. However, I can accept the suggestion that separate denominational schools should be guaranteed where numbers warrant. Surely, it is right and proper to look to the courts for the vindication of rights that the legislatures fail to respect.
I do not believe that "where numbers warrant" is a meaningless standard that requires a court decision in each instance. It is a common sense standard that provincial legislatures must look to in designing minority language education schemes, and that is wholly appropriate to denominational rights as well. Moreover, based on the testimony of Newfoundland and Labrador's education minister, Mr. Grimes, the present government meant "where numbers warrant" to be implicit in the new Term 17. That being the case, it could hardly be high-handed to ensure that all future politicians understand this intention by making explicit what our committee was told was meant to be implicit.
There are those who argue that we must assume that all future Newfoundland and Labrador politicians can be trusted to exercise their discretion in favour of denominational minorities that are no longer constitutionally protected. I would ask them whether they would take the same leap of faith were we discussing an amendment to the Charter that read, "subject to uniformly applicable federal or provincial legislation, everyone has the right to freedom of conscience and religion." I would suggest that the answer is the same in both cases: In general, we trust our elected representatives to respect our values but we choose nonetheless to guarantee the most important of our values in the unlikely event that this trust is misplaced. This is the spirit cof our 1982 Charter: Citizens may turn to the courts for enforcement when our legislatures, intentionally or unintentionally, violate the values and principles that are of fundamental importance to us as Canadians.
[Translation]
As I have said, I cannot support the resolution before this house, but I would support that resolution if it were amended as proposed by Senator Doody. Whether this chamber rejects the resolution or adopts Senator Doody's amendment to the resolution, I think it very important that the members of the other place carefully consider whether they ought to proceed with a second resolution identical to the one adopted there in June of this year. It is clear that the House of Commons may disregard the Senate's objections to a constitutional amendment, and may proceed with the amendment in any event; whether it should do so is the crucial question. I would argue that the Senate's exercise of its six-month suspensive veto, and its decision to vote down the resolution presented to it, should serve as an indication to the House of Commons that less haste and greater caution is called for.
Therefore, I invite the government and the members of the other place to exercise caution in proceeding with a second resolution when so many in the Senate have voiced serious concerns clearly based on principle rather than partisanship.
I would ask that the members of the other place be wary of the precedent that may be set for future constitutional amendments diminishing minority rights. I would suggest that the House of Commons keep in mind that a political precedent may be set, or perceived, even if future amendments may be legally distinguishable. I agree with Senator Kirby that the proposed amendment to Term 17 sets an "incredibly dangerous precedent." In the present circumstances, it would amount to a taking away of minority rights, without the consent of the minority or minorities, by a simple vote of the majority's elected representatives. Future generations of minority right holders must not be imperilled; it cannot be sufficient that present-day politicians undertake to respect privileges that have no constitutional protection.
Finally, this house has been told that much of the needed school reform in Newfoundland and Labrador already has been achieved without constitutional amendment. Not everyone is agreed that the remaining 10 per cent of the 1992 Williams Royal Commission report recommendations can be achieved without constitutional amendment. However, where the price of efficiency is a minority right protected by the Fathers of Confederation and clearly held by those minorities, surely additional time would be appropriate for the resolution of this apparent conflict between a "modernized" school system and fundamental denominational rights.
[English]
I have great faith in the reasonableness of all Newfoundlanders and Labradorians and in their willingness to seek common ground. Surely, the minority rights holders understand as well as anyone else that provincial finances are limited. Their opposition to the amendment must be because the amendment does, in fact, tread on fundamental, personally held values. However, I do not propose that the resolution be discarded altogether. Rather, I suggest that, with Senator Doody's proposed amendment and Senator Cogger's subamendment, we adopt the resolution to amend Term 17 of the Newfoundland Terms of Union.
Hon. Philippe Deane Gigantès: Honourable senators, two questions are paramount in this issue of Term 17: Is it constitutional to change Term 17? Are the changes proposed by the Government of Newfoundland proper? Under the latter question I will discuss the protection of minorities.
There is no doubt that our Constitution has in it a mechanism for amending provisions of the Constitution pertaining to one province alone, provided that the Parliament of that province and the federal Parliament are in agreement. That is all there is to it from the constitutional and legal point of view. There is no doubt that the Parliament of Newfoundland has the right to ask that the Constitution be changed, just as the Parliament of Canada has the right to decide whether or not it agrees with that change.The House of Commons has agreed. We are nearly at the end of our suspensive veto. If we reject this amendment on Wednesday, it will pass on December 2 in any event.
Senator Murray: No, no.
Senator Simard: No. It must pass judgment in the House of Commons.
Senator Murray: My friend will find that the government will need to reintroduce the recommendation.
Senator Gigantès: All right. However, it will pass immediately.
Is the amendment itself just? Is it unjust? Is it breaking faith? There is no doubt that religious teaching and observances will continue in the schools of Newfoundland; that in certain cases, if school boards agree, there will be unidenominational schools. The observance of the various religious denominations will continue. That which will not continue is the secular power of those denominations over education; rights pertaining to aspects of the budget that are not decided by the people but by the bureaucracies of the religious denominations. That is what is being attacked, and those religious denominations are defending themselves by complaining that their religious rights are affected. Their religious rights are not affected. Their intrusion into the secular aspect of education is under attack, and will be diminished when this amendment passes.
The separation of church and state has been one of the driving forces of democracy around the world. That is because, when churches have had secular power, they have generally abused it. It is also because churches have collaborated in history with the secular power when they themselves did not hold it. Democracy, therefore, is almost antinomical to secular power for the churches. It is not for frivolous reasons that various democratic countries insist on the separation of church and state.
Here we have a system in which Christian children must be segregated in school buses; in which a Seventh-day Adventist child and a Church of England child cannot ride in the same school bus. The denominations want to have and administer their own school bus fleets.
During meetings of the committee before which representatives of the denominations appeared, I asked why they wanted to retain those powers. Every one of them said it was because they wanted the Christian ethic to be taught to their children. I asked them to define the Christian ethic; to tell me on what it was based. They all said that it was based on the 10 commandments and the teachings of the New Testament. We are speaking of the same Christian ethic. Will a Seventh-day Adventist child and a Baptist child in the same bus affect the teaching of this Christian ethic? That seems far-fetched, bizarre and truly out of step with the times.
We are a multicultural and democratic country. We do not approve of segregation and discrimination, yet there are people in some of those denominations in Newfoundland who want the segregation to go beyond the separate teachings of their churches in the schools and to pertain to other of the children's activities. I believe that this is not something we can support.
I do not dispute the right of my colleagues to disagree and to vote against this resolution, which I support. This is an issue on which others may have a different opinion. However, I do not accept that the demands of the denominations in Newfoundland are democratic demands. I see them as the demands of the establishment of each denomination, not of the members.
Why do I say that? I do not even consider the referendum. I consider the unanimous vote in the House of Assembly in Newfoundland. There are Newfoundland legislators who are Seventh-day Adventist, Catholic, Anglican and Baptist, and every single one of them voted in favour of these changes. That is very significant. It is also proof that those people believe that the ordinary citizen in in favour of this amendment.
Politicians do not like to commit political suicide. If only one party were voting for the changes to Term 17 proposed by the Newfoundland government, I would assume that they believed a certain segment of the electorate would back them. However, every single member of the assembly of Newfoundland voted in favour of these changes. Would they have done so without asking themselves whether that might cost them their seats? In a democracy, you must ask yourself whether it will cost you your seat. It may be more delicate to ask: "By supporting these amendments proposed by the Newfoundland government, am I doing the will of the people?" In the House of Assembly, every single member voted for the amendment.
Who is opposed to it? It is the establishment of the denominations. The fact that the politicians voted for it is a sign that, in their estimation - to which we must give way in a democracy - the public is for this change.
(2140)
I have great respect for elected politicians. It is an awful job, and it is a great service they perform for the country. Without them, we could not have democracies. They are much better and much more intelligent than columnists and some others might think.
We have here a unanimous collection of politicians in Newfoundland who have approved, by their vote, a change in the Constitution, a change which will not diminish the right of denominations to teach their children or the right to have observances in the schools. It will only diminish some of the secular power of the religious bureaucracies and their other followers, namely, the bus drivers, accountants and so on. In other words, they are protecting their jobs - this is a form of job action. The actual teaching of their particular view of the Christian faith will continue.
To oppose this measure is to support a segregationist view of what our society is in the 20th century, on the eve of the 21st century, a view that somehow children will be Christian children, taught the same ethic but infected morally if they ride in the same bus, if they are in the same building or if they play on the same playground.
Of course, they object. The bishops object. The priests object. The school bus drivers object. Everyone else who has a job interest in the current system objects. Let us not interpret this as an attack on religious practice in the schools of Newfoundland, for it is not. It is an attack on the secular intrusion by denominations in the running of a country and a province.
I will not be as eloquent as Senator Simard; instead I beg you on my knees and ask that you do this. I am simply saying that what is being asked is democratic. It is being asked in a democratic way by the unanimous decision of the politicians elected by the people of Newfoundland, the politicians whose job it is to represent the people. In a democracy, they are the ones who represent the people, not the school bus drivers or the bishops who express their own personal interests. They do not express legally and constitutionally the views and wishes of the people of Newfoundland.
Honourable senators, please support the amendment to Term 17, without supporting the amendments and subamendments proposed by my honourable colleagues opposite in all good faith. I am sure they have put them forward because they think they are doing the right thing. In my opinion, we have no democratic choice other than to vote for the changes the Government of Newfoundland and its assembly in its majority demands.
Hon. Marcel Prud'homme: Honourable senators, I should like to ask a question of the honourable senator.
I am astonished by the speech I just heard. I will comment on it later in my speech.
[Translation]
Am I to understand that you disagree with the very recent judgment by a vote of five justices of the Supreme Court, two of whom were in favour against two who were opposed on the school issue in Ontario and the teaching rights of Catholic schools in Ontario? I read the judgment, which came out last week. I read it in Ottawa. I read all of it.
Before we reach a decision, after hearing Senator Kirby, who spoke eloquently, I would hope that -
[English]
Out of intellectual curiosity, honourable senators, please ask your staff tomorrow to get you a brief on the latest judgment of the Supreme Court of Canada concerning constitutional rights in Ontario.
[Translation]
So, am I to understand that you disagree with this judgment, which is very similar to what could happen in Newfoundland? What is the point of a Constitution if not to protect rights? When you tell me that there was unanimous consent in the legislature, I put this question to you.
[English]
I was there. I remember once that there was almost a unanimous decision of the House of Commons to apply the War Measures Act. Does that mean because there was unanimous consent it was the right thing to do?
I look at some of the honourable senator's neighbours who were quite active on that occasion. Contrary to what we did then, we thought we were right. The honourable senator talked about separation of state and church but I am going back to the preliminaries. He spoke about the bus question. It seems that he is right; but that has been taken care of now without amendments to the Constitution. The separation of state and church may occur in some ideal or golden country, but that is not what is written in our Constitution.
I conclude by asking my question again.
[Translation]
What is a Constitution if it does not serve to protect A, B or C, in exchange for a certain agreement? If you support the Confederation, the Constitution, not the National Assembly, promises you will keep your school system. This is what is happening at the moment in Ontario. Under the Constitution, the justices in their wisdom decided that the school system will remain untouched. This may not be the best approach, as they mentioned.
[English]
I ask honourable senators to read that judgment. It may not be the best, but it is a fact of life. That is what Canada is all about - a series of protections for this one or that one. Mr. Lincoln once said that rights are rights are rights. What good are rights granted by a Constitution if they disturb or annoy people? We are ready to pass a bill. I am pleased with the Senate's participation in this matter. At least we have done our duty, something which the House of Commons has refused to do.
[Translation]
Quickly now, are you in disagreement with this Supreme Court judgment? What is a Constitution? I will limit myself to these two subjects. I shall be very pleased to finish my speech on this matter.
Senator Gigantes: Honourable senators, we have a Constitution. It has an amending formula with several components to it. One of those is section 43, which allows a constitutional amendment affecting a single province, provided the Canadian Parliament and the Parliament of that province are in agreement.
Any constitution can be changed. All existing constitutions have been changed. They are not unchangeable. The country has a Constitution that states that the elected members are the ones to decide on constitutional amendments, no one else. That is what the Constitution says.
Now, to take the Supreme Court judgment. It is true that the Constitution of Ontario in this area is as you have described it, and as the Supreme Court has described it.
If the Parliament of Ontario wanted to make a change, and asked the federal Parliament to accept that change, and the two Parliaments accepted it, the Constitution would be changed; and the Supreme Court, addressing what is going on in Ontario, would be forced to consider the Constitution as changed. In the case of Newfoundland, it is the Newfoundland House of Assembly which has asked for the change to the Constitution. The federal Parliament will pass it, and the Constitution, as far as the denominational schools in Newfoundland are concerned, will be changed slightly. That will be completely legal and completely constitutional.
The Supreme Court was right to decide thus, in the current state of the Constitution. An amendment of section 43 of the Constitution would amend some Ontario statutes.
Senator Prud'homme: Honourable Senators, citizens in Ontario were the first to go to the Supreme Court. And the Supreme Court said no. Senator Beaudoin could help us with the following question: Are we constitutionally within our rights to amend the Constitution because the legislature of Newfoundland asked us to do so? That does not mean it is constitutional. Any citizen of Newfoundland will be able to challenge the decision that the Parliament of Canada and the Newfoundland legislature will have made, believing that they have the right to do so. I raise this question because your way of thinking has forced me to think long and hard about this.
However, I am not convinced that the fact that the Legislature of Newfoundland unanimously adopted a motion and now requests that the federal government support that motion is an overriding argument. I do not think that it is necessarily true, that it is compulsory, just because Newfoundland wants the federal government to adopt its amendment. I wish the constitutional experts would have a public debate about this. I am not so sure I am wrong, but since I have no desire to show the arrogance of certainty, for the time being I am just raising this question.
The Hon. the Speaker: Honourable senators, I am sorry to interrupt you, but the 15-minute period, which includes questions, has now expired. If you wish to accept the question, we can ask for leave or you may decide not to respond.
Senator Gigantès: I would like to.
Hon. Senators: Leave is granted.
Hon. John Lynch-Staunton (Leader of the Opposition): One question!
The Hon. the Speaker: Honourable senators, is leave granted to answer this question?
Senator Gigantès: I want to respond to this question which had several components.
[English]
(2150)
Senator Lynch-Staunton: Honourable senators, Senator Gigantès would not give Senator Andreychuk leave to even finish a question. We are at least affording him the courtesy of answering a question, but no more.
The Hon. the Speaker: Is leave granted that the senator may be allowed to answer this question?
Hon. Senators: Agreed.
Senator Gigantès: One aspect of the honourable senator's question was that citizens will have the right to challenge this resolution, if it is passed, before the courts. Of course the citizens have the right to go before the courts. Who is disputing that?
As well, there is no obligation on the part of the Parliament of Canada to vote the way the Assembly of Newfoundland and Labrador wants us to vote.
Senator Prud'homme: Good!
Senator Gigantès: I am not saying that we have that obligation. However, I have said that it seems to me that the decision of the Assembly of Newfoundland and Labrador is a sound one, because the current system in Newfoundland supports a sort of bizarre and outdated segregation among young Christian children.
On motion of Senator Berntson, debate adjourned.
Criminal Code
Bill to Amend-Report of Legal and Constitutional Affairs Committee-Debate Adjourned
The Senate proceeded to consideration of the sixteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-3 to amend the Criminal Code (plea bargaining)), presented to the Senate on November 7, 1996.Hon. Sharon Carstairs, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, moved the adoption of the report.
She said: Honourable senators, I rise today to move the adoption of the sixteenth report of the Standing Senate Committee on Legal and Constitutional Affairs concerning Bill S-3 to amend the Criminal Code (plea bargaining).
The committee held two meetings on Bill S-3. It heard from the sponsor of the bill, Senator Anne Cools, and from officials of the Department of Justice. The committee also wrote letters to all provincial attorneys-general inviting them to make a presentation to the committee on Bill S-3.
Honourable senators, in brief, Bill S-3 seeks to amend the Criminal Code to require courts, in specified circumstances, to set aside a sentence imposed on the basis of a plea bargain where it is shown that the accused failed to disclose or misrepresented matters relevant to the charge. Therefore, where it has been established that the accused misrepresented relevant facts or did not disclose all the facts, upon application by the prosecutor, the sentencing court would set aside the plea bargain sentence. The court would then resentence the accused on the charge and allow prosecution for any other offence in respect of which a charge was withdrawn or stayed as part of the plea-bargain agreement.
In their testimony before the committee, Department of Justice officials raised serious concerns as to the constitutionality of Bill S-3 in light of section 11(h) of the Charter of Rights and Freedoms, which reads:
Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
Furthermore, the committee heard that there is no time limit under Bill S-3, and, conceivably, a sentence could be set aside at any time, even after the accused had served their time and had been released.
Following this presentation, the steering committee of the Standing Senate Committee on Legal and Constitutional Affairs met to discuss future witnesses. All three members of the steering committee agreed that the decision had to be made by the committee as a whole as to whether future witnesses would be heard. The committee decided unanimously that their concerns with respect to the constitutionality were significant, that, therefore, further witnesses should not be heard, and that the bill should be reported back to this chamber, reflecting our concerns as to the constitutionality of this bill.
Honourable senators, we commend Senator Cools for bringing this matter to the attention of the Senate. She reflects the views of many in this country. However, regrettably, we have such grave concerns about the constitutionality of Bill S-3 that we do not believe that we should proceed further with this bill.
I know that Senator Cools is not in the chamber this evening, and that she would like this order adjourned in her name, if that is agreeable to members of the Senate.
On motion of Senator Carstairs, for Senator Cools, debate adjourned.
The Senate adjourned until tomorrow at 2 p.m.