The Hon. the Speaker: Honourable senators, I am pleased to inform the
Senate that the pages exchange program between the Senate and the House of
Commons is continuing. I wish to introduce the two House of Commons pages who
will be with us this week. First, Meaghan Cain from Lethbridge, Alberta. Meaghan
is pursuing her studies in General Arts at the University of Ottawa. Welcome.
Samuel Saint-Onge is in administration at the University of Ottawa. He comes
from Fredericton, New Brunswick. Welcome Samuel.
Hon. Philippe Deane Gigantès: Honourable senators, I rise to offer my
thanks and also to apologize. I offer you my thanks for the friendship and
sympathy you have shown me, and I apologize because I embarrassed some of you.
On the day of the Speech from the Throne, I fell briefly asleep. That was
captured on film, and shown around the country. Several senators have spoken to
me about the embarrassment that they felt upon being chided with the fact that
senators sleep in the Senate.
I have been asked by various talk shows to explain myself, but declined since
I did not think that one paraded one's private grief on talk shows.
For many months, I have not been able to sleep too well. I am under
medication, as I was then. I am ashamed that it happened, and I am sorry.
Hon. Orville H. Phillips: Honourable senators, I do not think the
honourable senator should feel self-conscious in any way. The reaction of most
Canadians was to go to sleep during the Speech from the Throne, and I do not see
why the honourable senator should do anything different.
Interim Report of Banking, trade
and commerce Committee on Study-Confirmation of Tabling-Motion for Consideration
Hon. Michael Kirby: Honourable senators, I wish to inform the Senate
that, pursuant to the order adopted by the Senate on Thursday, March 28, 1996, I
deposited with the Clerk of the Senate the second report of the Standing Senate
Committee on Banking, Trade and Commerce entitled, "Crown Financial
Institutions" on April 1, 1996.
I move that the report be taken into consideration at the next sitting of the
The Hon. the Speaker: Honourable senators, I wish to draw your attention
to the presence in the gallery of a delegation of seven regional chairs and
three members of the Federation Council of Russia. They are here under an
exchange program with the Parliament in Moscow that has been in operation for
two years, and which has now been extended to the regions. We wish to welcome
you to the Canadian Senate.
Notice of Motion to Authorize
Committee to Study Canada's International Competitive Position in communications
Hon. Lise Bacon: Honourable senators, I give notice that, on Wednesday,
May 1, 1996, I will move:
That the Standing Senate Committee on Transport and Communications be
authorized to examine and report upon Canada's international competitive
position in communications generally, including a review of the economic,
social and cultural importance of communications for Canada;
That the papers and evidence received and taken on the subject by the
committee during the First Session of the Thirty-fifth Parliament be referred
to the committee;
That the committee be authorized to permit coverage by electronic media of
its public proceedings with the least possible disruption of its hearings; and
That the committee present its final report no later than December 31,
Notice of Motion to Authorize
Committee to Engage Services
Hon. Michael Kirby: Honourable senators, I give notice that on Wednesday
next, May 1, 1996, I will move:
That the Standing Senate Committee on Banking, Trade and Commerce have
power to engage the services of such counsel and technical, clerical and other
personnel as may be necessary for the purpose of its examination and
consideration of such bills, subject-matters of bills and estimates as are
referred to it.
Closure of Canadian Centre for
Magnetic Fusion-Government Position
Hon. Thérèse Lavoie-Roux: My question is for the Leader of the
Government in the Senate. Honourable senators, the Canadian Centre for Magnetic
Fusion, located in Varennes, Quebec, was established in 1987 to operate the
Tokomak, a device used in research on fusion. The centre is independent and is
run by a board of directors.
Research into fusion may, in the long term, lead to the development of an
environmentally sound method for producing electricity on a large scale.
This project was started in 1987. The government made a 30-year commitment,
because this is very long-term research. Then all of a sudden, in the budget, it
is decided without any consultation with those involved - the Government of
Quebec, Hydro-Québec and the centre itself - that funding will be cut and the
project terminated in March 1997.
How can the Leader of the Government explain the government's position,
considering that research is proceeding?
In its 15 years of operation, the reputation of this project has risen to
international prominence as one of a handful of centres in the world studying in
that field. Japan is another area where this type of research is taking place.
Could the Leader of the Government in the Senate explain the rationale of the
government in scrapping 15 years of internationally acclaimed work and developed
expertise in such an important area as alternative, environmentally sound energy
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I regret that I cannot give my honourable friend a sufficient answer today. I
will try to do so on another occasion.
It is true that federal funds for the fusion projects in both Quebec and
Ontario will end. In addition, basic nuclear research in Ontario will also be
As I understand it, in the interests of the whole area of consolidating
resources federally, and in order to pursue the objectives of the program
review, Natural Resources Canada made a judgment that the fusion pursuits were
at a lower priority than others. I realize this is not a satisfactory answer at
all for my honourable friend. However, Natural Resources Canada will continue to
fund research and development on energy efficiency and renewable energy sources
In the meantime, I will try to elicit more details for my honourable friend
as to the rationale behind the decision. Nonetheless, that was the decision. I
regret that I cannot give a more positive answer to the honourable senator.
Hon. Roch Bolduc: Honourable senators, is the Leader of the Government
in the Senate aware that, in Canada, some budgets are being cut while others are
increasing? It is important to realize this.
Senator Lavoie-Roux: Honourable senators, I support the question put
by my colleague Senator Bolduc. Official government statements give all kinds of
reasons for reducing the deficit. We all agree. At the same time - and I am
happy for my colleague from British Columbia - the budget for research and
development in that province is being increased from $19 million to $35 million.
I imagine the minister will explain those decisions.
While the minister is seeking a response, will she also provide an
explanation as to how the scrapping of this project fits in with what is set out
in the Liberal government's Red Book? It is stated in the Red Book:
The lack of an R&D culture within government...hampered our ability to
spur on new technological developments and bring them from the laboratory to
Will the cancellation of the magnetic fusion project enhance the bringing to
market of this type of technology?
This is a most serious question considering the money that has been spent
already on this project, as well as the interesting results which have been
achieved. Everyone knew it would be a long-term project. Japan is still working
on it. I would like to have one good reason why this project is being scrapped
with no consideration being given to the consequences, the money involved, and
the people working there. Approximately 30 doctors of physics are currently
working on this project, not to mention the many technicians and researchers.
I hate to say this, but this decision reminds me of the events leading up to
the disappearance of the Collège St-Jean. This is a serious question. I would
like the minister to obtain all of the answers on this matter and, if possible,
deliver them here in the Senate chamber.
Senator Fairbairn: Honourable senators, this is indeed a serious
question. There is no doubt in my mind that, in the difficult choices that were
being made, this project was given serious consideration. However, I will try to
obtain further information on that specific project for my honourable friend.
I should mention that, in the field of research and development, the federal
government spends $700 million in Quebec, which represents about 23 per cent of
its total spending. The government also spends about a quarter of its regional
research and development money in that province. However, that is not germane to
my honourable friend's question. I will do my best to obtain the information she
Senator Lavoie-Roux: Honourable senators, I want the minister to
understand that I am not asking questions about the statistics. We know that
Ontario receives 20 per cent, Quebec receives 7 per cent, or whatever, and B.C.
receives another amount. That is not the point. The point is that when someone -
- is involved in a long-term project such as this one, there are consequences
for research in the medium and the long term. If the research was worthless, I
would say that we are in agreement, and that we will begin again another time.
The purpose of my question is not to get at comparisons between provinces, but
at the manner in which the government establishes its priorities. Once again,
the government is ignoring another small item in its Red Book.
Export of Groundfish from Nova
Scotia-Request for Answer to Order Paper Question
Hon. Gerald J. Comeau: Honourable senators, my question is for the Leader
of the Government in the Senate. On November 6, 1995, I placed on the Order
Paper a question which related to the export of groundfish from southwestern
Nova Scotia. I have yet to receive a response to that question. It is a source
of embarrassment for me, when I go home to my area on weekends, not to have an
answer to that question.
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
as my honourable friend will know, the issue of questions from the previous
session of Parliament is now before the Speaker for a ruling. Perhaps I should
await that ruling before dealing further with my honourable friend's inquiry.
I am well aware that there were a great number of questions answered in the
last session of Parliament, just as there were a number that were not answered.
I await the Speaker's ruling after which, perhaps, there will be a way to fulfil
my honourable friend's desire concerning this issue.
Senator Comeau: Honourable senators, I do not think that my
constituents, who are asking about the government's position on this matter,
would take too kindly to being told that the government does not want to respond
because the Speaker might say that the government need not respond to the
question. I am asking the Leader of the Government to respond to the question on
behalf of the constituents of my area without having to wait for a Speaker's
ruling on a question which is now six months old.
It is embarrassing for me to go back to my home area on weekends, visit the
fish plants and say to the people there that the government cannot answer the
question. It is a most important question, one to which we should have a
response without having to wait for the Speaker to tell the leader whether she
should respond or not, with all due respect to the office of the Speaker.
Senator Fairbairn: Honourable senators, this is a new session of
Parliament. My honourable friend has asked me a renewed question, which I will
pursue, as I was attempting to pursue the previous question. I will enquire
about this matter again.
Harmonization with Provincial
Sales Taxes-Necessity for Compensation to Atlantic Provinces-Government Position
Hon. Orville H. Phillips: Honourable senators, last week the Leader of
the Government in the Senate sounded a great deal like Sheila Copps when she was
describing the benefits to the Atlantic provinces of harmonizing the GST and the
provincial sales taxes. If the benefits are as she described them, why is it
necessary to offer $1 billion in compensation to the three Atlantic provinces
who have agreed to harmonization?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
the benefits to Atlantic Canada in the longer term will be profound. As I said
last week, in terms of consumers, jobs, business prospects, and exports, in the
interim period there will be a change in the sales tax revenue in Atlantic
Canada. For that reason, the federal government is sharing with the provinces in
Atlantic Canada which have agreed to enter into this new harmonization process
the initial burden of getting back on track, on the longer term, with the
harmonized tax. I do not regard it as being wrong for the federal government to
do this, as others have suggested. In fact, it is right for the federal
government to do this.
The three provinces which have agreed on this plan believe it to be the very
best deal they could have for the future of their provinces. They are sharing
with us, in a transitional phase, this additional sum of money which will
compensate them for the loss of revenue that they will sustain with the
lowering, to a degree, of the sales tax rate in their provinces.
There is nothing behind the scenes about this agreement. Indeed, there is a
public formula to which every province in Canada interested in harmonizing with
the federal government will have access if they meet the requirements.
Certainly, the aforementioned provinces in Atlantic Canada meet the
requirements, and we are trying to be helpful to them in this way.
Senator Phillips: Honourable senators, with that answer, again the
leader sounded a good deal like Sheila Copps.
Harmonization with Provincial
Sales Taxes-Studies Conducted on Adverse Effects-Request for Particulars
Hon. Orville H. Phillips: Did the federal government conduct any studies
on the adverse effects of the harmonizing of the two taxes? If so, would the
honourable senator table those studies?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
this issue has been discussed at length with all of the provinces for two and a
half years. Were there studies? I do not know. However, I will look into that
matter for my honourable friend. Clearly, there have been very involved
discussions with the premiers and with the finance ministers of the various
In any circumstance, these kinds of taxation issues are not entered into
lightly. I can assure my honourable friend that those representing the provinces
in Atlantic Canada who decided to take advantage of this opportunity would have
done so with their eyes wide open and focused on the future, where there will be
gains for the people of those provinces through this harmonization process.
Senator Phillips: I look forward to seeing the studies.
Harmonization with Provincial
Sales Taxes-Nature and Timing of Compensation Payments-Government Position
Hon. J. Michael Forrestall: Since the Leader of the Government in the
Senate seems to be very much up to date on the matter of harmonization, could
she tell us whether the payments in lieu of lost revenue will come ahead of the
loss or after the loss? In other words, will the provinces be required to pay
for all of the loss and then receive a payment, or will they receive a payment
up front? Is the leader in a position to give us an indication as to what stage
in the process a form of ex gratia payment will be made?
Hon. Joyce Fairbairn (Leader of the Government): The payments will be
made annually, and the amounts are known now. The parties to this agreement will
not wait until the end of four years to tote up any losses. The payments will be
made on an annual basis, with the best efforts and knowledge that the two levels
of government can bring to bear on the matter.
Senator Forrestall: I appreciate that very much. I am not sure of the
actual figure, but if, for example, in Nova Scotia the figure was $180 million,
and the province received that amount at the first of the year and banked it,
that would mean another $18 million or $20 million annually in the provincial
Is this to be a game of smoke and mirrors? Is there any chance of that
happening? Or will this be a transparent and open transfer of funds to the three
Senator Fairbairn: Honourable senators, this is a transparent process.
The formula is a transparent adjustment formula which is triggered once the
provinces lose more than 5 per cent of their revenue. At that point, on an
annual basis, the federal government will pay 100 per cent of that amount for
the first two years, 50 per cent the third year, and 25 per cent for the last
year. In any event, I will be pleased to ask of my colleagues the question with
respect to the timing.
However, there is nothing behind the scenes or behind closed doors about this
agreement. It has been openly stated, and I am confident that I can reassure my
Harmonization with Provincial
Sales Taxes-State of Negotiations with the Provinces
Hon. Pierre Claude Nolin: Honourable senators, now that the government
has understood that the policy introduced by the Mulroney government was the
best and the only solution, and now that the government has recognized that
harmonizing federal and provincial sales taxes was the only option, can you tell
us how negotiations are going with the other six provinces?
We now know that Quebec was right. Three provinces of Atlantic Canada
recently recognized that fact. How is the harmonization process going with the
other six provinces?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
the position taken by the federal government will produce, for those who take
advantage of it, a result that will be much fairer to consumers and small
businesses, and will offer considerably more benefits than has been the case
Since the announcement was made last week concerning the three provinces of
Atlantic Canada, I do not know whether or not, within that week-long period,
there has been any immediate continuation of discussions with the other
individual provinces. However, it is certainly the intent of the Minister of
Finance to press on as vigorously as he can in attempting to bring in the other
provinces in Canada, for the culmination of what would be a national Canadian
sales tax. That is the goal of the Minister of Finance, and he is confident that
the other provinces will come along as well, particularly when they contemplate
the benefits which will accrue to the provinces that have had the commitment and
the foresight to take advantage of this proposal, which will be of benefit to
every part of the country.
Senator Nolin: Honourable senators, since the Leader of the Government
represents Alberta, does she have more information regarding what is going on
between her province and the federal government? At what stage are the
discussions with Alberta?
Senator Fairbairn: With respect to Alberta, the Minister of Finance
has made it clear all along to the government and to the people of Alberta that,
since that province does not have a provincial sales tax, the federal government
is not pushing them to harmonize.
However, it is not penalizing them in any way for not having one. The people
of Alberta are very clear about where they stand vis-à-vis this process. I am
sure it is known to my honourable friend that the Premier of Alberta has
suggested publicly that the basic tax be adjusted, and no doubt those views will
be expressed, if they have not been already, by the Provincial Treasurer, Mr.
Dinning. He and Mr. Martin are in regular communication. They will discuss these
However, as far as the province of Alberta is concerned, the federal
government is not putting pressure on Alberta to change its position, which it
believes is to the benefit of its citizens, in the same way that other provinces
make decisions for its citizens.
Harmonization with Provincial
Sales Tax-Comments by Members of Federal Government-Request for Clarification
Hon. Herbert O. Sparrow: Honourable senators, my question is for the
Leader of the Government in the Senate. The leader suggested in her last answer
that no pressure has been put on Alberta to have a national tax that is
equivalent to the other provinces. Why then are they putting that pressure on
the Province of Saskatchewan? That government does not want a harmonized GST and
PST, and has stated its position definitively.
I know of very few people in the province of Saskatchewan who would want a
harmonized GST. Yet many sources in the federal government, including the
Minister of Finance, blame the Province of Saskatchewan for not having a
harmonized GST and provincial sales tax. What right has the Minister of Finance,
the Prime Minister or anyone else in the federal government to tell the people
or Government of Saskatchewan what is best for us? I ask the leader, if she
would, to answer that question.
There is a memorandum in existence which says that the advantages for
Saskatchewan are too good to miss, but we cannot seem to find out what exactly
the "good" is that we will miss if the GST is not harmonized with the
provincial sales tax. How could Saskatchewan deal with a harmonized tax when
there is no provincial sales tax in Alberta? We have many problems with
cross-border shopping now. Harmonizing the taxes means that the citizens of
Saskatchewan will be taxed on all of their services and products which are not
As I mentioned, we have this great problem with cross-border shopping and the
9-per-cent tax. What will be the impact on such shopping when we have a
14-per-cent tax on the services?
It has been said that harmonization will be encouraging to business,
particularly small business. I know of no small business that is encouraging
harmonization in the Province of Saskatchewan. You can ask anyone in the
restaurant industry or the building industry; ask any plumber, electrician or
contractor who has never collected a provincial sales tax whether he wants to
start doing so. This action will not relieve any burden. It will increase the
burden on 60 per cent of the businesses of Saskatchewan.
We may harmonize the tax for those businesses which already collect both, but
that represents only 40 per cent of all businesses. The burden will increase for
the other 60 per cent. How can the government say that it decreases the burden,
and that small business wants this change? I have no idea.
Saskatchewan currently collects over 48 per cent of its sales tax from taxing
business inputs. That is not affected; the consumers will have to pick up that
tab. The consumers will pick up another 48 per cent of the taxes collected in
Saskatchewan. Surely the consumers of Saskatchewan are not interested in doing
Will the Leader of the Government in the Senate tell me why the federal
government is blaming Saskatchewan for not wanting this tax when neither the
government nor the people have asked for it and, in fact, are opposed to it? Is
it possible that she could appeal to the Minister of Finance to leave us alone?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I have listened carefully to what my honourable friend has said. I can assure
him that the federal government is not blaming Saskatchewan or any other
province in Canada over this particular issue. The federal government has been
trying to work out an arrangement with each of the provinces over the last two
and a half years. Three of the provinces have agreed to a proposition that was
put to them. The door remains open for the Government of Saskatchewan, if it so
chooses. No one is blaming the Province of Saskatchewan, or forcing that
province in any way to take an action which they do not wish to take.
My honourable friend has very strong views on this issue. He expresses strong
views on behalf of those in his province and perhaps the government of his
province. I am sure those views are considered back and forth between ministers,
but I assure my honourable friend that no blame is being laid on anyone. There
is no movement to force my honourable friend's province to do something it
chooses not to do.
Senator Sparrow: Honourable senators, I beg to differ. That is exactly
what the Minister of Finance is doing; he is blaming the Government of
Saskatchewan for not harmonizing its sales tax with the goods and services tax.
He says, "We want it. They do not want it." The blame is there. The
Minister of Finance has been making comments and threatening that we will suffer
politically because of our position. He is trying to tell the people of
Saskatchewan that they are missing out on a great deal by not harmonizing their
taxes, and the blame goes to the provincial government, not to the federal
government. He has stated that the federal government is asking for
harmonization, but he has not admitted that it will have a detrimental effect on
the people of Saskatchewan.
Senator Fairbairn: Honourable senators, I believe the difference here
is that the Minister of Finance does not share the view that harmonization would
be a harmful agreement for the people of Saskatchewan. Obviously, my honourable
friend and the Minister of Finance do not agree at this point in time, and
neither does the Government of Saskatchewan.
To get back to the initial question by my honourable friend, in promoting
what he believes to be the advantages of the harmonization process, the Minister
of Finance is not blaming either the government or the people of Saskatchewan.
The decision as to whether they wish to be involved lies with them. It is a
question of judgment and opinion as to which is the better way. However, no
blame is being placed on Saskatchewan, and none is intended.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, by way of a supplementary question, how does the Leader of Government
in the Senate reconcile her assertion that the Minister of Finance is quite
willing to let the provinces take the initiative on whether or not to harmonize
with a statement the minister made on March 12, when he complained that the
provinces were refusing to sit down with him to discuss harmonization. He stated
that he could not negotiate alone, and that he believed it was incumbent upon
provincial governments to recognize that Canadians want to have a single tax.
The Minister of Finance said then, and must still believe, that Canadians
want a single tax, but the provincial governments are not cooperating with him.
Now we hear today that it is the other way around; it is for the provincial
governments to take the initiative and tell the Minister of Finance whether or
not they want harmonization.
The government cannot have it both ways on this issue of harmonization; nor
can you have it both ways on Somalia, or on any other issue. The minister cannot
say one thing one day and then change his comments another day to suit the
current thinking of this government.
The minister said that the provinces will not play ball because they do not
understand. The minister is saying, in effect, that his government knows best,
and that we should harmonize because Canadians want a single tax. Then we hear
from Senator Sparrow and others that many Canadians do not want a single tax.
Senator Fairbairn: Honourable senators, obviously there were words of
frustration in the -
Senator Lynch-Staunton: Come on! Like Sheila Copps?
Senator Berntson: In the heat of an election!
Senator Fairbairn: There have been discussions with all of the
Senator Tkachuk: Even Alberta?
Senator Fairbairn: The Minister of Finance is not forcing anyone. He
is, and has been, making an offer for a considerable period of time. He will
continue to do so. He will continue to discuss and to hope that provinces across
the country will agree to take part in a harmonization process. It is that
Senator Lynch-Staunton: That is not what he said.
Senator Fairbairn: He is not contradicting himself at all.
Senator Lynch-Staunton: You are contradicting him.
Harmonization with Provincial
Sales Taxes-Possibility of Penalties for Provinces not Harmonizing-Government
Hon. Consiglio Di Nino: Honourable senators, I have a great deal of
sympathy for Senator Sparrow and his position. As a matter of fact, I thought it
was John Nunziata speaking.
Honourable senators, my question is a follow-up to the answer the minister
gave Senator Nolin a moment ago. I want to be sure I did not misunderstand what
the minister said. When the senator asked the minister about the situation in
Alberta, I believe she said, "We are not pressuring them." I believe
she also said, "We are not penalizing them." I trust that penalties
are not being considered for any province. Obviously, it would be of concern to
all of us if the government were penalizing those provinces which do not
harmonize. Perhaps the minister would clarify that for me.
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I would be pleased to do so. There is absolutely no intention or thought in that
respect on the part of the federal government. I used the word
"penalize"; perhaps there is a better word. However, the message I am
attempting to convey is that there is no question of the federal government
trying to retaliate against a province because it does not agree with what the
federal government is attempting to do. That is the case with Alberta, and it is
the case with the other provinces as well. There is none of that involved.
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable
senators, I have a response to a question raised in the Senate on March 27, 1996
by the Honourable Senator Erminie Cohen regarding the Port of Saint John.
New Brunswick-Cessation of Funding
of Dredging at Saint John Port-Government Position
(Response to question raised by Hon. Erminie Cohen on March 27, 1996.)
The Canadian Coast Guard's (CCG) decision to transfer dredging
responsibilities to the Port of Saint John is in line with the government's
position that those who benefit directly from service, should pay the costs
for providing that service.
The decision is also supported by the House of Commons Standing Committee
on Transport (SCOT) which recommended, in May 1995, that there should be cost
recovery for dredging where commercial users can be clearly identified and
that dredging for channel approaches and within port areas should be the
responsibility of the commercial ports.
The mixed cargo terminal, currently under construction at the Port of
Belledune, will play a key role in the movement of Canadian goods to world
markets, serving the shippers, industries and communities of north eastern New
Brunswick by providing efficient marine transportation infrastructure.
The expansion of Belledune Port will include a 315-meter long wharf, a
6,500-square-meter shed and 13.5 hectares of paved open storage area.
The cost of the project is currently estimated to
$32.2M. Financing is as follows:
Canada Ports Interport
TC Harbours and Ports contribution
Other federal contributions
(Infrastructure Program and Cooperation Agreement on Economic
Federal contributions can be divided into recoverable and non-recoverable.
Federal recoverable funding totals $3.85M while non-recoverable funding adds
up to $4.65M.
The Department of Transport's $1.5M contribution has been programmed into
the 1996/97 Departmental Operational Plan.
Resuming debate on the motion of the Honourable Senator Milne, seconded by
the Honourable Senator Bonnell, for the second reading of Bill C-13, An Act to
provide for the establishment and operation of a program to enable certain
persons to receive protection in relation to certain inquiries, investigations
Hon. Eric Arthur Berntson (Deputy Leader of the Opposition):
Honourable senators, I wish to begin by thanking our colleague Senator Milne for
her words at second reading of Bill C-13. I found her speech to be a balanced
overview of the legislation now before us and, as such, I will not take up a
great deal of time to repeat what she has already said.
Bill C-13 is not a controversial piece of legislation. It basically gives
legislative effect to what has been practised by the RCMP for the past 12 years.
That is not to say, however, that it is an unimportant piece of legislation; far
from it. The protection of witnesses has always been an important part of our
system of law and order and, in fact, I would suggest that it has been growing
in importance with the passage of time.
It was only weeks ago when we were all reading in the newspapers of the
arrests and the breaking up of a major crime ring in Montreal. There were, of
course, the deadly biker wars that affected several parts of Canada last summer,
and threaten to do so again this summer. To combat these types of criminal
activities, the law authorities inevitably rely on the assistance of those close
to the scene. For obvious reasons, this places those individuals in a high-risk
situation and, therefore, to encourage cooperation, some system of protection
must be established, a system that is reliable to the individual in question. I
believe that this initiative is right, proper and prudent.
It is prudent not only from the point of view of the "protectee"
but also from the point of view of the taxpayer. It is, after all, the taxpayer
who must fund this program and our system of law and order in general.
Bill C-13 provides a mechanism for accountability through the Solicitor
General in order to ensure that scarce public funds are being used wisely.
Honourable senators, the last point I wish to draw to your attention is that
this legislation also takes into account the federal nature of Canada's law
enforcement community. Under this bill, the RCMP will be able to work with
police forces of other jurisdictions, be they provincial or municipal, in the
quest to provide safer streets and homes for Canadians. In a country like
Canada, this is a necessity and one that is so often overlooked.
As I stated earlier, this appears to be a straightforward piece of
legislation, and, therefore, I suggest that it be sent to the appropriate
committee where departmental officials, who are well versed in the bill's detail
and history, can be called upon to answer any outstanding questions.
Hon. Michael J. Kirby moved second reading of Bill C-15, to amend, enact
and repeal certain laws relating to financial institutions.
He said: Honourable senators, Bill C-15 is familiar to me and other members
of the Standing Senate Committee on Banking, Trade and Commerce because it
reflects the recommendations of a report of the Banking Committee tabled about a
year and a half ago. That report was entitled "Regulation and Consumer
Protection in the Federally Regulated Financial Services Industry: Striking a
Balance," and was tabled in this chamber in November of 1994.
Some of you may remember that report. It dealt with issues relating to the
safety and soundness of the Canadian financial system, and was developed as a
result of hearings which were undertaken by the Banking, Trade and Commerce
Committee in light of the failure in the fall of 1994 of Confederation Life and
its related trust company. One of the committee's key goals at the time was to
assess the mechanisms that were in place to protect the Canadian consumer in the
financial services market and to make recommendations on how those measures
could be strengthened. After a series of hearings in June, the committee
reopened its hearings that fall to look into the policy implications arising
from the specific case of the collapse of Confederation Life and its associated
Bill C-15 results from a white paper issued by the department in February of
1995, some four months after the Banking Committee reported. The white paper was
based largely on the findings of the Banking Committee.
There are four key principles in Bill C-15, principles which were initially
espoused by the committee in its report in November of 1994. The measures in the
bill all flow from those four principles.
The principles are: First, that ownership of financial institutions is a
privilege and not a right; second, that it is preferable to have early
intervention and early resolution of problems when financial institutions are
experiencing financial difficulty; third, that financial institutions need an
appropriate framework to encourage them to solve their own problems in a timely
and efficient manner; fourth, that there be accountability and transparency in
the financial system.
Underlying each of these principles is an even more basic assumption. The
supervisory and regulatory system is designed to protect the rights of
depositors, policyholders and creditors. It is not designed to protect
As legislators, we cannot be concerned with the detailed specifics of which
financial services companies will succeed or fail. This is a decision that only
the market and market forces can make. To involve the regulators of financial
services companies in management decisions to such a degree that no failures
ever occur would clearly constrain the sector to the point where it would be
unable to compete internationally and, indeed, within Canada. Consumers must be
protected, but financial service providers must also have the ability to
innovate and take risks if they are to be successful and useful to their
A fine balance must therefore be struck between these two conflicting goals
of allowing adequate incentive for risk and progressive decision making, while
at the same time ensuring adequate protection for consumers.
Achieving this balance was the goal of the report of the Standing Senate
Committee on Banking, Trade and Commerce some two years ago and is, in turn, the
goal of Bill C-15. In pursuance of this goal of striking a balance, Bill C-15
seeks to protect the rights of policyholders, depositors and shareholders by
setting up an effective early intervention mechanism for troubled financial
Specifically, Bill C-15 gives the Office of the Superintendent of Financial
Institutions the power to deal with the problems of an institution early on,
before capital is depleted. This measure flows from a key and central
recommendation made in the Banking Committee's report. In the past, the Office
of the Superintendent of Financial Institutions had more scope to close an
insurance company before it became insolvent than it did for a deposit-taking
institution. Bill C-15 eliminates this gap and applies an identical framework to
all federally regulated financial institutions.
It is worth noting that under the early intervention measure in Bill C-15,
the Minister of Finance will no longer need to come to an independent view
regarding the solvency of an institution. This function is more appropriately
placed in the hands of the regulator who, after all, is involved in the
day-to-day monitoring of the activities of an institution. Flexibility is built
into this new mechanism by giving the minister the power to prevent a closure
if, in his or her view, it is not in the public interest to do so.
Of course, this does not mean that the Office of the Superintendent of
Financial Institutions will micromanage financial companies. To do so, as I have
said and as the committee stressed in its report, would be clearly
counter-productive. This is why an important emphasis of Bill C-15 is to provide
a framework in which financial institutions can deal with their own problems in
a timely and efficient manner.
Again, as per the Banking Committee's report, the priority in Bill C-15 is on
problem prevention rather than focusing solely on how to resolve a problem once
a financial institution gets into serious trouble. A troubled financial
institution will now have an incentive to act when they know that OSFI has the
power to move in to take over the company if its concerns are not dealt with
Bill C-15 also provides important new powers for the CDIC - the Canada
Deposit Insurance Corporation - that will enable it, like the Office of the
Superintendent of Financial Institutions, to emphasize problem prevention for
deposit-taking institutions. The CDIC is given the power which has been
recommended in at least three Banking Committee reports that I can recall over
the last decade. Specifically, CDIC is being given the power under this act to
introduce risk-based deposit insurance premiums. The introduction of these
risk-based premiums makes it possible for CDIC to create incentives for
institutions to change their behaviour.
In addition, the bill increases the options available to CDIC after an
institution is taken over, when CDIC is involved in restructuring the
institution. Bill C-15 also makes it possible for the CDIC to borrow money from
sources other than the Consolidated Revenue Fund.
Each of these measures, whether undertaken by CDIC or OSFI, reflects the
principle that ownership of a financial institution in Canada is a privilege and
not a right. No owner of a financial institution has the right to continue in
business until the firm hits a brick wall and then expect taxpayers to pay the
However, if a company does hit the brick wall, regardless of monitoring by
OSFI or CDIC, Bill C-15 makes some important changes as to how the affairs of
insurance companies are to be managed in liquidation. Basically, the bill will
provide more flexibility to the liquidator to restructure the insurance
company's affairs. The liquidator will have greater scope to enhance the value
of assets placed in receivership and to improve recovery on assets. Again, the
essence and direction of these changes are absolutely consistent with the
Banking Committee's report of two years ago.
The bill also introduces a number of steps to provide for strong, effective
corporate governance of financial institutions. These corporate governance
changes also focus on problem prevention. An effective board of directors is the
ultimate front line of problem prevention. Both Bill C-15 and the report of the
Banking Committee of two years ago pay specific attention to this fact.
For example, Bill C-15 adopts the Banking Committee recommendation that makes
it no longer possible for the board of a financial institution to be identical
to the board of its unregulated parent company. This measure focuses the
attention of the board of directors of the financial institution on the company
on whose board they sit, rather than on the business affairs of the parent
Bill C-15 also follows the recommendation of the Banking Committee by
granting the Superintendent of Financial Institutions the power to veto
appointments to boards and senior management positions of troubled companies. In
addition, for insurance companies the Superintendent will also have the power
under Bill C-15 to preclude a chief financial officer from being appointed
actuary of the insurance company unless the Superintendent and the audit
committee of the board expressly authorize such a joint appointment in writing.
A key focus of the Banking Committee's report was on the powers of OSFI. The
committee recommended that OSFI be given a clear mandate and broader powers of
regulation, and that it be enabled to act early and effectively rather than
having to wait until a financial institution was essentially beyond the point
where it could be saved.
Bill C-15 reflects the spirit of those recommendations by giving the
Superintendent several powers in addition to the ones I have already mentioned,
such as the power to develop standards of sound business practices for insurance
companies; the power to appoint an external actuary for an insurance company at
the insurance company's expense; the power to allow financial institutions to
enter into transactions with a related party if the institution's decision to
enter into the transaction was not likely influenced by the related party. This
change essentially addresses some of the extremely rigid rules which currently
exist with respect to insurance companies.
All of these additional powers for the Office of the Superintendent of
Financial Institutions again confirm the emphasis in Bill C-15 on problem
prevention. This emphasis is also explicit in the measures in the bill providing
for a new framework for OSFI to provide better disclosure of data to the public.
This in turn provides a better base for financial analysts to work so that they
can provide better information to the public. When the public knows more about
the institutions they deal with and the risks associated with these
institutions, the public will act as a front-line regulator through its
The Banking Committee felt it was very important to involve the public in the
regulation of financial institutions. In line with this view, Bill C-15 adopts a
significant committee recommendation that makes it easier for consumers to
distinguish a holding company from its financial institution's subsidiary. Under
Bill C-15, it will no longer be permitted for a holding company to be called
"Something Trustco" or "Something Lifeco" where its
financial institution subsidiary is called "The Something Trust
Company" or "The Something Life Insurance Company." In other
words, we attempted to ensure that the name of the holding company and the name
of the financial institution subsidiary are clearly distinguishable in the minds
It is clearly critical that consumers know who they are dealing with and have
as much information about that financial institution as possible. That
information, in turn, must be comprehensible to the consumer if financial
regulation is to work to its maximum efficiency.
Finally, honourable senators, Bill C-15 makes a number of significant
amendments to the Payment Clearing and Settlement Act. The bill takes
significant steps to control systemic risks to the payment system. The payment
system is the major clearing and settlement system for financial institutions.
The failure of one participant in a clearing system cannot be allowed to spread
to other members of a group.
Accordingly, Bill C-15 puts into place three important measures to control
this type of systemic risk. The bill gives the Bank of Canada explicit powers in
the oversight of clearing and settlement systems that are potential sources of
systemic risk; the capacity to participate in aspects of these systems,
including large-value transaction systems, and statutory recognition to what is
called in the industry netting arrangements in payments and clearing and
settlement systems so that Canadian participants, specifically in derivatives
markets, have greater certainty that their transactions will close. Each of
these measures will reduce the probability of systemic risk and enhance the
international competitiveness of Canada's clearing and settlement systems.
I should add parenthetically, honourable senators, that the payment system is
a subject that has interested the committee for some time, and is likely to be a
subject to which we will be paying special attention in the future, including
the possibility of holding a set of hearings on the payment system sometime
later this year or early next year.
In summary, let me say that there can be no doubt that Bill C-15 is an
important piece of legislation. Canada's financial institutions will go through
profound change in the coming years. This change will be technology driven and
consumer driven. It will be both self-sustaining and dynamic. Moreover, the pace
of change will not slow down. To take one example, in the not too distant
future, it is conceivable that Canadian consumers, through advances in
information technology, will have the ability to shop for their financial
services provider on a global rather than on a national or regional basis.
In the face of this scenario, Bill C-15 works to ensure the continuing
success of our supervisory and regulatory system. It is an important step in
ensuring that both our financial institutions and our regulators have the
ability to respond to change.
The need for Canadian financial institutions to be both safe for the consumer
and competitive both nationally and internationally will become more important
as we go into the future. Therefore, on this basis, and because of the fact that
this bill implements the vast majority of the recommendations made by the Senate
Banking, Trade and Commerce committee two years ago - recommendations which were
supported unanimously by the committee and which arose out of the so-called
Confederation Life set of hearings that the committee held - I urge speedy
passage of this bill in this chamber on second reading, and that it be referred
to the Standing Senate Committee on Banking, Trade and Commerce as quickly as
Hon. Consiglio Di Nino: Will the honourable senator take a question?
Senator Kirby: Absolutely.
Senator Di Nino: I agree generally with the bill and its contents.
However, I have a couple of concerns. Perhaps the honourable senator could
either give me some answers now to my questions, or perhaps during the
committee's deliberations he could look at them and report to us at a later
My concern is, first, that the smaller institutions not be unduly penalized
or disadvantaged because of their size; and, second, that entry into the
industry will be restricted in some manner that will make competition less,
which would mean that the consumer would suffer.
Does the honourable senator know what criteria will be used to assess the
risk on which the premium will be based?
Senator Kirby: I do not think anyone at the present moment knows the
answer to that question. However, what I do know - and this information is up to
date as of approximately one week or ten days ago - is that the CDIC is
currently in the process of developing exactly the question that the honourable
senator has asked, namely, what criteria should be used for a risk-based premium
system; and, second, the extent to which a risk-based system ought to be applied
right off the top, or whether it should only be applied once an institution gets
The committee has strongly urged the government - at least for the decade
that I have been on the committee - to do various things to promote smaller
institutions. In fact, I have stated on the public record many times that it is
the small institutions in Canada that have fundamentally made all the
significant, innovative changes. The best two examples that come to mind are,
first, the decision to extend banking hours beyond 10 a.m. to 3 p.m., when
Canada Trust extended their hours to 8 a.m. to 8 p.m. A number of other small
trust companies jumped on the same bandwagon, and finally the banks were forced
to respond. Similarly, the decision to go to daily interest savings accounts was
started by credit unions in British Columbia and, ultimately as a response to
this, the larger institutions responded.
You will find that it is not only the committee but also senior people, both
in OSFI and CDIC, who are very aware of the need to ensure that you do not
inhibit the smaller player. I will endeavour to respond in detail to the
senator's questions. Once those criteria are developed, I suspect it likely -
and I would need to speak with Senator Angus about this - that the committee
will ask representatives from the CDIC to come before the committee and explain
to us what the criteria are. This will likely occur in the fall, not now. When
we do that, I will invite you to come to the committee. Given your background,
you will be quite helpful.
Senator Di Nino: If we are to be looking at a piece of legislation
where a risk-based premium is a major component and we do not know what that
will be based on, then I suggest we should not be passing that legislation in
this house. However, I am pleased that the honourable senator will look at that
aspect for us. I would be more than happy to attend that particular meeting.
I must point out a small correction. Notwithstanding all the credit due to
Canada Trust, I think you will find that a number of other, smaller trust
companies created the longer banking hours before Canada Trust.
Senator Kirby: I am sorry. I thought I had corrected that.
Senator Di Nino: That is neither here nor there.
By way of a question, I should like to place on the record a recommendation
to the committee: When looking at the legislation - that is, taking into account
the question I asked about how this premium will be based - does the legislation
envision that size will play any role in the assessment of the strength of the
organization in arriving at what kind of premium they should charge?
Senator Kirby: I have not asked this question of the CDIC nor of OSFI,
but I would be surprised if size is an issue. Many of the smaller institutions
are successful institutions. There are a number of criteria that have nothing to
do with size.
To give you an example, when we looked at the issue of the collapse of
Confederation Life and its trust company, the members of the committee at the
time were extremely surprised that something in the order of a little over 60
per cent of the trust company's investments were in real estate, largely in the
Toronto area. This was done, obviously, on the misplaced assumption that real
estate in Ontario in general, and in Toronto in particular, could never go down.
At the time, Confederation Life was the country's fourth largest insurer.
Size has nothing to do with degree of risk. In no meetings that the committee
has had, or I have had, with people from the CDIC or OSFI, has it ever been
suggested that size is a factor. I would be very surprised if that arose.
Hon. W. David Angus: Honourable senators, I, too, rise with reference
to Bill C-15. As stated by Senator Kirby, the proposed legislation was inspired
by the work and the report in 1994 of the Standing Senate Committee on Banking,
Trade and Commerce. Among other things, the committee studied the public policy
implications of the Confederation Life Insurance Company failure. The bill
follows a rather timid government white paper entitled, "Enhancing the
Safety and Soundness of the Canadian Financial System" issued in February
As mentioned, the legislation came before us in the last session of
Parliament as Bill C-100, but died on the Order Paper at prorogation.
In its report, the Banking Committee had attempted to encourage the striking
of a fine balance between regulation and consumer protection through its 42
complementary and interrelated recommendations. I am pleased to note that much
of Bill C-15 faithfully reflects the committee's suggestions. However, I am
concerned that by failing to adopt certain of the recommendations the government
may have disturbed this fine balance. An example of such a flaw is the
government's disappointing failure, for purely political reasons, to introduce
in Bill C-15 at least a symbolic element of co-insurance regarding public
deposit insurance, or to delineate a clear and viable rationale for deposit
insurance in the contemporary economic environment. It is my intention to
address this and other such disturbing omissions in the bill at a later date.
Today, however, I should like to focus, with approval, on the bill's obvious
and necessary intent to enhance the ability of OSFI to intervene with remedial
or conservatory measures to protect consumers, customers or potential customers
of Canada's financial institutions. When the Banking Committee scrutinizes this
legislation, possibly as early as this evening, its members will be interested
in learning whether or not Bill C-15 adequately empowers the Office of the
Superintendent of Financial Institutions to require disclosure of key
information, to intervene in a timely enough fashion in the event of an imminent
or potential failure of a financial institution, and whether or not the proposed
regulatory powers and responsibilities for OSFI and CDIC are clearly enough
I understand, for example, that certain technical provisions in the bill
might have the effect of removing an appeal remedy currently available to an
institution in the face of a controversial inhibiting order from the regulator.
The committee, after study, may well consider that an amendment would be
appropriate in that regard.
During its 1994 study, the Banking Committee emphasized three key objectives
relating to public deposit insurance. They were: first, to protect the integrity
of the Canadian payment system; second, to provide an element of consumer
protection; and third, to enhance competition among federally regulated
deposit-taking institutions. I believe it is important that Bill C-15 be
examined closely within the context of these stated objectives.
As far as the payment system is concerned, the bill seems to include a number
of initiatives which address the integrity issue. However, does it go far
enough? Since the clearing and settlement functions are considered so
fundamental to the soundness of our financial system, the committee will wish to
examine the payment system, as Senator Kirby has suggested, either in committee
or in a more meaningful way at a later date.
Finally, honourable senators, the committee will wish to understand clearly
the government's public policy rationale in Bill C-15, how this policy objective
fits into the overall scheme of existing Canadian financial institution
regulations and, more important, in light of its recent dismal record, how the
government intends to be accountable for its actions in implementing its
proposed new regulatory powers.
Consequently, I look forward to dealing with this piece of legislation in
The Hon. the Acting Speaker: Is it your pleasure, honourable senators,
to adopt the motion?
Hon. Eymard G. Corbin moved second reading of Bill C-18, to establish the
Department of Health and to amend and repeal certain Acts.
He said: Honourable senators, before getting to the content of Bill C-18, to
establish the Department of Health and to amend and repeal certain Acts, I want
to make a comment on the process followed by the document before us.
Bill C-18 had another life in the House of Commons, where it was introduced
on March 8, 1996. A framed note on the title page reads as follows:
Printed, pursuant to Order made on March 4, 1996, in the same form as Bill
C-95 of the First Session of the Thirty-fifth Parliament as amended in
committee, as a working copy for the use of the House of Commons at Report
Bill C-95 went through first reading in the House of Commons on June 1, 1995.
It was debated at second reading onNovember 2, 6 and 7, 1995. It was sent to a
committee on November 8, reviewed on November 23 and 28, and then amended on
November 30, 1995. The bill was reinstated in the House of Commons on March 28
of this year as Bill C-18. A vote at third reading took place following the
debate held on April 19 and 22. The bill was passed on April 23 and then
referred to us.
In the meantime, the Prime Minister proceeded to make some ministerial
changes. The Honourable Diane Marleau, who had introduced Bill C-95, was
replaced by the Honourable David Dingwall, whose name replaced that of Ms
Marleau on the title page of the bill. So, a new sponsor, changes in the
original text, a new number and, eleven months later, the bill finally arrives
here. This is where we are, honourable senators.
I will now move on to Bill C-18 itself, but first I want to thank the staff
of the minister and of the department for helping me get a better grasp of this
legislation. Honourable senators, I ask for your patience since, at this stage
of the review of Bill C-18, I may not have all the answers to your questions.
The detailed study in committee will be closely followed by departmental
personnel so that they can answer your questions and comments.
The fact is that this bill is very simple. However, the department that it
seeks to establish is of paramount importance to the health of Canadians.
This is an administrative measure which is part of the federal government's
restructuring process. Other departments underwent such a restructuring process
in the past and some will undoubtedly do so in the future. Come to think of it,
is there any department, in the last 100, 50 or even 25 years, that has not
undergone any change, even a change of name?
Bill C-18 will not change in any way the objective content of the acts that
the Department of Health will administer. Nor will it change the department's
basic mandate or the minister's responsibility.
Clause 4 of Bill C-18 clearly defines the powers, duties and functions of the
minister. The bill, as you may have noticed, includes a recommendation from His
Excellency the Governor General.
In addition to the general provisions that apply to many departments, the
bill includes the authority to make regulations.
In particular, I want to point out that, and I quote:
Nothing in this Act or the regulations authorizes the Minister or any
officer or employee of the Department to exercise any jurisdiction or control
over any health authority operating under the laws of any province.
Your preliminary review of Bill C-18 will certainly have shown the
transitional provisions made necessary following the transfer to Health Canada
of the responsibilities of the former Department of National Health and Welfare,
and following the transfer of a sector of the Department of Consumer and
As you already know, the "welfare" component of the former
Department of National Health and Welfare has been transferred to the Department
of Human Resources Development.
The expression "technical amendment" usually describes many
provisions in a bill such as this one, which includes no new policy statement.
However, the bill includes technical improvements, such as: the appointment
of inspectors and analysts for the purpose of any act for which the minister has
responsibility, with the same powers that they would have under the Food and
Drugs Act; the possibility of imposing fees, for example in regard to services
providing a commercial benefit, without having to go through the usual
legislative process, while guaranteeing that the parties concerned are treated
fairly; and the harmonization of the penalty structure with the Criminal Code.
These are all provisions that my honourable colleagues may want to discuss
with departmental officials when they appear before the committee if, of course,
this is the wish of committee members.
Honourable senators, I could wave the flag long and enthusiastically on
behalf of what is surely one of the crown jewels of the national government of
Canada, the Department of Health, but I will dispense with the rhetoric,
convinced that you share my views.
The purpose of Bill C-18 is to confirm the creation of the Department of
Health, and defines the mandate and the responsibilities of the minister. The
legislation translates into law the reorganization of government departments of
some two years ago. Welfare-related responsibilities were then assigned to the
Department of Human Resources Development. It is a simple piece of legislation,
yet it is a strong statement. It provides that the Minister of Health is
responsible for all matters over which Parliament has jurisdiction relating to
the promotion and preservation of the health of Canadians.
The definition of "health" in the bill is the same as the one
adopted by the World Health Organization, namely the physical, mental and social
well-being of the people of Canada. This is a recognition that the protection of
health extends more broadly than the mere treatment of illness. The social
determinants of health must be taken into account in order to improve the health
of the population. Promotion and education also play a major role in this
respect, and the bill recognizes it.
The bill makes it clear that the investigation and research into public
health and the monitoring of disease is a function which must be viewed from the
national perspective. The Laboratory Centre for Disease Control located in the
Department of Health is dedicated to programs preventing and reducing the impact
of chronic and communicable diseases in Canada.
The bill also recognizes the crucial role played by the Department of Health
in protecting the public against risks to health. This includes the evaluation
of drugs and medical devices, and ensures that these therapeutic products are
safe for public use and that they do what the manufacturers claim they will do.
The Department of Health works to assure Canadians that their food supply is
safe. Recent events in Europe regarding the so-called "mad cow
disease" illustrate vividly the importance of ensuring the safety of food,
not only from a health point of view but also from the point of view of trade
Health Canada has also an important role to play in working with other
countries to combat health threats coming from abroad. It does this, in my
opinion, very well. It is also in the national interest that standards are set
and enforced so that Canadians are assured of comparable health care services no
matter in what province they reside or travel.
All of this is to be done in a spirit of cooperation with the various
stakeholders and, in particular, in collaboration with the provinces. The bill
makes this clear at the end of subclause 4(2) when it stresses the importance of
cooperating with provincial authorities with a view to coordinating efforts for
preserving and improving public health.
Health Canada is committed to accomplishing its mission through its ongoing
work with the provinces and territories to improve the efficiency and
effectiveness of our health system while safeguarding the principles of the
Canada Health Act. Improving the health of Canadians in a way that reflects the
values of Canadians requires national leadership and commitment that can best be
achieved through the programs and services of Health Canada.
The government's efforts to maintain a high quality, responsive and
affordable health system is being strengthened by the creation of the new
Department of Health. The implementing legislation for Health Canada ensures
that the department's resources and activities are devoted to the policy and
funding challenges facing our national health system.
The cost-recovery provisions of the bill will also help face the current
context of fiscal restraint and shrinking resources. The Department of Health
Act will assist the government in meeting the challenge of ensuring that
Canadians continue to have access to the best health system in the world,
comprising health care principles, health promotion, disease prevention,
regulation of food, drugs and medical devices, research, and service delivery to
First Nations. The bill ensures that the department will continue to work
closely with all health stakeholders and the people of Canada. Health Canada
will provide national leadership and remain a full and active partner on all
matters concerning the health of Canadians.
The activities and programs of the new Department of Health will promote
equity of health among Canadians in all regions of the country. It is my strong
belief that, through the work of the new department, the government will be in a
good position to safeguard the health system that binds us together as a nation.
Hon. Mabel M. DeWare: Honourable senators, I rise today to express a
few words on second reading of Bill C-18, to establish the Department of Health.
I thank the honourable senator for his remarks.
In June 1993, the former Progressive Conservative government proposed the
most significant downsizing and restructuring a government had ever undertaken
in Canada. This included a cut in the number of departments from 32 to 23. Eight
departments were to be created or fundamentally redesigned. They were to have
new mandates. Another 15 were to be merged or broken up. Many of these changes
were maintained, we were pleased to see, by the present government.
Bill C-18 outlines the powers, functions and duties of the minister. In
general, these concern matters under federal jurisdiction regarding health
promotion and preservation that have not been assigned to another department.
The minister may appoint any person to be an inspector or an analyst for any act
for which the minister is responsible. Bill C-18 also allows for cabinet to
appoint a Deputy Minister of Health.
Subject to conditions set by the Treasury Board, the minister may fix fees
for services or facilities, for products, rights and privileges, and for
regulatory processes or approvals. The minister must consult those affected
prior to setting a fee. The fees must be published in the Canada Gazette
and may not exceed the cost of providing the service. In addition, the fees may
be reviewed as a statutory instrument by the appropriate parliamentary
committees. It will be an offence punishable on summary conviction to contravene
a regulation passed under this act.
This legislation does not give Ottawa authority to exercise any control over
any provincial health authority.
While in principle Bill C-18 does not appear to be contentious, some concerns
had been raised during the study of Bill C-95. Therefore, this legislation
should be referred to committee in order to review this bill in more detail.
Hon. Bill Rompkey moved that Bill C-11, to establish the Department of
Human Resources Development and to amend and repeal certain related Acts, be
read a second time.
He said: Honourable senators, Bill C-11, to establish the Department of Human
Resources Development, has been described as a "housekeeping bill." It
officially establishes a department that has been in existence for three years
now by order in council, a department made up of the former Department of
Labour, plus certain components of Employment and Immigration, Health and
Welfare, and Secretary of State.
It creates no new legal powers, changes no programs, modifies nothing in the
division of jurisdictions between the federal and provincial governments. The
programs and services offered in the entire department will remain as they are
once this bill is passed.
How, then, is this bill important?
It is important, honourable senators, because of the vision that lies at the
heart of this bill and of the new department. It is important because, while it
does not, in itself, change programs, it sets out a legislative framework for a
new way of delivering services. It is important because it underlines the
government's commitment to provide Canadians with services that are affordable,
effective and responsive. It draws together all of the different elements,
programs and policies of the federal government related to human resources into
one integrated, coherent system, the basis for a new approach to helping
Canadians as they deal with incredible changes in the workplace, in society, and
in the economy. It also provides the basis for new relationships between the
federal government and individual Canadians, between different levels of
government, and between governments and local communities.
The old ways are simply not relevant to the kinds of conditions we face
today, honourable senators. In a complex, increasingly competitive environment,
we must recognize the social realities that people face today. We cannot neatly
pigeonhole people's needs for job skills, for employment support, for social
security. We cannot, for example, address child poverty without addressing the
need for parents in low-income families to adapt and to retrain constantly. We
cannot provide meaningful, long-term solutions for workers displaced by
technological change without helping people to keep learning and adapting to
change throughout all of their lives. We cannot help communities pursue solid,
sustainable economic development without identifying and building the kind of
labour force that can drive economic growth. We cannot maintain a compassionate,
affordable, social security system unless we ensure that all components of the
system work together to create jobs and opportunities for Canadians.
Bill C-11 provides the basis, then, for an integrated, coordinated approach
to Canada's social and labour market programs; a single focal point in
communities all across the country, drawing together all the resources of the
federal government to help people find and keep jobs, and providing programs for
which the federal government is responsible, such as Unemployment Insurance and
Old Age Pensions.
Honourable senators, these measures have already been in place for a year.
This is enabling legislation. In 1994-95, Human Resources Development Canada,
for example, served 59,000 recipients of Old Age Security and Canada Pension
Plan benefits. Helping Canadians find and keep jobs is the priority of the
government. It is the number one priority for Canadians, and it is the
fundamental philosophy behind this bill.
For young people, it means youth internships that have already led to some
24,000 real jobs for young Canadians. It means Youth Service Canada, some 130
projects across the country that have already helped young people get valuable
work experience while serving their communities. It means student loans that are
more accessible, more flexible, more sustainable, helping more than 300,000
students last year alone. It means special grants, up to $9,000, to help more
than 13,000 high-need students continue their education.
An example of how Youth Service Canada is benefitting the people of my
province, for example, is the project operating in Milltown. The Hope Literacy
Council is receiving $96,000 to promote family literacy activities for children
and seniors. Twelve young Canadians are participating in this project.
It means increased funding for sector councils, bringing business and labour
together in key industries across the country to re-engineer for the future,
with every federal dollar generating $1.50 from private industry to train
Canadians. It seems to me that this is the pattern for the future in terms of
worker training. The partnership that will be created by these sector councils
in such fields as mining, the auto industry and so on, bringing together labour,
management, the federal and the provincial governments, will be a good pattern
for training in the future, which is so important for our productivity.
This bill will mean federal-provincial initiatives helping some 60,000 single
mothers, older workers, aboriginals and young people to get new skills and new
jobs. For example, in my province again, we are helping 5,300 individuals gain
access to education and work through the initiative called
"Transitions". The federal and provincial governments are
committing$20 million over three years on a cost-shared basis on this program.
This bill means new partnerships and new technologies to deliver services to
Canadians when and where they need them, with a new integrated, decentralized
service delivery network that is growing from 450 points to 750 points of
service, reaching many smaller communities 24 hours a day and offering four
times as many offices where seniors, for example, can get in-person service. It
means faster, more efficient service where people using automated telephone
service can get help without leaving home and where Canadians can access new
products, such as self-service kiosks in community centres. Already, the time it
takes to process a UI claim and an Old Age Security claim has been lessened
This bill expands this vision of integrated service to Canadians to include
"single window" offices working with provincial agencies, local
governments, community groups and the private sector. For example, in Edmonton,
Alberta, Human Resources Development Canada has opened an integrated office with
Alberta Family and Social Services and Alberta Advanced Education and Career
Development. Clients coming in the door are no longer shunted from one program
to another, or office, or building. They do not have to worry about which
government or which department they need. There is one point of contact. This is
something for which many of us have asked for many years in order to eliminate
the duplication in government services.
In Huron, Ontario, Human Resources Development Canada has formed a new
coalition with the provincial Ministry of Community and Social Services, the
Huron County Social Services, the Municipal Employment Program and the Huron
Employment Liaison Program. Instead of all of these agencies operating their own
isolated offices, they are working together to provide more services which are
improved, integrated and more affordable.
In Coaticook, Quebec, the department has formed a new, single window with all
of the major socio-economic partners - the Chamber of Commerce, the Corporation
du développement économique de la région de Coaticook, the Société d'Aide
au Développement Communautaire, the Société d'aide aux jeunes entrepreneurs,
the Table agroalimentaire and the Centred'emploi - all working together to
address common problems and stimulate economic development. This is what the new
department is doing, and that is why this bill is so important.
The framework is particularly important, too, with regard to labour issues.
As you know, while Bill C-11 integrates the former Department of Labour into
Human Resources Development, we continue to have a separate Minister of Labour
representing the concerns of working people across Canada. One of the minister's
main responsibilities is the Canada Labour Code. The code governs industrial
relations, occupational safety and health and labour standards in areas under
federal jurisdiction. The code is an important part of Canada's economic fabric.
It affects the working lives of 1 million Canadians. It applies to train
engineers, longshoremen, truckers, grain handlers, telephone operators and bank
employees. All of these people turn to us for stable industrial relations, for
safety and health, and for fair and productive work places.
The Minister of Labour must also answer for other statutes. One of these is
the Canadian Centre for Occupational Health and Safety Act. The centre produces
and disseminates occupational health and safety information and helps to protect
the lives and health of Canadian workers. There are many other statutes which
fall under the minister's responsibility, acts which deal with security,
justice, equity and other matters. These matters include the Canadian union
movement, labour management relations, conditions in the workplace and equity
Bill C-11 ensures that the minister can work full time on these critical
issues. Everything the Minister of Labour needs to do the job can be found
within the framework of this restructured organization. This keeps costs down
without depriving the Minister of Labour of services he needs.
The minister is working to better harmonize federal occupational health and
safety legislation and regulations with those of the provinces and territories
and has also been very active on industrial relations. Last May, for example, he
appointed an industrial inquiry to study industrial relations in longshoring,
grain handling and other federally regulated industries on the West Coast. In
addition, in June, the minister established a task force to review Part I of the
Canada Labour Code, which deals with labour relations. The minister also wants
to modernize the other two parts of the code. Work is continuing in that regard.
Finally, the minister is reviewing the labour program itself with a view to
making it work better and be more cost effective, while, at the same time,
working on a North American agreement on labour cooperation.
The new department, which integrates the minister's responsibilities within a
single social policy framework, has energized the labour program. There has been
a healthy continuity between the new and the old. We have seen how an integrated
approach can lead to improvements in the economic and social well-being of
All of these issues in human resources are related and all of them should be
considered within a single, holistic framework, and that is exactly what this
bill does. It saves money and it offers a cohesive vision of Canada's human
resource needs. At a time when technology changes almost everything we do, this,
I submit, is the kind of measure that we need.
The existing arrangements set up through orders in council are legitimate as
transitional arrangements, but, in the end, I am sure all of us would prefer to
see the trail of statutory powers put aside and one coherent piece of
legislation put in place. That is the purpose of Bill C-11.
It is important to ensure that as the department continues to move forward
with new ways of helping Canadians, there is a solid foundation to build on.
Bill C-11 provides that foundation and I hope that we pass it very quickly.
Hon. Noël A. Kinsella: Senator, does this new department have as one
of its units the secretariat on the status of women? In other word, does the
Advisory Council on the Status of Women report to the minister who heads that
Senator Rompkey: Honourable senators, I have not been advised that
that is a part of the new department. I stand to be corrected. I can certainly
double check that, but I have not been advised that it is part of this new
Senator Kinsella: Honourable senators, my point is that the mission of
the new machinery of government is to give focus to human resources development
in Canada in a manner that is sensitive and includes the participation of all
Canadians. As we know, unfair pay practices continues to be one example of
inequality. If responsibility for the status of women has been moved to that
ministry, that would be very congruent. I will wait for committee study to
explore that question further.
We are dealing here with machinery-of-government legislation. Status of women
has been bounced around and I cannot remember whether it has been moved to Human
Resources Development or to Heritage Canada.
My other question has to do with the funding of post-secondary education,
which in effect is the administrative responsibility for the management of the
Canada student loan program. Has that been moved to Human Resources Development
from Heritage Canada?
Senator Rompkey: It is my understanding that it has.
The point with regard to status of women is well taken and is something we
should pursue. My understanding is that it is not part of this bill.
Hon. Mabel M. DeWare: Honourable senators, I should like to thank
Senator Rompkey for his overview of the new Department of Human Resources
Development, and just add a few remarks.
Bill C-11 outlines the powers, functions and duties of the Minister of Human
Resources Development. These concern matters under federal jurisdiction
regarding human resources development that have not been assigned to another
department. Under this legislation, the Minister of Labour may be appointed. The
minister will be responsible for federal labour matters not assigned to another
department. If a labour minister is not appointed, the relevant duties are to be
carried out by the Minister of Human Resources Development.
Bill C-11 also allows cabinet to appoint a Deputy Minister of Human Resources
Development. In addition, there may be one or more associate deputy ministers,
each with the rank and status of the deputy head of a department.
The cabinet may designate either the Deputy Minister of Human Resources
Development or one of the associate deputy ministers to be Deputy Minister of
Subject to conditions set by the Treasury Board, the minister may fix fees in
exactly the same manner as the new Department of Health, when it provides
services or facilities, products, rights and privileges, and regulatory
processes or approvals. The minister must consult those affected by these fees,
and the fees must be published in the Canada Gazette. They may not exceed
the cost of providing these services. The fees may be reviewed as a statutory
instrument by the parliamentary committee.
The legislation continues the National Council on Welfare within its new
department, but reduces the maximum numbers of the members from 21 to 14. It
also provides that while the council may hire staff, these employees do not
automatically become public servants.
The Canadian Employment and Immigration Commission will continue but will
become the Canadian Employment and Insurance Commission. Previously, the
employees of this commission were considered officers. If Bill C-11 is passed,
these people will become employees of the department. Several clauses also allow
work to be carried out by persons other than employees of the department.
The Program for Older Worker Adjustment has its legislative mandate in the
Department of Labour Act. The program is continued under the new act. However,
the minister will no longer need cabinet approval for agreements made under that
Bill C-18 should be referred to committee for a more thorough review. I am
sure that it will be an interesting review, because there is a lot to be
considered under this bill.
Honourable senators, I agree that this bill should be sent to committee.
Hon. Michael Kirby: Honourable senators, I move second reading of Bill
C-28, respecting certain agreements concerning the redevelopment and operation
of Terminals 1 and 2 at Lester B. Pearson International Airport.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators,
I should like to raise a point of order. The purpose of raising this point of
order lies in the fact that while Bill C-28 is similar to Bill C-22, which was
introduced in the House of Commons over two years ago, circumstances surrounding
its introduction last week in the Senate are totally different from the ones
which existed when Bill C-22 was first read in the other place in the spring of
1994. Consequently, proceeding with this bill is manifestly out of order for a
number of reasons.
Honourable senators are aware that, after argument, the Ontario Court decided
that the Pearson agreements referred to in Bill C-22, and again in Bill C-28,
were valid, and that they had been breached by the Government of Canada.
Judgment in this regard was rendered against the Government of Canada in
January, 1995, by the Honourable Mr. Justice Borins of the Ontario Court General
Division. A trial for damages was authorized by the same court. The Court of
Appeal dismissed the appeal of the government to this judgment, thereby
confirming the judgment of the lower court.
By not asking leave to appeal to the Supreme Court, the government clearly
accepted the judgment and admitted breach of contract, thereby recognizing the
validity of the agreements. It is now a defendant in an action for damages, the
trial having commenced on February 12, 1996, with the Honourable Donna Haley of
the Ontario Court General Division as presiding judge, and the trial is
Honourable senators, to my knowledge, nowhere in the history of the
Parliament of Canada will you find legislation which annuls a valid court
judgment. I cannot believe that any member of this chamber of the Parliament of
Canada, whatever his or her feelings on the purpose and intent of Bill C-28, is
willing to be a party to creating such dangerous precedents, which is exactly
what the Senate will be doing should debate on second reading be allowed to
proceed. This is my major argument, to which I will return.
However, there are other important representations I also wish to submit.
Because a trial is under way, it would be improper for the Parliament of Canada
to discuss any matter before the court. It should only do so after a verdict has
been rendered. Bill C-28 is specific in its treatment of the Pearson agreements
and any damages claimed as a result of their cancellation, subjects which have
been before the Ontario Court since mid-February.
During committee hearings on Bill C-22, a number of references were made on
the right of Parliament to amend a court verdict, including citations from the
work of Peter Hogg. However, amending a court verdict is far removed from
annulling a valid court judgment. Indeed, I cannot find a single occasion when
Parliament has not only been called on to pass legislation annulling matters
before the courts - and in which the government is one of the litigants - but
also has been asked to annul a judgment the government had previously accepted
in its decision, in this case not to initiate an appeal to the Supreme Court of
Canada. As a matter of fact, I cannot find any legislation of the Parliament of
Canada amending a court verdict.
Bill C-28 does not ask the legislator to wait for a verdict; it provides for
the contracts being declared null and void - contracts presently recognized by
the Government of Canada. You will find that provision in clause 3. Furthermore,
it provides for no action in damages, which is already accepted through a
judgment allowing an action in damages. The bill now would no longer allow that,
and sets aside proceedings which are already under way, proceedings to which the
government is party, and to which the government accepted to be party by not
appealing the judgment of the court of appeal.
These circumstances did not exist in 1994 when Bill C-22 was first
introduced. However, they do now, as Bill C-28 is introduced. While the two
bills may be similar, or even identical, the conditions under which they were
presented are totally different. It is in light of the current conditions that
the point of order is to be assessed.
What the government is doing, or wants to do with Bill C-28, is to interfere
in a court action in which it is a defendant, and substitute itself for the
court, thereby challenging the independence and intervening in the proper
function of the judiciary. With Bill C-28, the Government of Canada is asking
the Parliament of Canada to absolve it of a responsibility which it has already
recognized following two judgments. Bill C-28 would do this by declaring null
and void agreements which the government, by its own admission, has agreed and
admits that it has breached, and also would do this by withdrawing access to the
courts and its remedies to a plaintiff when access has already been granted
under the constitutional guarantee of the rule of law, and by the acceptance of
the judgment by the Government of Canada.
In other words, with Bill C-28, the government is thumbing its nose at the
Canadian judicial system, which is putting it mildly. It is asking Parliament,
the Parliament of Canada, to legislate where no other Parliament has ever
Honourable senators, allowing second reading of Bill C-28 to proceed would be
a gross violation of the independence of the judiciary, and a gross interference
in a judicial proceeding already under way.
For those reasons, I ask Your Honour to rule in favour of my point of order
and declare that it is not appropriate for the Senate to proceed with Bill C-28
at this time.
Honourable senators, I apologize if I have not submitted with these
representations quotations from acknowledged authorities and sources on the main
point raised, because I have yet to find any of them, if in fact they do exist.
Nor have I been able to find legislation of the Parliament of Canada annulling a
valid court judgment, or even any attempt by a government in the past in this
direction, and any debate on it. Research, which has been fairly exhaustive so
far but, I admit, not complete, indicates that the Parliament of Canada has
never engaged in such an extraordinary proceeding, and surely Your Honour is not
prepared to sanction one today, or at any time in the future.
Hon. Richard J. Stanbury: Honourable senators, I was about to say I
was amazed, but I am never amazed at the ingenuity of the opposition, and
particularly the Leader of the Opposition, to find ways to delay the processes
of the law. Their performance in the past session of delaying, for years, a
piece of legislation simply on the basis of having a majority on committee is
hardly representative of the high moral principles my friend proclaims now.
Honourable senators, the point we are dealing with here is whether we should
give second reading to a piece of legislation that has gone through the normal
processes of legislation in our Parliament. The question as to whether it is
legal and whether constitutional courts in the future will determine that this
is a proper action by Parliament is not a question that we should decide now. We
are dealing with a piece of legislation that has gone through the processes of
Parliament, is still in the processes of Parliament, will be dealt with by our
committees, and will be determined, finally, by the Senate itself.
Honourable senators, the actions of my honourable friend anticipate that this
bill will proceed to second reading. He has not mentioned this today, but he
brought a motion in the courts to have thousands of pages of documents presented
to him personally for use in the Senate committee. In my opinion that is quite
an improper motion. However, that is beside the point.
Senator Lynch-Staunton: Why raise it, then?
Senator Stanbury: Why raise it? Because it is indicative of my
honourable friend's frame of mind when he says he wants thousands of pages of
documents made available to him. What other purpose could there be than to deal
with them in the Standing Senate Committee on Legal and Constitutional Affairs
when this matter comes before it, after we have given second reading to the
Honourable senators, there is no logic to what my friend says. The answers to
the questions he raises will be determined after discussion in the Senate
committee, the proper committee under our procedure. After those answers have
been determined, the Senate will make a final decision as to whether or not to
pass the legislation.
I will not delve into legal questions. Legal questions and constitutional
questions have been all that has concerned our committee in the past in dealing
with Bill C-22. I suggest that the legal opinions we received then are
completely contrary to what my honourable friend has said. Those legal opinions,
from the best constitutional experts, were that the government has every right
to override the decision of a court. There is no reason why a legislature, a
court of the people, cannot override a judicial court if that is determined to
be in the public interest.
Honourable senators, I simply say that we are very premature in discussing
this issue. We have now arrived at the question of second reading. We must do
that, get the bill into committee where this issue will be battled out, and then
if the Senate determines that it should not pass the bill, then it will not so
pass the bill.
Hon. John B. Stewart: Honourable senators, Senator Lynch-Staunton
makes an ingenious intervention, but it is one which I think should not delay us
very long. He has advanced the proposition that circumstances alter the
authority or the jurisdiction of Parliament. If that is a valid proposition, it
opens up a Pandora's box. I really do not believe that he would assert it
In any case, let us ask this question: What are the circumstances which
Senator Lynch-Staunton says alter the authority of Parliament and the right of
Parliament to enact the proposed statute? His answer is that certain
circumstances and certain proceedings in the law courts estop Parliament. I
should have thought that Senator Lynch-Staunton would have admitted that the
Senate is not part of the court system and, similarly, that the law courts are
not part of Parliament. Surely, things have not deteriorated to the point where
the distinction between these two important parts of our constitutional
structure have been lost so that there is an interplay between what happens in
the courts and what happens in Parliament.
In any case, honourable senators, Senator Lynch-Staunton has put before us a
constitutional argument. He has every right to raise it as a constitutional
argument when the motion for second reading of the bill is under debate, but it
is not a point of order.
Honourable senators, Beauchesne's Parliamentary Rules and Forms, 6th
Edition, is painfully clear on this issue. I quote from page 97, citation 324.
The Speaker will not give a decision upon a constitutional question nor
decide a question of law, though the same may be raised on a point of order or
It may be raised, but the Speaker will not rule.
I agree that this is a constitutional argument. I think that it is an invalid
constitutional argument, but my opinion on its validity or invalidity is
irrelevant to the nature of the argument. It is a constitutional argument, and I
say it is invalid.
In any case, the Speaker does not rule on constitutional arguments or points
of law, only on points of order, and I think we ought not to go down this track
very long. We ought to get into the substance of the debate.
Hon. Pierre Claude Nolin: Honourable senators, if that were so clear,
the government could introduce legislation to prevent the courts from exercising
their powers. I imagine the government can quote precedents to us. We tried to
find one and could not.
If it is so clear that the government is in its full right in introducing
such legislation to impeach the tribunal - even more, to say to the tribunal
that they have decided something and that it is wrong - you must have a
precedent. We tried to find one; we are not able to find any. If you have some
precedents, show it, please.
Senator Stewart: Is that a question?
Senator Nolin: Yes.
Senator Stewart: I simply submit that the jurisdiction of the law
courts in this country is clearly defined. The jurisdiction of Parliament is
pretty well defined. It is no accident that there are not many cases where the
two collide because each respects the other's jurisdiction. I do not see how we
can raise as a point of order the fact that certain proceedings have taken place
in the courts. That is really, I suggest, a constitutional argument. It is a
constitutional argument, I submit, which would have the effect of altering the
Constitution. In any case, whatever the merits on that, this is a constitutional
argument, not a discussion on a point of order.
Senator Lynch-Staunton: I had hoped that our friends opposite would
have replied to the main argument. The main argument has nothing to do with the
constitutionality of the bill, nothing to do with the content of the bill. It
deals with procedure - not the law or the Constitution, but with the proper
Is it proper for the Senate of Canada to proceed with a bill that, in fact,
is a direct challenge to two court judgments and, if passed, would void those
judgments? Is it proper for us to proceed on that? There is no precedent.
Our friends opposite should produce precedents if they have them. We have
searched and searched, and there is no precedent that we have found of this
happening or even being attempted in the Parliament of Canada, although there
certainly have been many occasions when that could have happened.
We have heard from authorities. The authorities upon whom I have relied have
not come before our committee. They tell me that, in common law, a challenge to
a court decision by Parliament is unheard of. However, we were told before the
committee at the time of the discussion on Bill C-22 that it is possible; that
it would be constitutional and so legal for the Parliament of Canada to amend a
It was said by an expert witness - it may have been the minister or one of
his officials - that if the government was dissatisfied with an award,
Parliament could reduce it to a more acceptable price - yes, even to zero. This
would be a difficult point to argue, but that is what the experts tell us, and
in any event we have not yet reached that stage. We are being asked here to
proceed without even waiting for the verdict. We are being asked to intervene
not only in the case which is proceeding now -
Senator Berntson: The government accepted it.
Senator Lynch-Staunton: - but a case which the government accepted to
enter, in which it is an active party, and where it is giving an active defence
of its position.
It is hard for us to accept the responsibility of discussing a law which, in
effect, is telling the court, once the debate starts: Careful, someone is
keeping an eye on you. Your proceedings may be challenged. Your proceedings may
be affected because, in fact, the Parliament of Canada is slowly coming in to
interfere in what you should be doing independent of the Parliament of Canada.
This is not a question of the Constitution. It is not a question of law as
such. It is a question of procedure. It is a question of proceeding with this
bill despite the facts as I have enumerated them; and despite the two court
judgments in particular. That is the main argument. The added argument is that
the matters in the bill are before the courts. I maintain it would be highly
improper, irregular and unprecedented for Parliament to proceed under those
Senator Stanbury: Honourable senators, my friend might have had some
merit to his argument, I suppose, if he or his Conservative colleagues in the
House of Commons had raised this question when the bill was being presented.
Senator Berntson: When it was re-plugged in?
Senator Stanbury: It was presented in the House of Commons.
Senator Berntson: Circumstances have changed. This thing did not go
through the House of Commons.
Senator Stanbury: Please, if you will. Bill C-28 was introduced in the
House of Commons.
Senator Berntson: At what stage?
Senator Stanbury: It was approved to the stage that brings it to us
here. It has passed through that much of parliamentary process. If Parliament
was so wrong in dealing with this matter because it was before the courts, then
that should have been dealt with by your colleagues in the House of Commons.
Is there any precedent for a bill which has passed the House of Commons and
has received first reading here -
Senator Berntson: Passed the House of Commons?
Senator Stanbury: - to be refused by the Senate, to be even considered
in committee? You talk about precedents. I have not heard a single precedent
from that side of the house about what you are proposing. As far as I am
concerned, this is not a point of order; it is an invitation to His Honour the
Speaker to unilaterally destroy parliamentary tradition and constitutional
conventions that have been in place worldwide for centuries. You cannot find a
Senator Berntson: Worldwide for centuries?
Senator Stanbury: You cannot find a precedent to tell the Senate that
it may throw out or refuse second reading for a bill based on the kind of
reasoning suggested by the Leader of the Opposition after that same bill has
already received the approval of one of the Houses of Parliament.
Senator Lynch-Staunton: Let us be careful how we explain the procedure
in the House of Commons. Bill C-22 came back as Bill C-28 under a motion of
exemption which allowed the government to bring back certain public bills,
certain private bills, at whatever stage they were at the time of prorogation of
the First Session of this Parliament.
Senator Berntson: Within 30 sitting days.
Senator Lynch-Staunton: Within 30 sitting days, they had the right to
do that. That did not allow a debate on this bill because this bill had already
been passed by the House of Commons; a vote had been taken; third reading had
taken place. Therefore, it was impossible to open a debate because the motion is
specific: that the bill must be in the same form, and accepted at the same stage
that it had reached at the time of prorogation.
As a matter of fact, Mr. Gouk, a Reform member, got up to ask a question, and
he was ruled out of order.
There was no way that the House of Commons could debate this bill. If there
had been a way, then the government itself would have been tempted, I would
hope, to bring in amendments which it brought earlier to the Senate on Bill
C-22, and let the house debate the amendments. Somehow they realized they could
not do that, because the bill was at the stage where it could not be reopened.
The vote had been taken on it at third reading.
I want to clarify that point. I hope His Honour the Speaker will not be
swayed by the over-imagination of our colleagues opposite. This is a fundamental
issue. There are no precedents to it which can be quoted on the other side -
certainly none that we have found where the Parliament of Canada is being asked
to intervene directly to contradict a decision taken by a court in one of our
provinces. That is a key issue.
Senator Stewart: Honourable senators, if I may, just to help the
house, I have found another passage which I think might be useful in Erskine
May Parliamentary Practice, 21st Edition, at page 90, under the heading,
"Right to exclusive cognisance of proceedings."
The law declared in the Bill of Rights excludes all outside interference
with the proceedings of either House. It encapsulates (without necessarily
limiting) many historical developments sketched in chapter 5. These include
the judicial pre-eminence of the High Court of Parliament, the concern that
Members should not be tried or punished by any inferior court, the notion of
each House as a court, and the claim to freedom of speech in the form both of
the collective right of the two Houses to discuss subjects of their own desire
without reference to the Monarch, and the right of the individual Member to
participate freely in debate.
I will skip two or three sentences concerning peers and so on.
Nevertheless, the right of both Houses to be sole judge of the lawfulness
of their own proceedings, or to settle-and depart from-their own codes of
procedure is fully established. This is equally the case whether a House is
dealing with a matter which is finally decided by its sole authority, such as
an order or resolution, or whether, like a bill, it is the joint concern of
both Houses. This holds good even where the procedure of a House or the right
of its Members or officers to take part in its proceedings depends on statute.
For such purposes, the House can, `practically change or practically
supersede the law'.
It goes on to give an instance. I think that might be useful in deciding
whether or not this is indeed a genuine point of order.
Senator Lynch-Staunton: Honourable senators, we are not talking here
about superseding the law; we are talking about negating a valid court judgment.
That is not the law. That is a decision of the judiciary. It is not the
interpretation of a law given by a court, with which Parliament then may
disagree and change to have it fit its original intent, which is perfectly
proper. In those cases, Parliament is supreme over the courts because Parliament
must have the last word in the laws and how it intends them. If the courts
interpret them differently from Parliament's intentions, then of course
Parliament has full right and responsibility to refine them as it sees fit,
although the Charter of Rights limits Parliament's powers even in that regard.
However, the question here is not a question of law. It is a question of
respect for the judiciary which will be completely disregarded by proceeding
with Bill C-28.
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable
senators, I think we should emphasize that at the moment we are debating the
principle of the bill -
Senator Berntson: We are on a point of order.
Senator Graham: Senator Stanbury has raised the obvious question: Why
was a point of order not raised in the House of Commons? All the points made
today by Senator Lynch-Staunton could have been made in the House of Commons.
The situation was exactly the same; yet not a single member of the other place
Senator MacDonald: The motion was not debated.
Senator Graham: The principle of Bill C-28 is to set aside the Pearson
Airport Agreements and to limit the government's exposure to damages. This is
the principle that we are being asked to approve at second reading. The details
of how that principle is put into effect are what our committees are normally
empowered to examine. That is their work. When Bill C-22 was before the Senate,
the government proposed amendments that would have recognized that the
agreements were valid and that they then expired, so even under my friend
Senator Lynch-Staunton's criteria, that amendment would have met his objection.
I suggest that we proceed with second reading, allow the debate to continue
and then send this bill to committee, where it belongs, and examine the various
proposals that may come before the committee.
To follow further on Senator Stanbury's point, it is known that Senator
Lynch-Staunton filed an affidavit last week in court swearing that senators
needed certain documents in order to properly consider Bill C-28, but today he
is proposing that senators not be allowed to consider the bill. I believe that
is remarkably inconsistent.
Senator Berntson: Since you are so learned in the law.
Senator Lynch-Staunton: There is no contradiction in asking for
information on proposed legislation and suggesting, at the time the legislation
is introduced, that it is not proper to bring it in. "At the proper
time" could be whenever this case is over with or whenever circumstances
are more amenable, and the government will bring in a bill similar to this one.
As long as there is information out there which will help us assess legislation
similar to this, or its successor, we certainly have a right to it and are
entitled to ask for it. Whether we will get it is something else. There is no
The argument today is not regarding a request to the courts; it is not on the
merits of the bill; it is not on the content of the bill, except as it refers to
matters which are before the courts, matters which the Government of Canada has
accepted to have argued before the courts. The same government is now saying to
Parliament, "By your authority, if you have it, annul proceedings to which
we have agreed to be a party." It is not a question of whether we think
damages should be awarded; it is not a question of whether we think the
consortium is right or the contract should have been cancelled; it is a question
of the direct intervention of the Parliament of Canada in judgments which have
been accepted by the government. At the same time the Government of Canada,
which has accepted and is proceeding with matters in Toronto, is acting in
Toronto to defend the case, it is saying to Parliament, "Bail us out by
cancelling that case and cancelling the judgment authorizing that case which we
Senator Stanbury: Honourable senators, I do not want to carry on this
debate because I do not think it is worthy of being carried on at length, but I
would like to address the point that Senator Lynch-Staunton has made. The court
decision was that the contracts had been breached. The legislation does not deal
with the question of whether the contracts have been breached. The legislation
deals with how the contractors are to be compensated, if they are to be
compensated. The ongoing action has to do with the damages. Those are two
entirely separate and parallel matters. They do not conflict with each other at
all. I think the honourable senator has gone off on the suggestion that the
legislation is directly contrary to the court and that, I believe, is not so.
Senator Lynch-Staunton: Honourable senators, I do not want to prolong
this discussion either, but I have to get up and correct what Senator Stanbury
has said. The bill makes direct reference to the contracts. It does not say,
"You have contracts there, we are declaring them invalid, we are cancelling
them, and then damages will be set under our own conditions." The bill
says, in clause 3:
They being the Pearson agreements which are the subject of debate in the
court in Toronto,
... are hereby declared not to have come into force and to have no legal
Now, whether or not we agree with that proposition is one thing, which is not
the subject of my intervention today. What I am saying is that Parliament is
being asked to declare invalid contracts which the government has recognized as
being valid in Toronto, following two court judgments and its refusal to appeal
the Court of Appeal judgment to the Supreme Court of Canada. So it is engaging
already in recognition of the agreements by its action in the Toronto courts. It
is giving conditions on how damages can be awarded. It has accepted in Toronto
that the damages be assessed by a third party, without condition, under the
normal workings of the court. These are the issues. Instead of using the same
judicial system to have the agreements cancelled or amended, which is the proper
way of proceeding, the government is saying, "Well, we lost in the courts.
Let us find a way for Parliament to intervene and give us a decision which the
courts refused to give." I say, and I maintain, that it is, at the least,
improper, highly irregular, and we should never be a party to such an
Hon. Anne C. Cools: Honourable senators, I have been listening
carefully to the remarks made by Senator Lynch-Staunton. It seems to me that for
every assertion he makes, the opposite can be argued in favour of the actions of
the government and Parliament.
I would have liked to have had the opportunity to prepare a little more for
this debate. The subject-matter is very difficult, complex, and extremely
timely. However, speaking extemporaneously, to build on the arguments raised by
Senator Stewart, the source of the proposition which he cited from Erskine May
is the Bill of Rights of 1689. If I am not mistaken, it is Article IX of the
Bill of Rights of 1689. Article IX essentially says that no proceedings in
Parliament may be questioned anywhere else. The exact language of Article IX is,
"...Proceedings in Parliament ought not to be impeached or questioned
in any Court or Place out of Parliament.
To follow on Senator Lynch-Staunton's logic, if one of either the courts or
Parliament is behaving inappropriately, it is the courts that are inappropriate.
I suggest that not only are the government's actions proper but that they are
appropriate and necessary.
If Senator Lynch-Staunton is concerned about decisions in the courts, it
seems to me that we should speed up our process in the Senate so that the courts
will quite clearly understand that they should not be ruling or passing
judgments on subject-matter that is before us. In other words, we should pass
Bill C-28 quickly.
There is no doubt that there we have a problem in debate. The problem is not
within the Speaker's jurisdiction but within the adjudication of the Senate as a
whole. I understand that Senator Lynch-Staunton is asking His Honour the Speaker
to adjudicate. However, the adjudication of this issue is a matter which
concerns us, the Senate as a whole, properly and solely, as Senator Stewart has
Honourable senators, the real question is whether or not we wish to pass Bill
C-28. There is no doubt that Parliament has the powers. Obviously, the
Department of Justice knows Parliament's powers, for the powers are contained in
Bill C-28. The question before us is whether or not we want to pass Bill C-28.
This is not a point of order. This is a point of healthy debate. It is the
debate on the consideration of the bill itself, and whether we want to pass it.
I understand very clearly that Bill C-28 extinguishes all rights at common law.
I understand that perfectly well. I also agree with it.
If one of the two institutions, the courts and Parliament, in what is called
the constitutional coordinate comity between the two of them, is acting
irregularly and in an unusual way, it is the courts which are doing so in
entertaining these lawsuits when the subject-matter of Bill C-28 is before
Hon. Pierre Claude Nolin: Why did the government not make that
argument to the Supreme Court? It has all of the powers necessary to go to the
Supreme Court, but did not do so.
Senator Cools: Honourable senators, that is because Parliament is the
supreme authority of the country. It is the sovereign authority and it has the
right to pass laws, including Bill C-28. Section 18 of the BNA Act 1867 gives
Parliament those powers. The powers to which Senator Stewart referred, which
come from Article IX of the Bill of Rights 1689, are received into Canada by
section 18 of the BNA Act 1867.
It is not proper or fitting that any one of our membership of the Senate
should constantly devalue, demean or lessen the powers of Parliament, and of the
Senate. We have the power. There is no doubt about that. Honourable senators,
let us pass Bill C-28.
The Hon. the Speaker: Honourable senators, I have allowed a very
extensive debate on this matter. If there are any speakers who have not spoken
but wish to do so, I am prepared to hear from them. I have received a good deal
of advice, which I appreciate.
Hon. Eric Arthur Berntson: Honourable senators, when this debate
began, I was convinced that there was nothing terribly complicated about it. It
seems to me that it is still not particularly complicated, in spite of the fact
we have had some attempt to confuse the issue, particularly by my good friend
The facts are that there was a bill brought before the Parliament of Canada
which sought to deem certain agreements to have never been in existence.
Parliament has the right to do that. The circumstance which has changed since
then is that the Government of Canada has accepted that the agreements did, in
fact, exist and that they did, in fact, breach those agreements. Twice now, the
court has said that that is, in fact, the case. The Government of Canada lost
its appeal and chose not to appeal to the Supreme Court so, as is pointed out by
my colleague Senator Lynch-Staunton, the government has accepted that to be the
If the government has accepted that the agreements did exist and that it is
in breach of those agreements, how can it then bring in an identical bill and
expect us to say that this is procedurally correct? This is not a constitutional
question or a legal question. This is clearly a question of procedure. It is
absolutely unprecedented for such an action to take place.
However, perhaps we have gone a little overboard in making complex this
simple, straightforward matter. Perhaps we should all take a little time to
study the consequences and look for citations to support the position of the
government on this matter. I think that, after due consideration, His Honour the
Speaker will find that this action is, in fact, procedurally incorrect and that
the point of order is well founded.
The Hon. the Speaker: Honourable senators, if no other senator wishes
to speak, I wish to thank all those who participated in this very interesting
exchange. I will take the matter under advisement and report as early as I can.
Resuming debate on the motion of the Honourable Senator Bacon, seconded by
the Honourable Senator Rompkey, P.C., for an Address to His Excellency the
Governor General in reply to his speech at the Opening of the Second Session
of the Thirty-fifth Parliament.-(6th day of resuming debate).
Hon. Richard J. Doyle: Honourable senators, the English have St.
George, the Irish, St. Patrick. St. Dismas is the Patron Saint of Thieves.
Although we have limited knowledge of the way in which his natal day is
observed, celebrated, committed or perpetrated, we are certain that the umbrella
of his patronage is wide enough to shelter all manner of people in the
Department of National Revenue.
On this, the very last day to avoid punishment for the payment of ancient and
acknowledged taxes, it would seem appropriate to pay tribute - or at least
attach blame - to those new geniuses in the service of Revenue Canada who go on
collecting money while enabling our finance ministers to say, without malice or
apology, "We do all this without increasing your taxes."
Those who have pondered the great budget of March 6 will remember the
throat-clutching, gut-wrenching pledge from Mr. Martin: "We are not raising
corporate taxes; we are not raising personal taxes; in fact, we are not raising
How can it be that governments can provide all kinds of electable goodies
without betraying the fact that we, the taxpayers, will get the bill? The
answer, of course, lies with the new revenuers - the task force of St. Dismas -
to come up with the dues, surcharges, punctured exclusions, add-ons, user fees,
abstracts, codicils, excises, impositions, assessments, columns opposite, and
assorted vulgarities that can be introduced while ministers softly sing,
"My, how the money rolls in."
Honourable senators, do you not agree that it is particularly appropriate on
April 30 to salute this government for its unequalled, unsurpassed and
unscrupulous use of sources, other than personal and corporate, to provide the
Each of us could single out the add-on of her or his choice. Never mentioned
in a Throne Speech, these charges are not taxes, of course, but little levies
that are, as the poet says, "Our own suffering and pain."
My own choice of the newest batch is the special non-tax to be added
generously to the price of audio tapes - those innocent little cassettes on
which we may hoard our own musicianship or our own flawed re-recording of 33s on
their way to the church bazaar.
Last week, we were told by the commanders in chief of Canadian Heritage that
an undisclosed sum - probably between 35 and 85 cents in addition to GST - would
be added to the charge for each blank tape in a grand gesture to save Canadian
culture. The bite will be tucked into otherwise useful revisions of the
Copyright Act. How the government intends to funnel such funds to poor poets and
needy musicians is not explained. Nor is there any assurance that slices of the
collection will not go to English rock stars, the three tenors and the Russian
Army Chorus. Nor have we been told that the new extraction of money from one
thing because it might lead to another has gone about as far as it will go.
What about saving bankrupt bakeries by imposing levies on flour, yeast and
sesame seed? Why not underwrite subways and elevated railways with a surtax on
gasoline? Has the time not come to add-on to the price of Band-Aids for
thoughtless efficacy in curing the infections that are the bread and butter of
our starving hospitals? The potential for a condom service fee is mind boggling.
Perhaps the easiest way to do away with such surcharges would be to insist
that any money collected for any special purpose be spent for that purpose and
none other. Not put in general funds to be used to save us all from whatever, as
we were told the money from surcharges for pensions would be, only to find it
lost and gone forever when we needed it - while the revenuers go marching on.
Resuming the debate on the motion of the Honourable Senator Cools, seconded
by the Honourable Senator Sparrow, for the second reading of Bill S-3, to
amend the Criminal Code (plea bargaining).-(Honourable Senator Wood).
Hon. Dalia Wood: Honourable senators, I rise to speak to the motion
for second reading of Bill S-3. I should like to express my support for the
initiative of Senator Cools.
My interest in the matter developed as I observed the trials of both Karla
Homolka and her ex-husband, Paul Bernardo. I have been reading the newspapers
and watching the news on this issue. Like many Canadians, I was shocked at the
brutality of the atrocities committed. I am also dismayed that a criminal such
as Karla Homolka could have received such a light sentence through plea
bargaining. I wholeheartedly support Bill S-3, as it would make these plea
bargains reviewable by the courts in certain circumstances.
The purpose of the legislation is clear. As Senator Phillips said in the
speech he presented in this chamber on April 24, 1996, the bill seeks to give
the courts the power to set aside a plea bargain and impose a sentence which
would be more fitting to the crime that had been committed if it was found that
the individual had not been forthcoming or misrepresented facts during the plea
The Karla Homolka case demonstrates that there are some serious concerns with
the administration of plea bargaining in this country. Not only did she receive
a very light sentence for the crimes she committed, but she was only charged
with two counts of manslaughter, despite the fact that three people are dead.
As Senator Cools pointed out in her second reading speech in this chamber on
March 19, the facts concerning the death of Homolka's sister Tammy were read
into the record without charges having been laid. The reasons for this are known
only to those involved in the inner workings of the deal. Furthermore, the Crown
prosecutor clearly admitted that he had enough evidence to charge her with
murder, but because of prosecutorial discretion, he only charged her with
manslaughter. The prosecutors charged her husband, Paul Bernardo, with multiple
first-degree and second-degree murder and several other sexual assault charges.
Honourable senators, Dr. Malcolm, one of the psychiatrists who examined Karla
Homolka, was quoted by Mr. Justice Kovacs in his reasons on sentencing. In Dr.
Karla shows no sign of any psychotic disorder.
Homolka's craftiness and deceptiveness are even more frightening because,
since she exhibits no psychotic disorder, one can say she is a normal
individual! This "normal person" is more sinister, more evil, than
many serving life sentences for murder at this very moment.
Mr. Justice Kovacs, in his comments at the sentencing of Karla Homolka, noted
that she had cooperated with police, although I have to question the extent of
the cooperation she offered the police. The Jane Doe incident only surfaced on
December 6, 1993, exactly five months after she pleaded guilty to two charges of
manslaughter and was sentenced to 12 years. That is when she disclosed her
recollection of a sexual assault. Yet, on February 23, 1993, a short video had
been found at 57 Bayview Drive, a video showing Karla Homolka engaged in the
sexual assault of a young girl who turned out to be Jane Doe.
On May 16, 1993, Homolka was shown a photograph during the cautioned
statement she was required to give under the terms of the resolution agreement.
She was obviously concerned when she saw it. She said she was uncertain about
who the other person was and she could not identify her from the photograph. She
asked if there was another picture. She was not told that a video which showed
her conduct over the span of just over a minute and a half existed. Instead, she
was told by Sergeant Bob Gillies that he would like to wait until he got better
quality photographs. The matter was left there. Perhaps if they had pursued this
matter, Karla Homolka might have been charged with the sexual assault of Jane
Doe and given a proper sentence for the commission of this offence.
The retired Mr. Justice Patrick Galligan, in his report entitled "Report
to the Attorney General of Ontario on Certain Matters Relating to Karla
Homolka" delivered to Charles Harnick on March 15, 1996, refers to this
event. He was tentatively of the view that the June 7, 1991 assault was not
covered by the May 14 resolution agreement.
Honourable senators, Mary Hall, who was the head Crown attorney in
Scarborough at the time, and Chief Constable Grant Waddell both agreed that the
videotapes clearly demonstrated that Karla Homolka participated in a serious
assault against this young girl and that she should be prosecuted for it. In my
opinion, honourable senators, this very omission would have constituted a breach
of item (A)-10 of her plea bargain agreement, which reads as follows:
The statement and any subsequent statement will be a full, complete, and
truthful account regarding her knowledge and/or involvement or anyone
else's involvement in the investigations into the deaths of Leslie
Mahaffy; Kristen French; alleged rapes in Scarborough; alleged rape on
Henley Island; the death of Tammy Homolka; and any other criminal activity
she has participated in or has knowledge of.
However, in his report, Mr. Justice Galligan accepts the testimony of the
many psychologists attending to Homolka and cites Dr. Brown, who is Karla
Homolka's treating psychiatrist in Kingston. Dr. Brown states that Homolka:
...demonstrated quite clearly all the symptoms of a severe and chronic
Post-Traumatic Stress Disorder and included some memory impairment or
amnesia. This memory loss could be a result of various factors, either
singly, or, more probably in combination, and these factors include 1.
Psychological repression of events that are too painful for the individual
to bear. This is a completely unconscious defence mechanism over which the
individual has no control.
The doctor then concludes as follows:
...I am of the opinion that Karla has been consistently truthful in her
recollections of past events in this case. She continues to show a natural
concern about the areas for which she has amnesia....She continues to have no
memory for her own involvement with Jane Doe, and this is consistent with her
participation having occurred against her will and under the empowered
direction of her ex-husband.
Honourable senators, one must wonder if such "cooperation" was
motivated by pure and simple self-preservation or a willingness to see justice
done, as the plea bargain dealmakers would have us think. We know that she is
very bright. We know she had escaped detection for a long time. The videos
played at Paul Bernardo's trial show he and Karla Homolka laughing at the
police, who were unable to capture them. From where I stand, I see only
self-interest at work here.
Honourable senators, it causes me some concern that the administration of
justice and the imposition of a fair and equitable sentence in certain cases
rest solely on prosecutorial discretion, especially when judges defer to such
discretion in these sorts of extreme circumstances, even when the plea bargain
agreement specifically makes reference to the judge's capacity to refuse to
adhere to such an agreement. In Homolka's case, this capacity is expressed in
clause (D)-9 of the plea bargain, which reads as follows:
A refusal by a judge to accept the charges upon which pleas are to be
entered, or the proposed sentences, will result in a trial being held on
whatever charges the police and the Crown deem appropriate....
This case was so unusual that one would have thought that more judicial
scrutiny and examination of the evidence would have been called for.
Senator Phillips raised the fact that Mr. Justice Kovacs noted that the Crown
asserted that Homolka had not personally inflicted the deaths of the victims -
that Bernardo was the killer. At the Bernardo trial, no evidence was brought
forward to prove that Karla Homolka did not "personally inflict the
deaths" of those three young girls. If I remember correctly, even the
notorious videotapes did not reveal who committed the murders. To this day, the
trial has not solidly identified the murderer. Mr. Justice Galligan makes this
point in his report. Only Homolka and Bernardo actually know who did it.
Honourable senators, I have always personally wondered why the police and the
Crown have readily accepted Karla Homolka's version of the facts instead of Paul
Bernardo's when there was no clear-cut evidence as to who actually murdered
I should like also to inquire why it was in the public interest to lay
charges of manslaughter in this case if there was evidence to support charges of
murder. I do not know how or by whom the public interest is determined. However,
I can tell you that the public strongly disagrees that this plea bargain deal
was in the public interest.
Senator Cools has informed me that as a result of a single article printed in
The Edmonton Sun this month, she received well over 100 telephone calls
requesting copies of Bill S-3 and copies of a petition which calls for an
inquiry into the whole affair.
Honourable senators, in the case of this plea bargain, and I am sure in many
other instances that have not yet come to the surface, prosecutorial discretion
has resulted in a miscarriage of justice. The plea bargaining process was
conceived to help with the administration of justice in this country.
In his report, Mr. Justice Galligan discussed the plea bargaining process. He
quotes the case of Chan Wai-Keung v. the Queen, a judgment of the Privy
It has been recognized for centuries that the practice of allowing one
co-defendant to "turn Queen's evidence" and obtain an immunity from
further process by giving evidence against another was a powerful weapon for
bringing criminals to justice, and although this practice "has been
distasteful for at least 300 years to judges, lawyers and members of the
public", and although it brings with it an obvious risk that the
defendant will give false evidence under this "most powerful
inducement", the same very experienced court which so stigmatized this
practice was willing to accept that it was in accordance with the law.
The logic of this practice, which places the interest of the public in the
detection and punishment of crime above the risk which must always exists where
a witness gives evidence for the prosecution, in the hope that he will obtain a
benefit thereby, must also apply to situations where "the powerful
inducement" takes the shape not of a promised immunity from prosecution,
but of the expectation that it will be granted the "discount" from a
sentence which the courts accord to those who give evidence against their
co-defendants. It is this distastefulness which commands our attention.
Honourable senators, I agree that such plea bargain agreements are necessary.
However, I am concerned that the determination of the public interest rests
solely on prosecutorial discretion, a discretion that is exercised by private
Parliament must play an active role in assuring the Canadian public that
higher authorities watch these proceedings, and that the errors made will be
corrected. Justice itself is at risk when one person's crime is overlooked in
exchange for cooperation in the conviction of another because that offender has
entered into the agreement with an agenda of their own. Parliament should not
reward individuals for lying or misrepresenting facts.
Bill S-3 provides us with a mechanism whereby a balance could be struck
between the preservation of the public interest and the efficient administration
I would like to thank Senator Cools for her leadership in this matter.
Hon. M. Lorne Bonnell rose pursuant to notice of Tuesday, April 23, 1996:
That he will call the attention of the Senate to the serious state of
post-secondary education in Canada.
He said: Honourable senators, in 1991, the Smith Commission of Inquiry on
Canadian University Education concluded that our universities were fundamentally
healthy and serving the country well. However, so much has happened in five
short years. Cash-strapped governments have been dramatically reducing the
direct and indirect funding to post-secondary education. The cost of tuition has
skyrocketed and student indebtedness - as high as $40,000 or more for some
students - is climbing.
Youth unemployment rates are twice the national average. Institutions, for
better or for worse, have been forced to rationalize, even privatize, programs
with little or no time to study the implications. Faculty hirings and freezes
are in effect. Academic freedom and tenure are under fire. Grants for research
and development have been cut. The list goes on.
This is not new information to many honourable senators, nor are these events
unique to just the last five years. What is different, however, is the
magnitude, conflict and compounding of these problems. Effectively, there has
been a dramatic accumulation of a number of very serious issues leading to what
I would characterize as a crisis in the future of post-secondary education in
As an example, debates over tuition have been ongoing for well over 40 years
from province to province, from school to school. Premier Joseph Smallwood once
offered free tuition to Newfoundland students attending his province's new
Memorial University. Quebec froze the price of tuition for 21 years, until 1990.
Since its founding 15 years ago, the Canadian Federation of Students has
tirelessly lobbied for a tuition-free education.
All the while, most provinces and institutions have continued to adopt
regular tuition and other fee increases. Today, however, in 1996, students are
not just faced with unusual annual tuition fee debates. The headlines are not
just about protests over fee hikes. Today, students face grave uncertainty. They
want to know if they will find a job after graduation; how they can afford to
pay off their student loans; or if their college programs will be forced to shut
down. These are just a few of the very serious issues facing students today, all
across Canada, on a regular basis.
What hope can we offer to them? For today, education is considered the means
of achieving and maintaining an innovative and productive society. As we are
well aware, Canadian colleges and universities provide more than just a general,
formal education. Our institutions provide us with quality research and
scholarship, as well as specialized training for business. They prepare men and
women for leadership roles, and they strengthen the competitive edge of our
Honourable senators, when many of us decided on our future, for some, many
years ago, a university diploma meant a guaranteed job. In fact, a university
degree basically meant a secure, lifetime career. Sadly, today, a degree or
diploma does not even guarantee you a job, let alone a career. Yet it continues
to open doors.
For our children and grandchildren, higher education is the ticket to better
employment opportunities and a higher standard of living. In fact, the
Department of Human Resources Development has estimated that just under one-half
of the jobs created in this decade will require more than 16 years of education
and training. Many Canadians now recognize the necessity for lifelong learning;
that is, the constant need for retraining and updating of job and related
All of these benefits to society, to business, and to the individual
reinforce the need for a strong, effective and purposeful post-secondary
education system in Canada in order to secure our country's international
Honourable senators, Canada's investment in education is phenomenal. From
1992 to 1993, expenditures on all levels of education and training, from
kindergarten on up, are estimated at $55.3 billion. Well over one million
Canadians were enrolled in just post-secondary education alone.
Even so, for all the human resources and billions of dollars invested in
higher education, there is a proper perspective, reinforced by the media and
other social critics, that the quality of higher education in Canada is being
eroded. Trends, such as government financial restraint, globalization and the
information highway have forced dramatic changes on the roles of universities
Ironic, honourable senators, is it not, how higher education has become so
very important to our country's economic and social future, and yet how funding
decisions continue to shun or ignore our universities and colleges, and ignore
the next generation?
Admittedly, our government has begun the very painful task of eliminating the
deficit and bringing the national debt under control. Yes, we have had to make
tough decisions, and yes, through the loss of $7 billion in provincial
transfers, post-secondary education must bear a large portion of the cuts. We
have already seen some of the effects. Ontario, for instance, has reduced
funding for universities by $400 million and allowed universities to raise
undergraduate tuition by 20 per cent. On the crest of this, tough decisions are
being made on universities and college campuses, in homes and in dormitories all
across the country. While I sympathize with the many frustrated groups that
throw up their hands in protest, I should like to offer a different perspective
for you, for I am getting a bit too old to be marching in the streets.
I believe the time has come for action - for a cross-Canada debate on the
future of post-secondary education in this country. While I am very aware that
education is the constitutional responsibility of the provinces, and while I
fully recognize and respect the jurisdiction laid out in the Constitution, this
debate is absolutely necessary. Many students, professors, organizations,
employers and general citizens are very concerned with the declining quality of
higher education, and many have offered as a solution the creation of a national
guideline for post-secondary education.
The debate over national principles of post-secondary education is as diverse
as the people involved. Some believe the goals of higher education must be
clarified before any overall national strategy can succeed. Others in the debate
promote a strong centralized agenda so that Canada is able to keep pace with the
international trends as well as labour and marketplace demands. Many have argued
for greater financial support from the federal government, all the while knowing
education is exclusively within the provincial jurisdiction.
While the nature of the specific proposals for a national strategy may differ
somewhat from one advocate to the next, the consensus around the notion is
clear: Something needs to be done, and we as a country are in danger of losing
out in trade, employment, investment, and other opportunities.
Honourable senators, let me finish by outlining some suggested national
principles for post-secondary education. These ideas are not new, nor can I say
they are all mine, but they certainly can be used to ignite the debate. As you
know, I have long been a supporter of national principles, having been the
sponsor in this chamber of our treasured Canada Health Act over a decade ago. As
I outline these principles for higher education, I ask that you consider what
education means to you, your family and friends, and what it means and could
mean to this great country.
First, post-secondary education should be publicly funded. Any attempts to
privatize universities and colleges in Canada would lead to an American
two-tiered educational system. I am not promoting the exclusion of the private
sector in partnership with higher education. In fact, I believe these
partnerships should be encouraged and nurtured. Initiatives such as cooperative
education and private sector internships should be loudly applauded and
Second, post-secondary education should be affordable and accessible to
anyone who wishes and is able to attend. Part of the debate I believe needs to
occur is as to exactly what we mean by "affordable" and
"accessible." We often use these terms, but they often mean different
things to different people. I do not believe a university or college education
should be free, but I also do not believe it should only be for the economically
Third, as I have already mentioned in previous statements, students should be
guaranteed mobility rights from province to province. That is, like the federal
Canada Student Loan Program, provincial student loans should allow individuals
to study at the university or college of their choice, anywhere in Canada.
Fourth, our higher education system should be comprehensive; therefore,
students should have a full range of learning options, including college,
university, as well as professional and vocational training. In many regions of
this country, these options are not available.
Finally, courses taken at one institution should be easily transferrable or
portable to any other school in this country. Today, many students lose a whole
semester of work when they move from one university or college to another. This
is a blatant waste of their dollars and a waste of public funding.
Honourable senators, I believe the time for the debate on higher education is
now. The federal government has seen fit to stabilize the Canada Health and
Social Transfers for five years, beginning in 1998. In addition, they have
guaranteed a minimum floor of $11 billion for cash transfers. Both measures will
allow all levels of government, universities and students to better plan for the
In addition, the federal government has made a firm commitment to end the
duplication of services with the provinces. One small but fine example of this
has been the harmonization of administrative procedures for student loans. This
saves both levels of government money, it saves students time, and it
demonstrates how the provinces and the federal government can work together in
the area of post-secondary education.
Honourable senators, I hope many of you will find the time to participate in
this very important inquiry. I also wish to inform you that should I see enough
support for this issue, I would be prepared to refer it to the Standing Senate
Committee on Social Affairs, Science and Technology for a more in-depth study.