Debates of the Senate (Hansard)

2nd Session, 35th Parliament,
Volume 135, Issue 42

Tuesday, October 22, 1996
The Honourable Gildas L. Molgat, Speaker


Tuesday, October 22, 1996

The Senate met at 2 p.m., the Speaker pro tempore in the Chair.





The Hon. the Speaker informed the Senate that the following communication had been received:


October 22, 1996


I have the honour to inform you that The Honourable Peter deC. Cory, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy Governor General, will proceed to the Senate Chamber today, the 22nd day of October 1996, at 4:15 p.m., for the purpose of giving Royal Assent to certain Bills.

Yours sincerely,

Anthony P. Smyth
Deputy Secretary, Policy, Program and Protocol

The Honourable
    The Speaker of the Senate


Visitor in Gallery

The Hon. the Speaker pro tempore: Honourable senators, I wish to draw your attention to the presence in the gallery of the Honourable Justice Daniel Francis Annan, Speaker of the Parliament of Ghana, and to welcome His Lordship to the Senate on behalf of all honourable senators.



Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(h) I move:

That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, October 23, 1996, at one thirty o'clock in the afternoon.

The Hon. the Speaker pro tempore: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Motion agreed to.

Agriculture and Forestry

Committee Authorized to Meet During Sitting of the Senate

Hon. Leonard J. Gustafson: Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(a), I move:

That the Standing Senate Committee on Agriculture and Forestry have the power to sit at three fifteen o'clock in the afternoon of Tuesday, October 22, 1996, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

The Hon. the Speaker pro tempore: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Motion agreed to.


National Unity

Statements of Government Ministers-Request for Clarification

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I will go directly to my question by quoting the Minister of Justice, who said in the House of Commons on September 26:

The leading political figures of all our provinces and the Canadian public have long agreed that the country will not be held together against the clear will of Quebecers. This government agrees with that statement.

On September 30, also in the House of Commons, the Minister of Intergovernmental Affairs said:

...we in this country have accepted the idea that the country would break apart, if a population were to indicate very clearly that it no longer wished to remain in the federation.

These statements clearly indicate that this government, rather than working for the unity of this country, is quite openly preparing for its break up. Could the minister tell us what her colleagues mean by the terms "clear will" and "indicate very clearly"?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, my honourable friend will be aware of what ministers have said repeatedly in the past about the need for clarity, for factual information, and for a clear question to be put democratically to enable the people of Quebec to make a judgment in the future, should the circumstances occur on that basis.

My honourable friend takes from the comments that he has read, and others that he has mentioned, that somehow the Government of Canada is conceding that there will be another referendum, and that that referendum will be successful. I simply say to my honourable friend that that is not the motivation of the Government of Canada. The motivation of the Government of Canada is to act in such a way as to make a future referendum unnecessary.

I spent a couple of days over the break week with the Minister of Intergovernmental Affairs and listened to the message that he has been taking to various parts of Canada. It is a message of unity, optimism and determination to keep this country together. That is the underpinning of the government's intent on the national unity issue.

I should like to reiterate that statement again for my honourable friend: There is no concession to a negative outcome for Canada by this government.

Senator Lynch-Staunton: How can the minister reconcile that statement with what the Prime Minister said in Bedford, according to The Toronto Star of October 11:

Speaking to high school students yesterday, Chrétien said the government isn't asking the Supreme Court of Canada to block the will of Quebecers.

And then he went on to say:

"Personally, I don't think we can keep in Canada people who do not want to stay in Canada..."

But, he added, it would have to be expressed by "a very clear majority of the people who really knew what they wanted to do and knew the consequences."

Here is a third statement within a month - this time by the Prime Minister of Canada - after the Minister of Justice and the Minister of Intergovernmental Affairs have both said, as was confirmed by the Prime Minister, "If you want to go, we will find a way to let you go."

I can only interpret that statement to mean that, in the event of a province voting by a so-called clear will or clear majority to separate, the Government of Canada has accepted the possibility that that will be accepted, with just the terms and negotiations having to be determined. If that is where we are now, namely, that there is a possibility that one or more provinces, by a show of clear will, can leave, my question then is: What is meant by "clear will", "clear majority" and "a clear determination to go"? It must be numbers.

Hon. Jerahmiel S. Grafstein: Why?

Senator Lynch-Staunton: What do you mean "why"? We did not raise this matter; you raised it. Your government contemplates the possibility of this country being broken up. That is apparent from the words of two ministers of the Crown, and also from the words of the Prime Minister himself.

What some of us would like to know - and by that I mean those of us who are more liable to being detached from this country than others -

Senator Grafstein: Overwhelming!

Senator Lynch-Staunton: - namely, on what conditions the Government of Canada would accept the beginning of such negotiations. What is this "clear will" that would lead to negotiations, and what would allow that "clear will" to be expressed?

Senator Fairbairn: Honourable senators-

Senator Lynch-Staunton: Did you want your colleague to answer? He said "overwhelming". If that is the answer of the government, in numerical terms, what does "overwhelming" mean?

Senator Fairbairn: My honourable friend made a comment that the Prime Minister and colleagues of mine had raised this issue. I would observe that we have not raised this issue. This issue has been raised by the separatist movement in Quebec.

Senator Lynch-Staunton: What issue?

Senator Fairbairn: The issue of the referendum; the issue of the possibility of the country breaking apart. We were in a referendum almost one year ago.

Senator Berntson: You slept through it!

Senator Lynch-Staunton: You were not there!

Senator Fairbairn: This is neither a possibility nor a probability. Neither is it a will on the part of the Government of Canada - far from it. The will that the Government of Canada has contained in its policies and its obligations to all of Canada is to keep the country together. It has certainly put a reference to the Supreme Court of Canada, in order to receive from that body a response as to the clarity of the law, and that is quite proper. We have put those questions to the Supreme Court.

My honourable friend and I are at loggerheads in the context in which he is speaking. The Prime Minister and all of the associates whose job it is to work on this issue of national unity are not working from the premise that the country will break apart; they are working from the premise that the country will stay together, and how we, as a national government, can facilitate the kind of cooperation between provinces - including Quebec - that will make that possible.

Senator Lynch-Staunton: Honourable senators, perhaps I could make one last attempt at getting a straight answer to what could not be a clearer question: What is meant by "a very clear majority"? We have a referendum in Quebec and the question is clear. It is: Do you or do you not want to remain as part of Canada? That is the question that should have been asked in the last referendum, and in the one previous to that. If we are to have another referendum, let that be the question. Let us be agreed on that: Let that question be without nuance.

What will be the number of votes against Canada that are needed for the Government of Canada to accept the fact that a clear majority of Quebecers has agreed to leave?


What is meant by "a clear majority"? Is it 80 per cent? Is it 50 per cent plus one? Is it according to the democratic system whereby a majority is a majority, clear or not? That is what we want to know. What does the government mean numerically by "clear will" or "clear majority"?

Senator Fairbairn: Honourable senators, there is no referendum. We are talking about a clear consensus to keep the country together, not to pull it apart. I cannot give a specific percentage or figure in relation to the question that my honourable friend has asked. However, I want to emphasize again that the whole motivation of the Government of Canada is to act in a responsible and creative way in order to ensure that there is no referendum, and that the country will continue to operate as a unified nation.


Quebec's Place in Confederation - Pre-Election Statements of Prime Minister - Government Position

Hon. Jean-Claude Rivest: Honourable senators, if the government leader is unable to indicate what constitutes a clear majority, then do the discourse of the government and its reference to the Supreme Court constitute anything more than a pre-election move to reassure the Canadian public, who were led astray by what turned out to be the misplaced optimism of the Right Honourable Prime Minister Chrétien during the election campaign? Does this discourse and all the government's antics, which have nothing to do with the fundamental question of sovereignty, not merely constitute pre-election stunts?

If that is not the case, why would the government, as it gets ready to go to the polls, not tell the Canadian people clearly and precisely the number of votes required for separation and the reforms contemplated with respect to the fundamental question, which is Quebec's place in the Canadian federation? Are the Prime Minister of Canada and his government not simply putting up a smoke screen to restore the credibility they lost during the referendum?


Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, my honourable friend has asked me if this debate is nothing more than a pre-election move. The answer is no.


Pearson Airport Agreements-Status of Order Paper Questions

Hon. David Tkachuk: Honourable senators, as we are moving from one Liberal disaster to another, I should like to move from national unity to Pearson airport.

On April 25 and 26, 1996, I placed a number of questions on the Order Paper regarding the cancellation of the Pearson airport contracts. Since I had not received answers to those questions by the time I attended a committee on October 2, 1996, when we were questioning government officials about the new contract between the government and the Greater Toronto Airport Authority, I mentioned at that time that we would not have had to go through the whole exercise if my written questions had been answered.

Referring to the questions I had placed on the Order Paper, I asked Mr. Gauvin, the Senior Assistant Deputy Minister, and Mr. Jim Lynes, Director General, Financial Management, the following question:

I have not received any answers. I thought I would take this opportunity, since you are here, to see whether you have received these questions.

Mr. Gauvin: I have not seen them.

The Chairman: Could you check around the department? They may have been filed inadvertently in the leader's office. I want to remind them that they are still percolating out there. If you have not received them, who would have received them?

Mr. Gauvin: It depends on the questions.

The Chairman: They deal mostly with Estimates, and other financial stuff.

Mr. Lynes: If that is the case, we would have seen them. What was the date, sir?

Since I have no idea where to place the responsibility for this inadvertence, has the Leader of the Government in the Senate actually submitted those questions to the Department of Transport for answers?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, just before I came into the chamber today, I asked about the availability of those particular answers. I was told that I would be able to table them very soon.

Senator Tkachuk: Honourable senators, I want to know how this system works. I submitted those questions six months ago. The person who would have the answers to those questions was testifying before the committee on October 2, and said at that time that he had not yet seen them. Will we get true and proper answers? If the Assistant Deputy Minister had not seen the questions by October 2, I do not understand how the answers can be ready the following week. If that is possible, why were the answers not given five months ago?

Senator Fairbairn: Honourable senators, I will be very pleased to give my honourable friend a detailed description of the process followed in the case of written questions. People within the department have been working on these questions for months. I will get answers to them just as quickly as possible.

Goods and Services Tax

Harmonization with Provincial Sales Taxes-Lack of Consultation with the Populace-Government Position

Hon. Gerald J. Comeau: Honourable senators, my question to the Leader of the Government in the Senate is with respect to the blended sales tax. This tax grab will cost Nova Scotians an additional $84 million per year. It will tax everything from children's shoes to home heating.

In addition, by refusing to give municipalities the exemption they requested under the blended sales tax - or "BST," the Liberals have now slapped a $6 million to $8 million cut in revenues on municipalities. Such a drastic decrease will affect the services that Nova Scotians receive from their municipalities.

Given the serious economic consequences that this new tax will have on a province that is already experiencing high unemployment, can the minister explain why the government is so determined to have its Liberal cousins in Halifax push it through, knowing that it will be Nova Scotia consumers who pay?

I realize that the Liberals are trying to make Canadians believe that this exercise will fulfil their Red Book promises on the GST, but even Sheila Copps would know better. Why are you willing to punish the most vulnerable by imposing this brand new tax without the benefit of any kind of debate or discussion?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the federal government is not imposing this harmonization program on the provinces of Nova Scotia, New Brunswick or Newfoundland. Indeed, those three provinces have been willing to combine their efforts to come in on this new harmonization process which they see as advantageous to their provinces and, ultimately, to the individual consumers in their provinces.

The federal government has not forced this measure on any province. The option is available to every province in Canada. Three have picked it up. The Minister of Finance is still hopeful that many others will do the same.


Senator Comeau: Honourable senators, the government of Nova Scotia has not discussed this new blended sales tax with Nova Scotians. Not even a town hall meeting was held to explain this new tax. The people on whose behalf I am speaking are Nova Scotians who have not been given the benefit of any kind of input on this brand-new tax. Would the federal government undertake to do what the Nova Scotia government has failed to do and consult Nova Scotians on the imposition of this new tax?

Senator Fairbairn: Honourable senators, the federal government has great confidence in the ability of each province to take its own responsibilities to the people whom it serves. The governments of Nova Scotia, New Brunswick and Newfoundland are in place because of the support of the people within those three provinces. Certainly, this issue has not been hidden behind a closed door; it has been wide open for months.

I simply say to my friend that the provinces involved have played a very active role in setting out the terms and responsibilities that would devolve as a result of this change. I have every confidence in the leaders of those governments that they are on a path that will be most advantageous and beneficial to the people they represent.

Harmonization with Provincial Sales Taxes-Efficacy of Policy-Government Position

Hon. J. Michael Forrestall: Honourable senators, I should like to continue in this vein for a moment. We are talking not only about the stealthy way in which this was brought down to Nova Scotia some two or three weeks before the provincial legislature was to sit, in what probably will be a lengthy session, but about what is and what is not good public policy.

Years ago, I had a dilemma, as did many, with respect to my role as a Catholic legislator. Upon asking what kinds of law I could support, I was told that I could support good law. Good law is law people will obey. Primarily, it is law that people understand and believe to be good for them.

Has the minister in discussion with her colleagues given consideration to what seems to be happening? That is to say, we certainly have one province, and perhaps a couple others, with a signed deal. However, this is a large country. The population of that area of the country is relatively small. Will we in this country see a continuation of the development of law which affects some but not all and which affects one area of the country differently from another?

I recall, as will the minister, the debates concerning the regional fiscal dollar and whether we should have one dollar for Atlantic Canada and another for Ontario and Saskatchewan.

Does the minister believe, and did her colleagues discuss in cabinet, whether this is good public policy?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the honourable senator will understand that I cannot discuss with him issues that may have been discussed in cabinet.

As to this particular issue, the Minister of Finance has put forward a proposal for the entire country. This is not the first time in Canada's history that provinces have taken up proposals at a different pace.

There is something to be said for the concentration of interest and attention in the Atlantic provinces in that they have seen the benefits in accessing this program early and getting on with it for the benefit of the people who live in those provinces.

As I said to Senator Comeau, it is still the view of the Minister of Finance that this will become a national program and that all provinces have the same opportunities to participate in it, just as did the provinces who have decided to get on board.

Harmonization with Provincial Sales Taxes-Request for Details of Implementation

Hon. J. Michael Forrestall: Honourable senators, perhaps it is hypothetical to ask what will happen if the other provinces do not take it up.

Within the next 12 months there will be provincial elections in Prince Edward Island and Nova Scotia. In fact, the one in Prince Edward Island is in progress. It is also expected that there will soon be a national election. Are we to go into a campaign with this kind of public policy hanging out front?

When will Nova Scotia see its share of the $1 billion which has been held out to the Atlantic provinces? When will the amount that is to go to them be finally determined? How will the funds be transferred? Will they be transferred to the general revenues of the province?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I do not want to speculate as to when elections will be held federally, let alone provincially.

This question of public policy is out in front for every province to study and to come into as they see advantages for themselves. The three provinces of Atlantic Canada have chosen to do that.

Clearly, with the agreement between the two levels of government, the compensation that was set out in the beginning will, indeed, be available. I do not have with me the details of how it will be done or the timing of it. I will obtain such information for my honourable friend.

Senator Forrestall: Honourable senators, will the minister find out if the agreement will be signed in the near future with the other two provinces?


Pearson Airport Agreements-Items of Expenses in Public Accounts-Request for Details

Hon. Marjory LeBreton: Honourable senators, in the recently released Public Accounts figures there is a very large sum listed in section 10.22 entitled, "Payment of Claims against the Crown..." Out of a total of $1.624 million there is one rather large payment entitled, "Compensation for cancellation of Pearson Airport transfer settlement, Goudge S in Trust... 1,561,000". On what was this amount of money expended? Was it for Mr. Nixon's appearance before the Senate's Pearson inquiry?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I will have to look at that section of the Public Accounts before I can answer the honourable senator's question.

Senator LeBreton: Honourable senators, the Pearson inquiry heard evidence that $1 million was paid to the law firm of Scott & Aylen. An undetermined amount was also paid to the forensic accountants, better known to some of us as "gumshoes". This amount is a rather interesting one. It was paid to Mr. Gouge who, as honourable senators will recall, appeared with Mr. Nixon. I should like to have a complete breakdown of all the expenses.

Senator Fairbairn: Honourable senators, I will do my best to provide information in that regard.

Delayed Answers to Oral Questions

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I have a response to a question raised in the Senate on May 29, 1996 by the Honourable Senator Lynch-Staunton in regard to a Taiwanese ship docked in Halifax harbour; and a response to a question raised in the Senate on October 3, 1996 by the Honourable Senator Cohen regarding an alleged incident of sexual harassment at a construction site on Parliament Hill.


Taiwanese Ship Docked in Halifax Harbour-Alleged Illegal Acts Perpetrated on High Seas-Government Position

(Response to question raised by Hon. John Lynch-Staunton on May 29, 1996)


When does the government involve itself in Royal Canadian Mounted Police (RCMP) investigations and when does it decide not to do so?

Is this the way that the supervision of our federal police force is executed - on occasion it is loose, and other occasions the civil authority directs it?


By statute and in accordance with fundamental principles of the Canadian legal system, the RCMP are responsible for conducting criminal investigations in this country, independently and free from interference from any other government officials. Thus, it is never appropriate for other government officials to direct, intervene or interfere in a police investigation. That does not mean, however, that officials in other government departments are never involved in any way in matters relating to criminal investigations.

On many occasions the police may seek information, advice or assistance from other government departments, including the Department of Justice. For example, the police may require advice during the preparation of a search warrant, or in obtaining a wiretap authorization, or general advice on issues of law that may arise in the course of an investigation.

In the case of the M.V. Dubai, on the facts of the case, the investigating authorities were faced with very serious questions relating to Canada's jurisdiction to investigate and prosecute, and thus Ports Canada and the RCMP sought and received advice from experts within the Department of Justice on these jurisdictional questions. At no time, however, did the Department of Justice interfere with or take over the investigation process from police authorities.

It was ultimately determined that Canada had no jurisdiction over the alleged offences but other countries would have responsibility for investigating and prosecuting. At that stage, other government departments, Justice and Foreign Affairs, had very important roles to play in communicating with the relevant foreign states. Ultimately, the arrests in this case were made pursuant to a request by Romania for the purposes of extradition, and thus the Minister of Justice and his delegated officials were immediately implicated since, by statute, the Minister of Justice is responsible for extradition. Similarly, the search which was conducted by the RCMP was carried out on the basis of a request for assistance submitted by Romania pursuant to an administrative arrangement entered into between Canada and Romania under the Mutual Legal Assistance in Criminal Matters Act. The Minister of Justice is statutorily responsible for the administration and implementation of that legislation.

Therefore, the Dubai case does not involve, in any way, the supervision of our federal police force by other authorities, nor was this a case of interference in a police investigation. In fact, in this very difficult and complicated matter, officials of various government departments have worked together to properly carry out their legislated mandates and responsibilities.

Public Works

Alleged Incident of Sexual Harassment at Construction Site on Parliament Hill

(Response to question raised by Hon. Erminie J. Cohen on October 3, 1996)

This case did point out a weakness in the government's ability to take immediate action to deal with complaints about government contractors and sub-contractors.

The new contract clauses, which are now part of all goods, services and construction contracts, make it clear that contractors and sub-contractors that fail to take effective action to ensure a discrimination-free workplace, may be terminated for default and, should they be found in breach of any law dealing with workplace discrimination, they may lose the privilege of bidding on future contracts with the Federal government.

These new contract requirements are effective as of September 12, 1996. From that date forward, a contractor's discrimination history and poor performance record will be taken into consideration.



Judges Act

Bill to Amend-Third Reading-Debate Adjourned

Hon. John G. Bryden moved the third reading of Bill C-42, to amend the Judges Act and to make consequential amendments to another Act.


Hon. Pierre Claude Nolin: Honourable senators, the committee sat last Thursday. We heard some very interesting witnesses. I asked the committee to wait until I had consulted my caucus so that I could table an amendment. This was refused. I respect this decision.

Since last Thursday, certain witnesses, who for all sorts of reasons did not see fit to appear before the committee, thought it appropriate, however, to discuss the matter with journalists. Trade journals began to publish articles based on comments that could have been shared with the committee. Therefore, I have not finished reading all this material. I intend to move an amendment tomorrow. I therefore wish to adjourn debate.

On motion of Senator Nolin, debate adjourned.


Criminal Code

Bill to Amend-Second Reading

On the Order:

Resuming the debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Carstairs, for the second reading of Bill C-45, to amend the Criminal Code (judicial review of parole ineligibility) and another Act.

Hon. Gerry St. Germain: Honourable senators, over the past number of years, I have risen many times in this and the other place to speak out on the failures of the Canadian justice system. I have done so, not only as a member of the opposition, but also as a member of government.

One of the failures of which I have often spoken relates to section 745 of the Criminal Code which provides those incarcerated for murder the opportunity to apply for early parole.

Perhaps because of my background as a police officer in both Manitoba and British Columbia, I believe I have a unique perspective on issues related to crime, the commissions of crime, and a slight understanding, I think, of the punishment aspect that should go with the viciousness of crimes that are committed.

Even today, I keep in touch with many of my former colleagues who are active police officers across the country. Without exception, the major frustration among these police officers is that the justice system is oriented to protect the rights of the criminals over those of the victims. They want, as do the majority of Canadians, the pendulum of justice to swing more in the direction of the victim.

I am pleased that the government has recently begun to introduce legislation that addresses these concerns to a degree and gives more rights to the victims of crime. However, much more is needed, and a good place to start would be with the entire removal of section 745 - totally remove it, not tinker with it or fool around with it. Senator Cools, my colleague in this place from the other side, has introduced legislation in this place to achieve this goal, and similar legislation was introduced in the other place.

Poling has shown that Canadians want section 745 removed in its entirety from the Criminal Code. I do not believe in governing by opinion polls, but I do believe there has been enough controversy and investigation surrounding this issue that we must accept that there is some basis for change, over and above the polling results. The public believes that the those found guilty of murder should serve their full sentence with no chance of parole. In fact, polling also shows that many Canadians believe, as do I, in much tougher treatment, including the reinstatement of capital punishment in certain instances.

After months of delay and foot dragging, the government has finally moved to act upon this issue, and the result is the bill we have before us today, Bill C-45.

In my years in politics, and I have been on the hill for about 13 years, I have not seen a more cynical piece of legislation. Bill C-45 is an insult to the memories of many innocent Canadians who have been murdered in this country, and a huge injustice to the families of those victims who once again will be victimized, but this time by their own government.

This bill does not even address the most moderate views of Canadians. Instead of addressing the issue head on, this government has once again chosen to appease the special interest groups of the left, and it is becoming increasingly evident that these groups have this government's justice minister in their back pockets.

I fail to understand the logic and the morality of a government that would propose such legislation. Instead of simply repealing section 745, this government proposes to exempt only those who are found guilty of murdering more than one person. All others found guilty of murder, which is more than 95 per cent of those incarcerated for murder, will still be eligible for early parole under section 745. Thus, this bill affects less than 5 per cent of those who might apply for early parole.

What message is this government trying to convey to the public? Are they telling us that, if you kill one person, you are not all that bad, but if you kill two people or more, then you will be in trouble? Could any government be this cynical? Could any government exhibit these types of morals in view of the vicious nature of this crime?

The response from the government, and chiefly the Minister of Justice, is that section 745, which is better known as the "faint hope clause", is there to provide people incarcerated for murder with hope to reform themselves, to once again be productive members of society. I ask you, what hope is there for the victims, and what hope is there for their families? There is not a faint hope; there is no hope. They have lost a member of their family.

Honourable senators, I do not know how many murderers the Minister of Justice has met or dealt with in his lifetime, but as one who has dealt with them face to face and incarcerated some, I do not have a lot of sympathy or compassion for anyone who has taken the life of a fellow human being in a premeditated fashion. Least of all, fellow senators, I do not hold out much hope that some day murderers such as Clifford Robert Olson or Paul Bernardo could once again be productive members of society. In fact, if it were up to me, they would no longer be with us, because I believe that capital punishment is the only solution when dealing with such vicious people.


I know some of the police officers who investigated the Olson murders. I will not repeat what I was told because I have too much respect for their families, but if any of you had any understanding as to what actually took place, believe me, you would not be seeking a politically correct answer to this problem, but a solution that would be justifiably equal to the viciousness of the crimes that were committed.

I would like the Minister of Justice to telephone the families of people like Tanya Smith in Abbotsford, B.C., and tell them that he still has hope for the person or persons who were responsible for her rape and murder. I want them to hear that the Minister of Justice believes that a person deserves an opportunity to apply for early parole. I want him to explain why he thinks that the "fairness" of this section is more important than any pain or sorrow that this may bring to their families.

It is easy for judges, lawyers, and those of us who sit in places like this to say that we should do this or that. Perhaps it is time to consider the viciousness of these crimes. We must expose ourselves to the details and understand just what takes place in the course of the commission of such a crime. Then we may have a different perspective of the entire issue.

In introducing this legislation, is the Minister of Justice telling Canadians that he has statistics to indicate that a murderer who kills more than one person is somehow more likely to kill again once released from prison? What if Clifford Robert Olson had killed only one person and then been arrested? Do you think Olson would be any different today? If he had been released on early parole as a result of being arrested for the murder of just one person, do you think that the make-up of that man would be any different? Can you imagine setting this person free under the "faint hope" section, section 745?

I would like to know on what basis the Minister of Justice decided to exempt those who murdered more than one person. Why would he pick this number? Why not choose to exempt only those who killed more than three or more than five? Are there statistics we do not know about? Perhaps it is a question of morality. I do not know. I cannot, for the life of me, come up with any logical explanation as to why one is any different from two, three, four or five.

I ask you, is the killer of more than one person more immoral than the killer of only one? Are there psychological studies or research to show this is a fact; or is this, as I suspect, based on some warped, arbitrary decision by a justice minister who listens more to the groups who represent murderers than he does to the families of the victims?

Honourable senators who know me well know that I do not consider myself to be a great philosopher or jurist. Like many others in this country, I have worked hard to provide for my family and to help my fellow man wherever possible. I have lived by some simple rules based on logic and spiritual values. Today, the definitions of right and wrong have been clouded by those who, in their own interest, have sought to distort the truth. The truth is, basically, that it is wrong to kill.

Morality is an important consideration when looking at this issue. I have been taught to believe that all human life is precious and that to take life is wrong. In fact, I do not recall that the Ten Commandments prohibit only the murder of more than one person. I have before me a passage from the book of Exodus in which Moses reassures the people. It states: "Thou shalt not kill." It does not state: Thou shalt not kill more than one. It just states: "Thou shalt not kill." Maybe the justice minister has a more recent edition of Exodus which I have not seen, but I do not believe that is the case.

Honourable senators, the fact is: Murder is wrong. It matters not how many times one commits it: It is wrong. Equally, the punishment for those who commit first degree murder should not be based on the number of those murdered.

Canadians have said quite clearly that those who murder should, at the very least, serve their full terms without any chance of parole. This is one of those rare issues in which we as politicians should and must put aside our political allegiance and focus on what is right and just for Canadians.

We had a free vote on the reinstatement of capital punishment in the other place when I was a member. There is no question of how I voted. I voted against many of my colleagues. Some on the other side voted with me. Unfortunately, we were not successful in reinstating capital punishment. However, I urge you to set aside your political partisanship on this particular issue.

It seems that the Minister of Justice does not share this sentiment. I know that many senators from both sides have expressed their desire to have section 745 eliminated. I hope and trust that they remain committed to this cause.

Honourable senators, we owe it to the families of the murder victims, we owe it to the memory of those killed, and we owe it to the general public to protect them from those who have no respect for law and order or for life in general.

Honourable senators, section 745 should be struck from the Criminal Code in its entirety. We should proceed with protecting the innocent in society and in ensuring that those who have no respect for life are denied the freedoms that the law can provide.

Hon. Nicholas W. Taylor: Honourable senators, I have, through my years in politics, been quite close to the issue of capital punishment. I have seen it come and go. I can understand the feelings of people like Senator St. Germain who argue, based on biblical principles, that if you take somebody's life, you must give your life in turn.

Through the years, the whole debate of capital punishment has waxed and waned. In general, now, most of the western world does not feel that they can stop people from killing by killing people. In other words, if the state decides they will kill people, that in itself does not appear to be a deterrent.

One thing has been overlooked in this debate. I did not want to get into the morality of capital punishment, but it is interesting that Senator St. Germain suggests throwing out the section in its entirely. Of course, if we did that, we would be in worse shape in that everybody would qualify for parole.

My grey hair may prove that I have been around longer than Senator St. Germain. Perhaps while he was a boy scout waiting to become a policeman, I was already out there in the world. I do remember clearly that this section was added to the Criminal Code to protect the police, guards and social workers who worked with criminals in the jail system.

If we do away with capital punishment in favour of life internment, then a life prisoner becomes a sort of caged animal, walking around in prison with nothing to lose by whatever he may do to a guard, a policeman or a social worker he may encounter. This section was included to protect those jail workers. That is why it is called the "faint hope" clause. Statistics show that, in all the years that this clause has been in place, since 1976, there has been not one freed murderer who has committed another murder. Of the dozen or so who were released, one committed a burglary. Even Senator St. Germain, who believes in law and order, would not approve of hanging somebody for burglary.

The purpose of this section is to protect prison workers. The "faint hope" clause has not been used as an escape hatch. It has been used, as often happens in the press, as a whipping boy. The press has attacked this section in order to entice the public entirely away from the fact that life-term prisoners need some window of opportunity to encourage better behaviour and to ensure a safer prison environment. Policemen and people like yourselves who have worked with criminals must be protected, as well as their families. Their families are important. They must know that they are safe when their husband, brother, son or daughter is off to work in the morning, working with caged animals who have no hope, and nothing to lose in whatever they do. That was all I wanted to say.

Senator St. Germain: Honourable senators, in response to Senator Taylor, I believe that what he has said is partly correct. That argument was put forward. However, he leaves the impression that these people were incarcerated for life. Actually, the period of incarceration is 25 years. We are saying that section 745 allows those who have been sentenced to 25 years imprisonment to apply for early parole. However, those of us who are proponents of the reinstatement of capital punishment are saying that those who are found guilty and are sentenced to 25 years, as directed under the Criminal Code, will serve their 25 years.

I find the honourable senator's argument a weak one. However, it may be that more credence is given to it in certain quarters than I would be willing to accept. Perhaps the "faint hope" clause does make it easier for those who are supervising and working in our penal institutions. I know how difficult that work is.

Senator Taylor has said that there is no hope. If you live for the 25 years to which you are sentenced, then you are released under the system of which I am speaking. It is not the case that if you are incarcerated for life, it is for your natural life. In Canada, it is a 25-year sentence. If you are 20 years old and commit a murder, at age 45 you are freed to walk the streets. Section 745 allows you to apply for early parole after you have served 15 years. We are saying, "No. If you take a life, you must serve your 25 years."

I still believe the system is capable of looking after itself. Those who run our penal systems can do an adequate job. If there is something that should be done to assist them, I am prepared to assist them, but I am not prepared to let these people back out on the streets.

Senator Taylor: But they will not be back on the streets.

Senator St. Germain: They will be, after 25 years.

I appreciate the comments of Senator Taylor. I was most likely a Boy Scout when he was already in the Alberta Legislature. We must have some young folks in here, too.

Hon. Anne C. Cools: Honourable senators, if my colleague would take a question, I would ask him if he could clarify something for us.

I understand your deeply held sentiments, and I agree with many of them. However, there is a lot of confusion on this issue concerning 25 years versus 15 years. In point of fact, the sentence is life. We should allow the sponsor of the bill, Senator Milne, to clarify the situation somewhat. When we are speaking about 15 or 25 years, what we are actually speaking of is the parole eligibility date, or the PED.

However, to repeat, the sentence is life, which means that the warrant under which the inmate is detained expires the day the inmate dies. In the lexicon of the Department of Corrections, that was called WED, or the warrant expiry date. I voted and made a lot of decisions on that definition.

Since there is so much public confusion on what 15 and 25 years actually means, perhaps Senator Milne could explain and put on the record the difference in sentences between life as a minimum, life as a maximum, and the real meaning of parole eligibility dates and warrant expiry dates.

Hon. Lorna Milne: Honourable senators -

The Hon. the Speaker pro tempore: Honourable senators, I wish to inform you that if the honourable senator speaks now, her speech will have the effect of closing the debate on the second reading of this bill.

Senator Milne: If no one else wishes to speak, I am ready to do so at this time.

The Hon. the Speaker pro tempore: If the honourable senator is attempting to answer a question that someone has put to her, then that is a different matter. I assume that the senator is rising to speak on the main motion. Therefore, I am required to inform her that her speech will have the effect of closing the debate.

Hon. Marcel Prud'homme: Honourable senators, for clarification, I think Senator Cools was asking a question of Senator St. Germain. I do not know if the rules allow a senator to ask a question of a senator who does not have the floor. At this time, Senator Milne does not have the floor. I agree that if no other senator wishes to participate, and if Senator Milne rises to speak, she will be the last speaker. At the moment, the Senate is not seized with her expertise and her speech. Therefore, we should not ask her a question. Am I correct in my interpretation of the rule?

The Hon. the Speaker pro tempore: It is academic. If Senator Milne speaks now, her speech has the effect of closing the debate. However, there is nothing to stop her, in closing the debate, from addressing questions if she so wishes.

Senator St. Germain: To answer Senator Cools' question very briefly, I would gladly accept a question from Senator Milne. If Senator Milne wishes to clarify anything, she can do so; I do not oppose it. I appreciate the fact that Senator Prud'homme has clarified that point.

I spoke more in practical terms about what 25 years really represents. In normal practice we have not arrived at a point yet, necessarily, where we actually had to deal with this matter. I appreciate this as valuable information.

Senator Milne: Honourable senators, it will come as no surprise to this chamber to hear that the Honourable Senator St. Germain and I disagree on this question.

In answer to some of the questions that have been raised here today, people who commit a murder are not sentenced to 25 years; they are sentenced to life, as Senator Cools has so ably explained. No matter when they receive parole or if they receive parole, they will be under supervision for the rest of their lives until they die.

Following my speech last night, Senator St. Germain asked me how many repeat offenders have been released under the present system, and committed murders after their release. I was assured by several of the honourable senators around me last night that the answer was none, but I preferred to find out for myself and make sure of my facts. I found out that the simple answer is "none". In other words, my honourable colleagues were correct.

The first application under section 745.6 was made only in 1987. Since that time, a total of 50 persons have had their parole eligibility dates moved up. The latest date for which I have information is for the end of 1995. Of those 50, six were denied any form of parole by the board; five have not yet been reviewed for parole; three are still not eligible to apply; seventeen are on full parole; eight are on day parole; six are on what is called unescorted temporary absence; one is dead; two have had their parole revoked for technical violation of parole conditions; one has had his parole revoked due to being unlawfully at large, which is a substantial breach of parole conditions; and one has reoffended. That was a case of armed robbery, and that person is presently back in jail. In fact, none have committed murder.

It is apparent, as I mentioned yesterday, that there is a wide disagreement between various groups on this issue, and there is wide disagreement within this house. I look forward to continuing our study of this bill in committee.

The Hon. the Speaker pro tempore: As honourable senators will recall, Senator Milne's speech, in effect, closes the debate. Therefore, I have no choice but to put the question.


Senator Cools: Honourable senators, may I have leave to put a question?

The Hon. the Speaker pro tempore: If I could deal with matters seriatim, is leave granted?

Some Hon. Senators: Agreed.

An Hon. Senator: No.

The Hon. the Speaker pro tempore: I have heard at least one "no".

Senator Prud'homme: This is an interpretation of what is, perhaps, an unclear rule. Senator Milne is designated as the last speaker, but a question put to her is considered to be part of her speech. If Senator Milne does not wish to answer, that is her choice. However, I am positive that the rule could be interpreted to mean that, whether or not Senator Milne agrees to answer questions, she is allowed to have the last word because she will be the last speaker. That does not, however, deprive a senator of the opportunity to ask questions. If that were the case, the last speaker could make all kinds of extravagant statements with no opportunity for questions.

I see that our competent staff is now considering this interpretation and we will all be enlightened by their advice.

Hon. Eymard G. Corbin: On a point of order with respect to the comments which have been made, if honourable senators wish to put questions about details of the bill now before us, on which His Honour is about to put the question on sending the bill to committee, the place to put questions of detail is in committee. On the debate on second reading, we should have a full discussion of the principles of the bill. Honourable senators who have questions should attend the committee and put their questions there.

The Hon. the Speaker pro tempore: Rule 35 of the Rules of the Senate of Canada states:

A Senator who has moved the second reading of a bill or made a substantive motion or an inquiry shall have the right of final reply.

Rule 36 reads:

The final reply provided for in rule 35 closes the debate. It is the duty of the Speaker to ensure that every Senator wishing to speak has the opportunity to do so before the final reply.

That, obviously, is the reason the Chair must point out that when the senator speaks, he or she closes the debate.

As Senator Corbin pointed out, in committee and, of course, at third reading, there are opportunities for senators to make known their views. Pursuant to the rules, I am required to put the question.

Senator Prud'homme: On a point of order, I read rule 35 in French. I read it to mean that a final opportunity of reply will be given to Senator Milne.


A senator who has moved the second reading of a bill shall have the right of final reply. So he will have the final reply to a question, and that is exactly what we are waiting for Senator Milne to do.


We are waiting for Senator Milne to give her final response. The rule is not clear.

With regard to what Senator Corbin said, not all senators can attend all committee meetings. I attend many committees, but senators do not have time to attend all committees to simply ask a question on one point. The ultimate place to raise a question is here in the Senate.

Senator Cools: To add to Senator Prud'homme's point, although debate and deliberation in committee is valuable and essential, it should be crystal clear at all times that consideration in a Senate committee is not a substitute for Senate debate. I understand Senator Corbin's remarks, but it must be clear that a Senate committee is not a substitute for the Senate chamber.

The Hon. the Speaker pro tempore: Before putting the question, as I understand the rules require me to do, Senator Prud'homme referred to the French text. I do not see any discrepancy between the English and the French versions.

Rule 36 reads:

It is the duty of the Speaker to ensure that every Senator wishing to speak has the opportunity to do so before the final reply.

The final reply is the reply which the senator makes after other senators have been informed that the senator's speech will close the debate.


Honourable senators, in French it is exactly the same. A senator who has moved the second reading of a bill shall have the right of final reply. It says in rule 36:

The final reply provided for in rule 35 closes the debate. It is the duty of the Speaker to ensure that every senator wishing to speak has the opportunity to do so before the final reply.

Once the senator is recognized and his colleagues have been informed that his reply will close the debate, the senator will necessarily have that opportunity. This is my opinion, my interpretation of the rule, and I am not infallible. After all, I am the Speaker pro tempore, I am not the Pope pro tempore.


Senator Prud'homme: Those are the rules. I would never appeal a ruling by our Speaker. However, I wish to put on record that the definition of "le droit de réplique définitive" is very clear in English and in French, but what is the definition of "réplique définitive?" "Réplique définitive" is exactly what Senator Milne would have had, had she answered any question. "Réplique définitive" is very clear in English and in French. Any senator can say anything, but Senator Milne has the last word; she has "la réplique définitive".

That is my interpretation, which I want to have on record for future debate.


The Hon. the Speaker: Honourable senators, I have neither the right nor the inclination to start a debate with my friend and colleague Senator Prud'homme. I will now put the question.


It was moved by the Honourable Senator Milne, seconded by the Honourable Senator Carstairs, that this bill be read the second time.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

On motion of Senator Milne, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.

Visitor in the Gallery

The Hon. the Speaker pro tempore: Honourable senators, I wish to recognize the presence in the gallery, and welcome on your behalf, the Honourable Stan Schumacher, Speaker of the Legislature of the Province of Alberta.

Welcome to the Senate.



Changes to School System-Amendment to Term 17 of Constitution-Report of Committee-Motion in Amendment-Debate Continued

On the Order:

Resuming the debate on the motion of the Honourable Senator Rompkey, P.C. seconded by the Honourable Senator De Bané, P.C., for the adoption of the thirteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (respecting Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act), deposited with the Clerk of the Senate on July 17, 1996.

And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the Report be not now adopted but that it be amended by deleting the words "without amendment, but with a dissenting opinion" and substituting therefor the following:

with the following amendment:

Delete the words in paragraph (b) of Term 17 that precede subparagraph (i) and substitute therefor the words: "where numbers warrant,".

Hon. Richard J. Stanbury: Honourable senators, I rise to speak to Senator Doody's amendment to Term 17. I am reluctant to take a position on a subject that is clearly the concern of the people and government of a province other than my own. I know that the structure and the conduct of the school system in Newfoundland and Labrador has been a matter of controversy for some time. However, education is a provincial responsibility. Parliament is involved because the existing arrangement, as different as it may be from the educational arrangements in other provinces, was believed to be important enough to the people of Newfoundland that its preservation was made a term of their entry into Confederation.

Of course, that was 47 years or two generations ago and, more recently, Newfoundlanders of all religious persuasions have elected, with a convincing majority, a government committed to bringing the establishment of schools into a system that would give government a closer control over the expenditure of taxpayers' money for school construction and operation.

An opportunity was afforded the people to vote on the restructuring plan. While the vote was favourable, not much more than one-half of the voters saw the subject as serious enough to even go out to vote. The newly elected legislature, made up of representatives of all the people of whatever religious persuasion, then passed the renewed Term 17 without amendment.

More recently, the elected members of this legislature unanimously passed a resolution urging the Parliament of Canada to move speedily to pass Term 17 so that the government of Newfoundland and Labrador can implement necessary and urgently needed changes in the province's education system. The House of Commons, in a free vote, passed the necessary resolution amending the Constitution, again without amendment and with relatively little opposition.

That history would normally persuade me that the resolution submitted for our approval by Senator Rompkey should receive our enthusiastic support; but suddenly I find that colleagues whom I respect, such as Senator Doody, are opposed, or at least want the resolution amended before it is accepted. In response, I have examined the new Term 17 with care, and have measured my understanding of it against Senator Doody's explanation of his concerns. If my understanding is correct, then I am afraid that Senator Doody is quite wrong in his interpretation. When the correct interpretation is put upon it, Senator Doody probably will want to withdraw his amendment.

Hon. C. William Doody: Will you put odds on that, senator?

Senator Stanbury: Senator Doody clearly believes that under the proposed Term 17, the right to denominational education would no longer be constitutionally guaranteed. He said that the proposed Term 17 would do away with all rights of denominational education, making them subject to provincial legislation. I must tell you, honourable senators, that that interpretation of the proposed Term 17 is simply wrong.

The problem may arise from a misreading of the proposed term. In fact, in his speech Senator Doody purported to quote an important section of that term, but the quote was incorrect. In his speech, Senator Doody, as reported at page 904 of the Debates of the Senate for October 1, 1996, quoted section (a) of the proposed new Term 17 as follows. He said:

Section (a) states:

except as provided in paragraphs (b) and (c), schools established...shall continue to have the right to provide for religious education as provided in (b) and (c).

In fact, nowhere in section (a) is there a right to provide for religious education "as provided in sections (b) and (c)." Section (a) is quite explicit in setting out in clear language the denominational educational rights that will exist for all schools established, maintained and operated with public funds.

Section (a) states:

(a) except as provided in paragraphs (b) and (c), schools established, maintained and operated with public funds shall be denominational schools, and any class...having rights under this Term as it read on January 1, 1995 -

which includes the Roman Catholics, the Pentecostals and the Seventh Day Adventists -

- shall continue to have the right to provide for religious education, activities and observances for the children of that class in those schools...

Senator Doody: "Subject to provincial legislation".

Senator Stanbury: It does not say that at all, senator.

That is quite different from what Senator Doody quoted. The section is crystal clear. The denominational education rights to provide for religious education, activities and observances in the classroom are not subject to legislative whim. They will be entrenched in the Constitution. Paragraph (b) does not in any way undermine these rights. Paragraph (b) refers only to provincial legislation that is uniformly applicable to all schools, specifying conditions only for the establishment and continued operation of schools. Yet Senator Doody would have us believe otherwise. He said, as reported at page 904 of the Debates of the Senate of October 1, 1996:

"Subject to provincial legislation," denominational education rights shall be continued. Honourable senators, I ask you what possible satisfaction can the minorities in Newfoundland take from the fact that they will be given denominational educational rights subject to provincial legislation? There is no satisfaction. There is fear. There is worry and concern.

That is what Senator Doody said.

Senator Doody: It was right.

Senator Stanbury: Of course paragraph (a) does not say that. It does not make the continuation of denominational education rights subject to provincial legislation. To the contrary; under the proposed Term 17, all schools will be denominational schools, with the limited exception of paragraph (b)(ii) schools, which no one disputes, and the right of the protected minorities to provide religious education, activities and observances in these schools would be clearly set out and enshrined in the Constitution. The rights enumerated in paragraph (a), the right to provide for religious education, activities and observances, have been held by the Supreme Court of Canada to be the core values of denominational rights.

Honourable senators, it is clear from reading the proposed new Term 17 that denominational education rights of minorities would be protected. The fundamental right to be able to educate children of one's faith in that faith will be entrenched in the Constitution. It is simply not true to say that the constitutional protection for denominational educational rights of Roman Catholics, Pentecostals, Seventh Day Adventists, and others, as Senator Doody said, as reported at page 904 of the Debates of the Senate:

Their constitutional protection would, under this proposed amendment, be taken away from them and put in the hands of the legislators of the House of Assembly in Confederation Building in St. John's, and that, honourable senators, is not right.

That is not so.

Senator Doody: It is.

Senator Stanbury: The constitutional protection for denominational education rights of these groups is there in black and white in the proposed Term 17.

What, then, is the issue before us? It is not, as Senator Doody suggests, the right to denominational education for minorities, but rather the right, under paragraph (b), of certain minorities to have their own schools, the so-called unidenominational schools, provided out of public funds. This right is separate from the entrenched right of each of the protected minorities to go into the paragraph (a) denominational schools, which might also be called interdenominational schools, and provide religious education, activities and observances for the children of their faith in those schools. Under Term 17, the protected minorities would receive additional rights with respect to the unidenominational schools.


Paragraph (b) is clear. Each of the protected minorities will have a right to publicly funded unidenominational schools. That right will be enshrined in the Constitution. The province will have the right to pass legislation setting out conditions for the establishment or continued operation of these unidenominational schools. I want to be very clear on this definition, because I believe it is a considerably narrower issue than that presented by Senator Doody.

Senator Doody wants to take the right to set parameters for the establishment of unidenominational schools away from the duly elected legislators in the province and give that right to the courts. It would not be up to the province to decide, for example, the minimum size of school it could afford to build and support. That issue would be determined by the courts. However, it was similar financial matters that gave rise to the new Term 17 in the first place.

As Senator Rompkey told us a few days ago, the Newfoundland minister of education was very clear that this amendment would completely frustrate Newfoundland's efforts to proceed with the reforms they want to achieve. He said that, if this amendment were to proceed, then the entire exercise of constitutional amendment will have been for naught.

This amendment is not a new idea. It was proposed and debated at great length in Newfoundland itself and, most important, it was rejected. Honourable senators, what would be the point in our passing an amendment that we know was considered very seriously by the duly elected representatives of Newfoundlanders and rejected by them?

Honourable senators are exercising their traditional role as protectors of minority rights, yet it is clear to me, in reviewing the committee report on Term 17 and reading the transcripts, that this amendment would help certain minorities at the expense of others. In particular, the Seventh Day Adventists were clear when they testified before the committee that the words "where numbers warrant" would not help them at all. Indeed, a constitutional lawyer who supported the arguments of the Roman Catholics and Pentecostal representatives on the debate on Term 17 testified before the committee that the substitution of the phrase "where numbers warrant" would effectively remove any protection for the Seventh Day Adventists. He said that, under such circumstances, they probably do not have any protection.

Is it the mandate of honourable senators to decide which minorities should be protected and which should not? That is effectively what we would be doing if we passed this amendment.

Let us not deceive ourselves. Newfoundland and Labrador is a province comprised of many religious minorities. The combined minorities represent 95 per cent of the population. In fact, the Roman Catholic group is the largest single group in the province. Therefore, we would be defeating the purpose of the new Term 17 requested by a province made up of many religious minorities in order to help the largest group, the group least in need of protection. Is this truly protecting minority groups?

That also raises the question of who it is that opposes the new Term 17. If 95 per cent of the people constitute minority groups and those groups are the people offended by the change, then why is there even a small majority voting in favour, and why have they elected a government committed to this change and a legislature that voted unanimously for it?

Did the spokespersons for the religious minorities, of whom Senator Doody spoke, who appeared before the committee in Newfoundland and opposed the new Term 17 really speak for Newfoundlanders of these faiths? Who can say that it is not the members of the minorities themselves, making up 95 per cent of the population, who have demanded these changes?

For example, in reviewing the committee transcripts, I was impressed by the testimony of the leader of the official opposition in the Newfoundland legislature, Mr. Loyal Sullivan. He told the committee that he is a Roman Catholic, a parent of three children in the Newfoundland school system and, indeed, taught for 20 years in the Roman Catholic school system. He supports the proposed Term 17 and, in fact, opposes the amendment we are debating today. Clearly, the Roman Catholic spokespersons who appeared before the committee did not speak for him. Is Mr. Sullivan, as a duly elected member of the legislature and leader of his party, not a more credible spokesperson for his own and other minorities?

Similarly, the Minister of Education, the Honourable Roger Grimes, is a Pentecostal from a Pentecostal family. He was also a teacher, first in the Pentecostal schools and then for many years in the Catholic schools. He supports the proposed Term 17 and opposes the amendment we are now debating. Clearly, the Pentecostal spokesperson who appeared before the committee opposing the new Term 17 did not speak for him.

The Hon. the Acting Speaker: I regret to inform the honourable senator that his speaking time has elapsed. He may continue if there is unanimous consent. Is there unanimous consent?

Hon. Senators: Agreed.

Senator Stanbury: Is the Honourable Roger Grimes not at least as credible a spokesperson for his minority and the members of other minorities who elected him as well as the government of which he is a responsible cabinet minister?

Senator Rompkey told this chamber the other day of his experiences in his home province of Newfoundland and Labrador. He has heard from Roman Catholic people in his district telling him that the Roman Catholic spokespersons do not speak for them and that they want the new Term 17 to proceed.

Mark Graesser, a professor of political science at Memorial University in Newfoundland and Labrador, who specializes in the analysis of public opinion, told the committee of surveys he has conducted in Newfoundland and Labrador on the question of denominational education. Mr. Graesser told the committee that, of all the surveys he had ever conducted, he had never seen anything close to unanimity among Catholics or Protestants on this issue.

What evidence is there that the hierarchy of the religious denominations better represent the views of their respective groups than do the people whom they have elected to represent them? Remembering that 95 per cent of the population are members of religious minorities, can we say that we would be protecting these minorities by passing an amendment that we know will defeat the purpose of the constitutional proposal and unfavourably affect the rights of certain groups among them?

I believe, honourable senators, that contrary to what Senator Doody would suggest, when you look carefully and dispassionately at the new Term 17, it does protect denominational education rights of the protected minorities.

Senator Doody's amendment is not only unnecessary, but it would also defeat the purpose of the whole constitutional amendment and remove the provisions that currently protect some minorities.

Senator Doody: Would the honourable senator receive a question?

Senator Stanbury: Surely.

Senator Doody: During his dissertation, the well-intentioned but unfortunately misinformed senator reasoned that, since minorities in Newfoundland constitute only 95 per cent of the total population, then the total population must reflect the opinion of the minorities. Could the senator elaborate on that?

I had thought that minorities were those people whose voting capacity or whose political and civic impact was sufficiently small as to need the protection of constitutional protection. By the reasoning of my friend, since they are part of the whole, it should be the whole opinion that should be respected and there is no role for the minority.

Additionally, in his preamble, the senator said that he was reluctant to advise or to interfere with the educational policies of another jurisdiction. I think that is absolutely correct.


I agree with that, and we all have said from time to time that education is certainly a provincial responsibility. However, this was never about educational problems. The province is quite capable of solving its educational problems, with some help from its friends. We are talking about here the protection of minority rights, rights that were enshrined in the Constitution of Canada at the time of Confederation to give protection to people whose life-style, habits, customs, and culture were somewhat different from those of the rest of Canada. That is what is now being proposed to be taken away. It is not an intrusion into the educational prerogatives of the Government of Newfoundland. Certainly that is their right and their responsibility, and I would not dream of becoming involved. However, when it comes to overriding rights that were guaranteed by a formal document signed on behalf of the people of Canada and the people of Newfoundland, then certainly I think we here in this chamber have a right to be involved, indeed, a responsibility and a duty to be involved.

Senator Stanbury: I appreciate Senator Doody's remarks, and I agree with them. As I indicated in my speech, it is very much part of our responsibility. Even though the responsibility for education is the responsibility of the province of Newfoundland and Labrador, I realize that we were necessarily pulled in because of the constitutional aspect.

I also appreciate that a great deal of emotion is involved in this issue. Therefore, I tried to approach it as a lawyer by interpreting the actual wording rather than the wording that is thrown about as people express their emotions.

Obviously, Newfoundland and Labrador is made up of many minorities. I was enquiring whether there was any evidence that the majority of any minority is opposed to Term 17.

Senator Doody: Yes, there is.

Senator Stanbury: I see no evidence of the majority of any minority clearly indicating that. The hierarchy of the religious organizations have indicated that they are opposed, but hierarchies have certain vested interests that are not necessarily-

Hon. Senators: Oh, oh!

Senator Stanbury: What is the definition of a "vested interest?".

Senator Lynch-Staunton: You just gave it to us. You are saying that it is: "Ignore our religious leaders."

Senator Stanbury: Am I answering Senator Lynch-Staunton's questions or Senator Doody's?

Senator Rompkey: What happened to individual rights and freedom of speech?

Senator Stanbury: I am saying that I have seen no evidence that the majority of any minority is opposed to Term 17.

Senator Doody: If I could impose on the patience of the Senate for just another minute, I would ask just one more question. This deals with the work of the committee in Newfoundland, which was quite remarkable in the evidence that it brought forth, not only from the hierarchy of the various denominations there, but from the parents, from the school children, from people who drove 600 or 700 miles to express their opinions. Literally, some of them cried for the protection of their rights and to have their children educated in the style, manner and moral envelope in which they had been raised themselves. They said that this was their right and that it had been guaranteed to them by the people of Canada. These people came in at their own expense, taking time off work to fly or drive to our committee hearings. Every afternoon there were line-ups of walk-ons in front of our microphones. Some of them spoke for as long as they were allowed, which was five minutes, and others not quite so long, but there was no questioning the sincerity and the passion they had about the way their lifestyle would be disrupted in the name of what my friends opposite call economic improvement.

I doubt that there will be economic improvement. That has not been demonstrated. There is no doubt in my mind, sir, and I am asking you if you can show me otherwise, that the vast majorities of the people of the Pentecostal, Roman Catholic, and Seventh Day Adventist faiths want to educate their children in the way that they have been educated, within the same moral envelope.

Hon. Charlie Watt: Honourable senators, throughout this debate, I have listened carefully to the concerns expressed by senators respecting minority rights within Newfoundland and Labrador as well as to those expressed about the Labrador Inuit and the aboriginal people of that province. My intention is to have a clearer understanding of the issue before us today.

Since 1982, when the Constitution was patriated, aboriginal people have had constitutional recognition under the British North American Act. That recognition is different from the recognition that existed prior to 1982. I had a great deal to do with section 35 being entrenched within the Constitution. It recognized the Indians, the Métis, and the Inuit. I always understood that particular recognition in the Constitution required a further definition. In other words, further work needs to be carried out at the legislative and constitutional levels. I always understood that to be unfinished business.

This proposed amendment deals with minority rights related to church institutions and education, but I would remind honourable senators that some minorities have not been mentioned today, namely, the Inuit of Labrador and the Métis.

This leads to me to the question: What is of overriding importance? Is it more important to have a church organization play a role, to have constitutional protection under the Constitution of Canada, or is it more important to conclude the unfinished business related to section 35 of the Constitution? Although the provincial government is the authority which is responsible for education, it also has a fiduciary responsibility for aboriginal people. In other words, they are in a trust position.

In 1949 when Newfoundland entered Confederation, there were slight differences in terms of provincial recognition of aboriginals. The other provinces were clear in their recognition of aboriginal people, but in Newfoundland that recognition was more relaxed.

When the time comes for the aboriginals to deal with the Newfoundland government, will they be equipped? Will the Government of Newfoundland and Labrador be equipped to deal with those aboriginal people if they have to deal with aboriginal educational matters? Will the aboriginals be better off to remain as part of a religious group because they are constitutionally protected as a religious minority. Looking at it from my experiences in dealing with educational matters and negotiating educational rights, I am unclear as to what would be the best course of action. I dealt with the Government of Canada and the Government of Quebec.

In this case, if things were left as they are, would the Inuit have to negotiate with the religious institutions before they could work out an arrangement with the Government of Newfoundland? If that is the case, how far will they go? It seems to me that the Newfoundland government is not equipped to deal with the aboriginal people if the constitutional amendment is not passed.

I thought it was important to raise that point because no one has raised it thus far. What will happen to the rights of the Inuit, the Métis and the Innu minorities?

Senator Kinsella: Does Senator Stanbury have an answer?

Senator Stanbury: Senator Rompkey is the sponsor of the bill.

Hon. Bill Rompkey: I would like to make a comment, Your Honour. May I have your guidance on the protocol here?

The Hon the Speaker pro tempore: This is directly analogous to the situation that arose earlier. If Senator Rompkey speaks now, I would be required to say that if the honourable senator speaks now, it would have the effect of closing the debate. Obviously, I must be consistent. When Senator Rompkey does close the debate, he may address the remarks of any senator at that time.

Hon P. Derek Lewis: Are we not dealing with the amendment?

Hon. B. Alasdair Graham (Deputy Leader of the Government): We are dealing with Senator Doody's amendment. Senator Stanbury spoke today on Senator Doody's amendment.

Hon. Noël A. Kinsella: We are now on Senator Stanbury's time. His speech has been given. We have time because leave was given to extend it. Honourable senators are now entitled to ask Senator Stanbury for explication of his speech. That is the stage we have reached.

Senator Rompkey: May I ask Senator Stanbury a question, Your Honour?

The Hon the Speaker pro tempore: We are on the amendment and not on the main motion. With leave, Senator Rompkey may make a brief reply if asked. That would be up to Senator Stanbury.

Senator Graham: To make it perfectly clear, indeed, if Senator Stanbury, who was the last main speaker on the amendment, were willing to entertain a question directly from Senator Watt or Senator Rompkey or from any other honourable senator, it would be perfectly in order to do so.

Senator Rompkey was the sponsor of the main resolution. He can also speak on the amendment of Senator Doody.

Senator Doody: Was Senator Stanbury the last speaker or only the latest speaker?

Senator Graham: As honourable senators know, a number of speakers on both sides of the chamber wish to participate in the debate.

Hon. Philippe Deane Gigantès: Honourable senators, may I ask a question of Senator Doody?

Some Hon. Senators: No!

Some Hon. Senators: Order!

Senator Doody: I would be delighted to try to answer, but I think it is unprecedented.

Senator Gigantès: It is an important issue.

Senator Doody: I am sure it is. You would not be here if it were not.

The Hon the Speaker pro tempore: Order, please.

The motion in amendment is in the name of Senator Doody. If Senator Doody speaks, he would, in fact, close the debate.

We just resolved a similar situation. According to rules 35 and 36, closing the debate includes questions, answers and statements.

Senator Stanbury now has the floor. Let us see what he does with it.

Senator Stanbury: I thought Senator Watt was making a speech on the amendment. If he has a question, I am not sure I can answer it. I would ask that he repeat the question to the committee.

An Hon. Senator: The bill has already been to committee.

Senator Stanbury: Then we should send it back to committee. Otherwise, I would pass on the opportunity to respond to one of the sponsors, Senator Doody, on the amendment or Senator Rompkey on the bill, during their own speeches. That is the proper place for response to such a question. It requires far more research and knowledge than I have available.

Senator Doody: That did not slow you down before.

Senator Stanbury: I have done my research. I obtained my knowledge and was quite shocked at what I found.

Senator Lynch-Staunton: You were the lawyer last time.

Senator Stanbury: I believe I have answered the question to the best of my ability. We can proceed with the next speaker.

Senator Kinsella: I have a question for Senator Stanbury who pointed out that he analyzed this important matter from a legal perspective. That is most helpful.

This issue has been raised here by Senator Stanbury and others: Who speaks for the Catholic church? As a lawyer, what is the honourable senator's understanding of the term, "corporation sole"?" Who is the "corporation sole" in Newfoundland and Labrador?

Senator Graham: Joey Smallwood.

Senator Stanbury: I wish Senator Kinsella had been with us as a member of our legal committee as we struggled with that subject over the years. I will not even touch it.

Senator Kinsella: It is my understanding that, as far as the Roman Catholic Church is concerned, in its act of incorporation, the corporation sole is the Roman Catholic archbishop.

Senator Stanbury: Honourable senators, I was not talking about the Roman Catholic Church or any other particular organization; I was talking about the minorities - the people. The corporation sole does not speak for the people and their personal wishes and desires. There are many examples of members of the Roman Catholic Church who, while they respect the Pope and hold the proper attitude toward everything he says, do not do everything that he says they should do. I am talking about the people. I am not talking about church hierarchy.

Senator Kinsella: Would Senator Stanbury agree that the Terms of Union of Newfoundland and Labrador with Canada, of which Term 17 is one, speak to the constitutional compact that was entered into between the two parties at the time Newfoundland and Labrador became part of Canada? Is that Term 17 part of the constitutional compact? From a legal standpoint, are we or are we not dealing with an agreement that was put into the Constitution to describe the fundamental compact as adopted by the two sides?

Senator Stanbury: Honourable senators, I appreciate that Term 17 is indeed part of the Constitution. The new Term 17 would also be a part of the Constitution. However, I am not prepared to go back into the history and argue about whether it was a compact or some other form. I agree with you that it is part of the Constitution and, therefore, should be changed with great care.


Senator Kinsella: Would the honourable senator agree that the rights that are protected by the Constitution, the rights that accrue to the federal powers and to the provincial powers and, in this instance, those rights that accrue to classes of persons, are what is protected by the Constitution, and that the only way in which this can be changed is through the constitutional amending process pursuant to the rule of law? Furthermore, would he agree that, therefore, there ought not to be any reluctance on the part of any of the institutions that must play a role or exercise a duty, to use Senator Doody's terms, in fulfilling the rule of law in bringing about a constitutional amendment?

Yes, the House of Assembly of Newfoundland and Labrador has a role to play, just as the House of Commons and this chamber have a duty and a responsibility. If the rule of law is to be fulfilled, there is an amending process.

The debate that is taking place in this chamber is a debate of great importance because it is part of the constitutional amending process. Therefore, there ought not to be any reluctance, because we have this duty. I did note and understood my colleague's reference to the subject matter of education, which coloured the use of the term "reluctance" at the beginning of his speech.

I would remind honourable senators that it is the Minister of Justice, Mr. Rock, who, in speaking about the rule of law, says that it is a living principle that is fundamental to our democratic way of life. In substance, it means that everyone in our society, including ministers of government, premiers, the rich and powerful and the ordinary citizen alike, is governed by the same law of the land. We are all bound by the Constitution, by the Criminal Code, by Acts of Parliament and by the legislature.

That description of the rule of law by the Minister of Justice, of recent vintage, is well worth our consideration here.

Senator Stanbury: I do not have any difficulty in agreeing with everything that the honourable senator has said. I agree that we are having an extremely important debate. Otherwise, he and I would not have stood up to get involved in it, I am sure. I agree that it is important. I also agree that we have deep responsibilities. Our main responsibility is to express ourselves in the best way we can, in order to determine finally how we would resolve the situation.

We are going through a process that has been followed with great care all the way to this chamber, and no one had a real problem with it until it got to this chamber. We are giving it our sober second thought, as we should. Undoubtedly, we will have a considerable debate, and that is as it should be.

Senator Kinsella: If there are no other questions, I move the adjournment of the debate.

On motion of Senator Kinsella, debate adjourned.

Broadcasting Act

Bill to Amend-Second ReadinG-Debate Continued

On the Order:

Resuming the debate on the motion of the Honourable Senator Whelan, P.C., seconded by the Honourable Senator Losier-Cool, for the second reading of Bill C-216, to amend the Broadcasting Act (broadcasting policy).-(Honourable Senator Bolduc).

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, this particular item stands in the name of Senator Bolduc, but he has agreed that Senator Hervieux-Payette may speak today, and thereafter the matter will continue to stand in Senator Bolduc's name.


Hon. Céline Hervieux-Payette: Honourable senators, since I am no longer a member of the Standing Committee on Transport and Communications, having moved to another committee, I should like to express my concerns about Bill C-216, which may cause irreparable harm to the French-language cable distribution industry in Canada.

The distinct society concept is particularly apt here. The purpose of Bill C-216 may be praiseworthy as such and eminently desirable for provinces where the English language is used by the majority. The issues are both cultural and commercial. The market for French-language television is far too small and its viewers far too dispersed across Canada to withstand the impact of the passage of this bill.

The choice is not between business practices and francophone services, it is really between the existence or the demise of specialized francophone services.

In the absence of such services, francophone viewers in Quebec and other provinces will have access only to specialized services in English. Allowing such a situation to arise goes against the very concept of our duties as parliamentarians. And as such, I may remind my honourable colleagues of section 3(c) of the Broadcasting Act, and I quote:

English and French language broadcasting, while sharing common aspects, operate under different conditions and may have different requirements.

This means, honourable senators, that we have already recognized the principle that the French-language broadcasting system differs in its characteristics and needs from the English-language system. We have recognized the principle. It is now time to recognize what it means in practical terms.

Honourable senators, I am pleased that the Senate committee that will examine this bill will have an opportunity to go into the specific needs of Canadian francophone viewers. Representatives of this industry, who are mainly in Quebec, will then have an opportunity to express their views on the subject. I certainly hope that my honourable colleagues will carry out an informed and in-depth study of Bill C-216, keeping in mind the specific needs of francophone viewers.

It is important to ensure the viability of these French-language institutions adrift in a North American anglophone sea. Again, I think it is important to recall that section 3 of the Broadcasting Act provides for a different response to the needs of francophone and anglophone viewers. I therefore hope that Bill C-216 will be amended to that effect, and I also want to take this opportunity to say that, as a Quebecer, I am delighted to see that we have many French-language channels and programs and that we must preserve a privilege and advantage that most French-speaking countries do not have.

On motion of Senator Bolduc, debate adjourned.

Canada-European Union Relations

Report of Foreign Affairs Committee Study-Debate Continued

On the Order:

Resuming debate on the consideration of the second report of the Standing Senate Committee on Foreign Affairs (Special Study on European Relations), deposited with the Clerk of the Senate on July 18, 1996.-(Honourable Senator Bolduc).

Hon. Roch Bolduc: Honourable senators, I think that we have done a fine job on the whole and have completed what we had set out to do, hearing several testimonies and meeting with a number of officials from various countries in Europe.

The report tabled by the foreign affairs committee deals with three elements of the European Union activities: the security policy; defence matters; justice and domestic matters and EU economic issues and their impact on Canada.

Senator Stewart summed up the views of the committee on NATO and the expansion of the European Union very well. I would like to add to these remarks one question: Can Europe maintain peace at home? It is not at all clear, judging from what happened in the former Yugoslavia. We also know that, on a number of occasions in the past, Canadians have fought alongside American troops in the defence of freedom in Europe.

I will remind the honourable senators that, very soon, the strength of the American forces in Europe will be brought down from 300,000 to 100,000, which entails a substantial change in responsibilities in Western Europe. I should point out that our past presence did not guarantee us the goodwill of the Europeans in recent trade relations between us. I shall say no more on the subject of defence and security because it was well covered, I would say.

As far as legal and other issues relating to international crime are concerned, I can only hope that - failing broader agreements like those proposed in the action plan we had with the Europeans but which, unfortunately, did not materialize in June, as you know, our usual cooperative relations between police forces will continue.

I will now get back to the original purpose of the study, namely the impact on Canada of the European Union and its constantly changing face, because major changes occur every day in Europe. Western Europe is going through a radical transformation and the changes have been accelerating for the past five years. I would like to say a word on this.

First of all, it is obvious that Europe is mainly concerned with building its own economic bloc, even at the expense of other trading partners like Canada, a traditional partner. The competition from America and Asia is driving the Europeans to form an integrated domestic market to better compete with other trading blocs. There is nothing wrong with this per se, but the inevitable economic relations of a single market go beyond trade; they involve prices, currencies and interest rates, among other things. That is why the monetary union is being formed, but it is a test. And it is a true test of a federalization, whether or not it is desired in Europe. Is Europe moving toward federalization? They say prices will remain stable with a single currency or they will not, which is another possibility. Economic instability will stay at its current level, or it will get better or worse. That, too, is uncertain. It is clear that these factors will affect Canada's economic competitiveness significantly.

In fact, on the issue of European solidarity versus trade relations with Canada, either we have been too rigid on the issue of fisheries, or the Europeans have favoured unity over individual trade interests, for example between France, England and Canada, or between Germany and Canada. Suddenly a group of European countries does not want to say they are federalizing, because they say this type of union is too dominating and they want no part of it. They have adopted the German concept of federalism, so they say they do not want it, but that they want to be part of a monetary union.

The English and the Germans are very inward-looking in a way. When the time comes to establish trade relations with Canada, instead of thinking of bilateral interests, they prefer to support Spain, if it is discontent with its relations with Canada.

I feel the federal government did not correctly assess the impact of its fishery dispute with Spain. This will delay, for an indefinite period, any improvement in our trade and economic relations with Western Europe.

Either we try to promote the trade of goods and services with Europe, or else we act like privateers in isolated incidents. This is what we did, and I am not at all convinced that it was the right thing. I hope the Canadian government learned its lesson. Without being partisan, I feel we must take a hard look at the situation. Any neutral observer will see that we overreacted with the Europeans, without taking into account the interests of Canada as a whole. I realize this is an important issue for eastern fisheries and I do not deny it. However, this issue must be weighed against Canada's economic relations as a whole.

We will not be able to hide indefinitely from Canadians the negative impact of an action which, in my opinion, was not given adequate thought by our leaders. I would remind you that the Americans are making progress in their dealings with Europe and we are being left behind. This is unfortunate. I have no criticism of the negotiations of the Department of Foreign Affairs. It is doing its job. I do not want my comments to be interpreted as being merely partisan. However, I do think that we did not fully assess the impact of the decision to get involved in this dispute, and it is unfortunate that our economic relations with Europe are being delayed, including those in the marine sector, telecommunications, investment and financial relations. There are numerous areas in which our relations with Europe will become more difficult because of this dispute. It is unfortunate that we did not pay attention to this and that the Europeans have decided to form a common front, considering that we have important bilateral relations with Germany and England, among others.

On motion of Senator Grafstein, debate adjourned.

The Senate adjourned during pleasure.

Royal Assent

The Honourable Peter deC. Cory, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy Governor General, having come and being seated at the foot of the Throne, and the House of Commons having been summoned and being come with their Acting Speaker, the Honourable the Deputy Governor General was pleased to give the Royal Assent to the following bills:

An Act to amend the Standards Council of Canada Act (Bill C-4, Chapter 24, 1996)

An Act to amend the Canada Elections Act (reimbursement of election expenses) (Bill C-243, Chapter 26, 1996)

An Act to dissolve the Nipissing and James Bay Railway Company (Bill S-7)

The Honourable Pierrette Ringuette-Maltais, Acting Speaker of the House of Commons, then addressed the Honourable the Deputy Governor General as follows:

May it please Your Honour:

The Commons of Canada have voted certain supplies required to enable the Government to defray the expenses of the public service.

In the name of the Commons, I present to Your Honour the following bill:

An Act for granting to Her Majesty certain sums of money for the public service of Canada for the financial year ending March 31, 1997 (Bill C-56, Chapter 25, 1996)

To which bill I humbly request Your Honour's assent.

The Honourable the Deputy Governor General was pleased to give the Royal Assent to the said bills.

The House of Commons withdrew.

The Honourable the Deputy Governor General was pleased to retire.

The sitting of the Senate was resumed.

The Senate adjourned until Wednesday, October 23, at 1:30 p.m.