Debates of the Senate (Hansard)
2nd Session, 35th Parliament,
Volume 135, Issue 51
Thursday, November 7, 1996
The Honourable Gildas L. Molgat, Speaker
Thursday, November 7, 1996
The Senate met at 2:00 p.m., the Speaker in the Chair.
Hon. Joyce Fairbairn (Leader of the Government)
: Honourable senators, we
shall not be in session on Remembrance Day, when many of us will be attending
ceremonies in our home provinces. I would, therefore, take this opportunity to
honour the memory of those Canadians who so valiantly gave up their lives in the
two world wars, the Korean War and other conflicts. I would also thank all of
the men and women of our armed forces who represent our country as part of
peacekeeping efforts in troubled areas around the world.
More than 1.5 million Canadians served in the two world wars, and 116,000
lost their lives. It is extremely important to Canadians of all ages that on
Remembrance Day we keep their memory alive by honouring their courage, their
dedication and their sacrifice to preserve our peace, freedom and democracy.
Remembrance Day, honourable senators, also provides an occasion for veterans
to recount their stories. On that day, when Canadians attend memorial services
across the country, we not only pay tribute to those who did not return from
battle, but we also honour the veterans who did come back.
And with every passing year, it becomes increasingly important to keep their
Honourable senators, with every passing year there are fewer veterans to join
in the march; with every passing year there are fewer veterans to share
firsthand their experiences and their memories of the sacrifices of their
friends and comrades.
It is up to all of us to set an example for younger Canadians by ensuring
that the history of these veterans continues to be told and recorded. As
Canadians, we must preserve in our national memory the lessons learned from
those generations who defended our future.
In keeping these memories alive, honourable senators, this week the
government unveiled a multi-year project to erect a monument to aboriginal
veterans to recognize the extraordinary contribution of aboriginal Canadians in
the two world wars and the Korean War, as well as in Canada's peace operations.
This will create a new landmark celebrating aboriginal veterans.
In conjunction with this announcement, an Aboriginal Veterans Scholarship
Trust has been established to improve educational opportunities for young
Honourable senators, these aformentioned items were among the recommendations
made by our Senate Veterans Affairs Subcommittee, under the leadership of former
Senator Jack Marshall, which made such an outstanding study and report on this
Finally, honourable senators, it is up to all of us to support with diligence
the cause of peace wherever it is threatened in the world. To those who gave
their lives for us, we will never forget. To those who returned, and are left
with their thoughts of pride, courage and sadness, we offer our profound
Hon. Senators: Hear, hear!
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, it is something to remember each year at this time that the most
honoured warrior in the history of this world is the Unknown Soldier. He lies
near a gate to Westminster Abbey, in earth shovelled reverently from the Somme,
from Passchendaele, from Ypres, from Vimy - the great battlefields of the war
that was supposed to end all wars. There, kings and queens and emperors go to
lay their wreaths and speak of sacrifice and honour, a place to say with
At the going down of the sun and in the morning,
we will remember them.
In Canada, in this city, a great stone and iron monument stands as a national
memorial to the too many Canadians who perished in that First Great War and the
Second World War that followed it with indecent haste. Not far away, in the
Peace Tower that dominates this city, rests the Book of Remembrance, with the
roll call of the fallen. On Remembrance Day, trumpets sound, drums are beaten
and aircraft roar in salute, a place to repeat with John McRae:
To you from failing hands we throw
The torch; be yours to hold it high.
Failing hands? From the host who served Canada in the Second World War, over
460,000 survive. There are 19,000 left who fought in Korea. Of all the brave of
1914-1918, there are but 1,900 still among us.
It behoves us, honourable senators, to sustain such symbols and sounds of
tragedies that were victories and the honours that are due, but here in Canada,
that peaceable country for all of its honours in war, we are more likely to find
our most touching remembrances in humbler places and spoken in plainer words -
perhaps no anthem grander than another chorus of the Quarter Master's Stores, no
recollection more eloquent than "I remember" spoken at the tavern or
the Legion Hall.
Honourable senators, allow me to take a few moments to repeat one of the
finest examples of "I remember" from the Second World War. It was
included in a book by that remarkable diplomat, George Ignatieff, a book called,
of all things, The Making of a Peacemonger. He accompanied Mackenzie King
to Britain in 1941. He said:
The visit did not start off on a propitious note. As the high
commissioner's private secretary, I had made arrangements for an honour guard
to be at the Prestwick Airport and had promised the commanding officer that I
would signal the approach of the prime minister so that his men could present
arms. What I did not realize was that Mr. King would emerge not from a door
but from the bomb-bay of the converted Liberator in which he had crossed the
Atlantic. Not a rifle moved as the prime minister carefully lowered himself to
the ground and retreated from the aircraft, presenting his backside to the
Next to disembark was General Georges Vanier, at the time Mackenzie King's
military adviser. He had lost a leg in World War I, and though he managed
remarkably well with an artificial leg, he always carried a spare in case of
trouble. `Would you mind finding my spare leg?' he said to me as he left the
plane. He was followed by Norman Robertson, the under-secretary of state for
external affairs. When I asked Norman where I might find the general's leg, he
replied that I was shouting into his deaf ear and he couldn't tell what I was
saying. Jack Pickersgill, the prime minister's executive assistant and the
fourth member of the official party, turned out to be deaf in the other ear
and couldn't hear me either. It occurred to me that this strange delegation
was not likely to add anything other than confusion to an already confused war
Honourable senators, there were many confusions before that bloody war was
over, but we must never pack up all our troubles in our old kit bags. We must
never forget that the old and young men who were warriors, and the young women
who joined them in sharing the risks so eagerly taken, were like their country,
our country: young, determined and full of hope. I believe that is how they want
us to remember them.
Hon. Senators: Hear, hear!
Budget Cuts to Last Post Fund
Hon. Erminie J. Cohen
: Honourable senators, while we pause on November 11
to remember those who fought for our freedom and lost their lives defending the
values we hold dear, I am compelled to speak of the great disappointment many
veterans and many Canadians felt when they learned of further cuts to reduce the
deficit. The unkindest cut of all, honourable senators, was the reduction of
benefits to the Last Post Fund, the fund that provides burial benefits for
deceased war veterans whose personal assets are less than $24,030. Now burial
benefits are only available to veterans whose estates are worth less than
$12,015, and this sum includes, for the first time, I believe, the assets of the
Through the years, many veterans tucked away dollars to save for their
spouse's burial, always believing the Last Post Fund would look after them, the
least we could do for the many years they served us. I have recently been
witness to the dismay and hardship that this cut has caused veterans who, in
their eighties, could not comprehend why there was no money for their burials
when they could have saved dollars during their earning years had they known
this would happen. Surely the government could have found another program to cut
and leave those few dollars necessary to give our veterans the burials they
We are indeed living in unusual times when the dollar becomes more important
than the person.
Hon. Landon Pearson
: Honourable senators, as we remember those Canadians
who fought, suffered and died during the wars of this century, I should like to
commemorate, mourn and reflect upon a group rarely singled out for special
attention: the boy soldiers. During the First and Second World Wars, hundreds of
underage Canadians enlisted for service, mostly by pretending to be older. There
were others who were actually recruits following the tradition and practice
inherited from the British army. As a result, the Canadian army had so many boys
during the First World War that they were formed into boys' battalions. Although
they were supposed to remain in reserve, large numbers made their way to France,
and many were wounded and died. Others survived to grow up carrying traumatic
memories. These boys deserve respect for their courage and great compassion for
their untimely suffering and early deaths. These underage soldiers were only a
small percentage, of course, of all the Armed Forces engaged in the world wars.
However, since the end of the Second World War the nature of war has greatly
changed. Nowadays, more and more youngsters are being recruited or coerced into
warfare at younger and younger ages. On November 11, the United Nations General
Assembly in New York will discuss a report on the impact of armed conflict on
children, recently delivered to the Secretary-General by Mrs. Graça Machel.
This is a powerful document with a moving section on the tragedy of the child
soldier pressured into the most dangerous of activities and deprived, if he
survives, of anything that is natural to childhood and essential for his
development into responsible adulthood.
As Canadians, we must do what we can to change this practice, so heavy with
consequences to the children involved and to the rest of us who are vulnerable
to the irrational violence of young warriors whose only school has been
In order to maintain its influence on this issue, I believe that Canada must
join with other nations in supporting the optional protocol to the United
Nations Convention on the Rights of the Child, raising the age of recruitment
into the armed forces from 15 to 17. To fail to do so is to fail to honour the
sacrifice of our own soldiers - young and not so young - who died that we might
live in peace.
Hon. Raymond J. Perrault
: Honourable senators, earlier this week I had an
opportunity to meet with a group of aboriginal veterans. Today, it was announced
that a scholarship fund has been established for the descendants of aboriginal
vets. It was a very moving occasion to see these men - some quite old now, one
or two of them from the First World War - so moved that such a fund would be
In all the meetings and hearings in which I have been involved, I cannot
remember there being any great demand for massive compensation. There were
requests for respect, an acknowledgement that the veterans had made a
contribution and made a difference in the war.
If we look at the records of those who fought in the First and Second World
Wars, we find that those of aboriginal descent fought with uncommon valour and
had many medals bestowed upon them for bravery under fire. As one Indian veteran
said to me, "We were all equal on the battlefield. When we were stopping
bullets at Dunkirk and at the invasion of Europe, we were all equal. We had a
cameraderie of matchless proportions. But when we came back home, we were no
longer equal. We did not even have the right to vote."
It must be reiterated that John Diefenbaker gave the Indian and the
aboriginals the vote in this country, much to his credit and much to the credit
of the government of that day, which was of the other great historical party.
How we could have allowed this injustice to fester for so long is beyond belief.
In relation to the Second World War, it is only necessary to check the lists of
Canadian casualties at the time of the invasion of Europe to realize that an
almost disproportionately high percentage were veterans of aboriginal descent.
Some still maintained their traditional great scouting instincts and abilities,
and they had a special place in our Armed Forces because they had these special
I met with a group of veterans earlier in the week. They were not asking for
some massive settlement, but for an acknowledgement of the contribution they had
made towards Canada's greatness. The idea was to build a memorial here in
Ottawa, which would invite the contribution of all of us to help finance it. It
was a moving experience. At the end of the ceremony, sweetgrass was distributed
to the veterans who had survived the war, and others who had done what they
could to advance the cause of the Indian people.
Honourable senators, some of you read the article yesterday about the massive
number of deaths that occurred during the First World War: 300,000 deaths during
the first five days of the Somme campaign alone. In Vietnam, 30,000 died. The
publicity regarding the massive losses experienced in that tragedy was
I can recall one occasion when Lester B. Pearson was in Vancouver on a visit.
While addressing a small group of people in someone's living room, he said:
After one of the battles, no man's land was covered with the dead and the
dying. They were Germans, French, Canadians and all the rest. I said to myself
at the time: "Mankind was created for something far better than
Honourable senators, that is a good reason for us to pursue the traditional
Canadian initiative to keep peace in this world.
It was a great privilege and a pleasure to be with the aboriginal veterans
this week. On this issue, all sides of this chamber cooperated to produce that
report, which recommends action. It was a good report.
Hon. Senators: Hear, hear!
Hon. Marcel Prud'homme: Honourable senators, I certainly agree with
everything that was said by my honourable colleagues on both sides of the house,
on the occasion of Remembrance Day. I could make my contribution more personal
and explain that I have a reason to do so.
My brother, who was older than I, was a brilliant student in his last year of
college. In 1939, he did not hesitate for a moment in becoming a volunteer. He
did not wait for conscription to volunteer to fight. He was the eldest of a
large family and it broke my mother's heart forever. For the next 20 years, my
mother was never the same.
What I should like to say in homage to these people is something different. I
am thinking of all the courageous people who gave their lives, and the others -
the families that suffered; the families that were divided. However, I would
rather address some remarks to parliamentarians of today. I was once asked by a
student, right here in the Senate, while I was addressing a Comonwealth
students' association: How do you define war? The question came very
spontaneously. I replied: "War is often, if not always, the failure of
I am thinking today of all the hotbeds of tensions in the world. I wonder if
we parliamentarians of the day pay enough attention to the study, scrutiny and
analysis of what could bring about war again. These young pages, whom we welcome
so warmly here, may be called upon to go and fight on our behalf, because we
still have not found a solution.
Over the past six or seven years, I have reflected more on the future and my
role as a parliamentarian on Remembrance Day. That is one of the many reasons
why, for instance - and I think this is directly related - I defend
parliamentary relationships against public opinion. Parliamentary relationships
allow members of different backgrounds to know each other.
Senator Bosa, the current president of the IPU, knows that in the old days of
real tension, I went forward and created trouble for some of us, even with the
security services of Canada, by speaking with people from the so-called
"other side." Senator Perrault and I were in North Korea. You should
have seen what only one visit could do in North Korea for people who were
completely cut off from the rest of the world.
Sometimes we are hesitant and afraid about what people will say or do.
However, if we think we are doing the right thing, we should do it. We
parliamentarians of the day, who will not be called upon to fight, should pay
more attention to international affairs. We should have more understanding of
international affairs and should never hesitate to go to so-called
"forbidden" cities or places if we think it will enhance the
possibility of peace and understanding on the earth.
This is a good day on which not only to reflect and thank warmly and pray for
those who have sacrificed their lives for us and for our young people, but also
to remember our great responsibility. Every single one of us here, without
knowing it, could make a difference. We do not know where or when, but we could
make a difference. When we die, we should not be ashamed to have it said of us
that "At least he not only paid attention to those who died before, but he
did his duty in attempting to avoid a repeat of what had already taken
The Hon. the Speaker: Honourable senators, if that concludes the
comments in homage to our veterans, I propose that we stand for a minute of
silence in memory of those gallant Canadians who gave their lives for us.
Honourable senators then stood in silent tribute.
Hon. Jack Austin
: Honourable senators, as we are now well into the fourth
quarter of 1996, I believe we should take note of some of the key features in
the performance of the Canadian economy. Of course, the first of these is the
continuing success of the government and the Canadian economy in reducing the
government's own deficit, which has declined on an annual basis from some $45
billion at the end of the Mulroney government in 1993 to about $25 billion at
the end of 1996. The government is resolute in staying the course to a zero
deficit at about the end of this century. I am speaking about four more years.
This trend in deficit reduction signals a continuing shift in the structure of
Canadian expenditures away from the public sector and toward the private sector
as the prime mover of economic growth.
A second key feature is the record high level of business confidence and
growing consumer confidence in Canada. The reduction in interest rates to a
40-year low and mortgage rates to a 30-year low will lead to increases at the
rate of about 4 per cent annually in real household spending on consumer durable
goods such as new housing and new automobiles.
On interest rates, The Financial Post today reports that the five-year
mortgage rate dropped to a 31-year low of 6.95 per cent. Robert Fairholm, chief
economist at DRI Canada, is quoted as saying, "If you look at where Canada
is in terms of slack in the economy, you could still characterize rates as
high." Fairholm is also quoted as saying that real rates of return, that is
nominal interest charges minus the inflation rate, are now about in line with
historical averages. For example, three-month Treasury Bills now have a yield of
just below 2.9 per cent. With the inflation rate at 1.5 per cent, the real rate
of return is 1.4 per cent.
The Royal Bank of Canada's Economic Group estimates that the Canadian economy
is operating at about 3 per cent below potential. Thus, the third feature of the
Canadian economy at the end of 1996 is that monetary stimulus may be possible
without risking any upward push in the rate of inflation.
Also to be noted is that the unemployment rate is in the range of 9.5 per
cent, which is well above the economists' notion of a full employment level.
Therefore, Canada also has growth opportunities on the labour side without
stirring up inflation.
The Royal Bank projects Canadian economic growth to average 1.4 per cent in
1996, 3 per cent in 1997 and 3.5 per cent in 1998.
Senator Doody: How lucky are we?
Senator Austin: I will come to the employment creation figures.
Senator Doody: I was so delighted to hear that the unemployment
figures give us room for growth.
Senator Austin: Yes, in employment, of course.
Senator Doody: That is an incredible statement.
The Hon. the Speaker: Honourable Senator Austin, I regret to inform
you that your three-minute time period has expired.
Some Hon. Senators: Give him leave to continue.
The Hon. the Speaker: Is leave granted for Honourable Senator Austin
Hon. Senators: Agreed.
Senator Austin: The fourth feature is the remarkable growth in
Canada's exports to the United States and around the world. From 1991 to 1996,
the value of our exports nearly doubled. Our exports and trade are at record
levels. The Canadian government is projecting export growth in 1997 of 5.3 per
cent and in 1998 growth of 6.1 per cent. This compares to import growth of 4.8
per cent and 5.5 per cent respectively. The slack in the Canadian economy below
capacity is expected to be taken up in the next two years by housing, automobile
sales and business investment in new plants and equipment. Job increases of
255,000 in 1997 and 315,000 in 1998 are projected. The rise in the value of the
Canadian dollar relative to the U.S. dollar will stimulate consumer demand in
Canada, although it may also affect to some degree our export performance.
Finally, I come to the question of inflation as a necessary stimulus to
economic growth. This topic was addressed by Gordon Thiessen, Governor of the
Bank of Canada, in a speech in Toronto yesterday. As we have heard from Governor
Thiessen many times, the bank's primary policy is to emphasize a stable currency
in terms of price stability in the Canadian economy. The primary criticism of
this policy is that it condemns the Canadian economy to permanent
underperformance. Governor Thiessen completely rejects the thesis that inflation
is the necessary lubricant to economic growth. His core belief is that inflation
only fools people into believing that their money is more valuable than it
really is, therefore encouraging spending decisions that are misconceived as to
value and risk and therefore inevitably leading to distortions in the economy
requiring drastic remedial measures.
Honourable senators, this is not the end, only the beginning, of a great
debate on how to manage the growth of the Canadian economy in the next few
years. Can we achieve real growth without inflationary stimulus? What is the way
to enhance Canadian productivity? I will return at a future time to those
Hon. Jean-Maurice Simard
: Honourable senators, further to a statement I
made in this house on October 29 with respect to Bill C-216, The Toronto Star
in its edition dated Monday, November 4, 1996, in an article by David Vienneau,
published erroneous information. A member of the other place did likewise the
same day during Question Period. And again on Tuesday, November 5.
When I say erroneous information, I mean that Vice-President Fernand Bélisle
of the CRTC, at a meeting we had recently, never did any lobbying in support of
Bill C-216, as was reported by The Toronto Star and by Reform
Honourable senators, it is our duty to examine the bills that come before the
Senate and ensure that they have no negative impact and do not deviate from
their objectives. That is the case with Bill C-216. I intend to continue my
research by consulting with groups, individuals and government agencies,
whatever Reform Party members have to say about that, to determine how the bill
could be amended so as to make it acceptable to francophone Canadians and all
I even said, on October 29, that the intentions of the author of this bill
were praiseworthy and acceptable. I asked Fernand Bélisle, Vice-President of
the CRTC, for a meeting so that he could clarify some questions I had. Like a
good public servant, Mr. Bélisle agreed to my request. And he did not do any
lobbying in any way, shape or form.
Mr. Bélisle merely answered my many questions and later sent me the
requested documentation. It was not my meeting with Mr. Bélisle that convinced
me that Bill C-216, in its present wording, was a bad piece of legislation.
...after consulting experts in the field, after meeting with the
Fédération des communautés francophones et acadiennes du Canada, after
receiving and reading the letter of the Hon. Senator Gauthier on this issue,
and after meeting with the CRTC's top official, I came to the conclusion...
It seems to me that is sufficiently clear. So I cannot ignore these unfair
allegations regarding Fernand Bélisle, a dedicated and responsible public
I intend to continue my work on this bill. I fully intend to take part in the
debate as soon as my research has progressed.
Bill to Amend-Report of Committee
Hon. Sharon Carstairs
, Chair of the Standing Senate Committee on Legal
and Constitutional Affairs, presented the following report:
Thursday, November 7, 1996
The Standing Senate Committee on Legal and Constitutional Affairs has the
honour to present its
Your Committee, to which was referred Bill S-3, An Act to amend the Criminal
Code (plea bargaining), has, in obedience to the Order of Reference of
Thursday, May 2, 1996, examined the said Bill and now reports as follows:
Your Committee recommends that this Bill be not proceeded with further in
the Senate for the following reason:
This recommendation is based on your Committee's concern that Bill S-3
could infringe legal rights protected by section 11(h) of the Canadian
Charter of Rights and Freedoms by allowing an accused to be punished more
than once for the same offence.
The Hon. the Speaker
: Honourable senators, when shall this bill be read
the third time?
On motion of Senator Carstairs, bill placed on the Orders of the Day for
third reading at the next sitting of the Senate.
Report of Transport and
Communications Committee Requesting Authorization to Travel for Purpose of
Pursuing Study Presented
Hon. Lise Bacon
, Chair of the Standing Senate Committee on Transport and
Communications, presented the following report:
November 7, 1996
The Standing Senate Committee on Transport and Communications has the
honour to present its
Your Committee, which was authorized by the Senate on October 2, 1996 to
examine and make recommendations upon the state of transportation safety and
security in Canada and to complete a comparative review of technical issues
and legal and regulatory structures with a view to ensuring that
transportation safety and security in Canada are of such high quality as to
meet the needs of Canada and Canadians in the twenty-first century and to
present its final report no later than December 31, 1997, respectfully
requests that it be empowered to adjourn from place to place within and
outside Canada and to engage the services of such counsel and technical,
clerical and other personnel as may be necessary for the purpose of its study.
Pursuant to section 2:07 of the Procedural Guidelines for the Financial
Operation of Senate Committees, the budget submitted to the Standing
Committee on Internal Economy, Budgets and Administration and the report
thereon of that Committee are appended to this report.
The Hon. the Speaker
: Honourable senators, when shall this report be
taken into consideration?
Senator Bacon: Honourable senators, with leave of the Senate and
notwithstanding rule 58(1)(g), I move that this report be now adopted.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. John Lynch-Staunton (Leader of the Opposition): No.
The Hon. the Speaker: Honourable senators, since leave has not been
granted, we will get back to this later. Does the Senate agree to get back to
this matter later today?
Hon. Senators: Agreed.
Internal Economy, Budgets and
Twelfth Report of Committee
Hon. Colin Kenny
: Honourable senators, I have the honour to present the
twelfth report of the Standing Senate Committee on Internal Economy, Budgets and
Administration, regarding a proposal to extend benefits and entitlements to
individuals who are now on contract with senators.
I ask that the report be printed as an appendix to the Journals of the
Senate of this day.
(For text of report, see today's Journals of the Senate.)
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
On motion of Senator Kenny, report placed on the Orders of the Day for
consideration at the next sitting of the Senate.
Canada-Israel Free Trade Agreement
The Hon. the Speaker
informed the Senate that a message had been received
from the House of Commons with Bill C-61, to implement the Canada-Israel Free
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Graham, bill placed on the Orders of the Day for second
reading on Tuesday, November 19, 1996.
Trial and Imprisonment of Dissident
Wang Dan-Government Position
Hon. Consiglio Di Nino
: Honourable senators, before I ask my question I
should like to welcome the Leader of the Government in the Senate back to the
chamber. I trust that she is feeling better and I hope that we do not put too
much strain on her voice today.
Last week, Chinese authorities sentenced a courageous Chinese dissident to 11
years in prison. Wang Dan's only crime is to have dedicated his life to the
defence of human rights for himself and his fellow Chinese. This Chinese
government action has been universally condemned.
My question for the Leader of the Government in the Senate is this: Has the
Canadian government communicated with the Chinese government about this barbaric
act; and, if so, what did the communication contain?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
my recollection is that the Canadian government has expressed its views on this
matter. I should like to get an exact answer for my honourable friend.
Senator Di Nino: Honourable senators, the U.S. Secretary of State and
the German President have both stated publicly that they will raise this issue
with Chinese leaders when they visit China next month. Could we obtain a
commitment from you, Madam Minister, that the Canadian government will also
raise this issue with the Chinese authorities when the Prime Minister visits
China next month, and to report to this chamber?
Senator Fairbairn: Honourable senators, I will communicate the
question of my honourable friend to the proper people and obtain an answer for
I repeat what I have said on a number of occasions. The federal government,
through the Prime Minister, the Minister of Foreign Affairs and others,
continues to express its views strongly to the Chinese authorities on the
question of human rights abuses. I will pass my friend's question on to them.
Hon. Marcel Prud'homme: Honourable senators, I should like to ask the
Leader of the Government in the Senate if it is at all possible to obtain a
transcript of the trial that took place. In that way, senators could draw their
own conclusions of what took place in China concerning this trial.
Senator Fairbairn: Honourable senators, as I have indicated, the Prime
Minister and the government have expressed concern about the conduct of this
trial. I understand that there are plans to appeal the decision. I will try to
follow up my honourable friend's suggestion. I do not know whether it is
possible to obtain a copy of the transcript that he requests.
Atomic Energy of Canada
Sale of Nuclear Reactors to
China-Request for Details of Safeguards
Hon. A. Raynell Andreychuk
: Honourable senators, in order to save her
voice today, could the Leader of the Government in the Senate tell us at a later
date how this quiet diplomacy has borne fruit? Could she give us some examples
of areas in which it is felt that the initiatives of quiet diplomacy, as opposed
to a more aggressive stand on human rights, has paid off sufficiently for the
Canadian government to determine that the sale of nuclear reactors is acceptable
at this time?
With regard to the pending deal, what assurances are there that safeguards,
if any, will be included in the contract, beyond the assurances and safeguards
that were written into previous arrangements with Romania, India and other
Hon. Joyce Fairbairn (Leader of the Government): I will preface my
comments to my honourable friend by thanking colleagues on both sides of this
house for their expression of good wishes and goodwill yesterday. Those wishes
were sufficient to return to me what voice I have today, which was not there
yesterday. I thank all colleagues, particularly Senator Corbin.
On the question that my honourable friend has asked, I will seek to obtain a
written response for the honourable senator concerning the details of any
On the matter of a demonstration of response from the Chinese on our concerns
over their human rights conduct, my honourable friend already knows that one
area of discussion that has been opened up with the Chinese government is that
of the rule of law and the reform of the court system in that country. That is
one area that remains of great concern to Canada, and it remains a topic of
discussion between the two countries, as does the question of the training of
judges, in the hope that these continuing discussions will make a difference in
the court system in China.
I understand my honourable friend's concerns, and I will add anything else
that I can in writing.
Failure to Remove GST from Reading
Materials-Effect on Underprivileged-Government Position
Hon. Consiglio Di Nino
: Last week, the Minister of Finance made an
announcement about the removal of the Goods and Services Tax on books for
certain institutions, educational and municipal. What he did not tell us is that
most of those books already had large rebates attached to them.
Honourable senators, the ability of Canadians to read in today's high-tech
world is critical to their competitiveness, and Mr. Martin's announcement will
do little to help the hundreds of thousands of Canadians who are not attending
schools yet are still confronted with the challenge of advancing their skills.
By failing to remove the GST on all reading materials, Mr. Martin has not
recognized the needs of these Canadians to improve their reading skills.
Can the Minister who has special responsibility for literacy acknowledge that
the government, by not taking this action, is denying these Canadians an
opportunity to improve their economic conditions and quality of life?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators,
I have repeatedly shared my concerns about the tax on books in this country.
However, I disagree with my honourable friend's comments regarding the statement
made by the Minister of Finance. The scope of that statement extended beyond
learning institutions to public libraries and also to volunteer organizations
such as those involved in the field of literacy.
The minister made very clear his commitment, and the commitment of the
government, to the issue that my friend and I share as a cause, and he and I
will continue to discuss additional ways in which objectives can be met.
Senator Di Nino: Honourable senators, I agree that the minister has
shown a dedication to this cause, which I both respect and appreciate. However,
by way of supplementary, Madam Minister, as the minister with special
responsibility for Literacy, do you support the removal of the GST on reading
Senator Fairbairn: Honourable senators, I have always supported the
removal of the GST on reading material. I also operate as a partner with my
colleague the Minister of Finance on this issue. He has worked very hard, very
diligently and certainly cooperatively to make the advances that he has made. He
is operating within a certain framework that involves constraints. He went a
considerable way in his efforts, as detailed in his announcement approximately
three weeks ago. I support those efforts, and I will work with him to further
advance the cause of literacy.
Senator Lynch-Staunton: Martin helped write the Red Book.
Senator Doody: He got the Pulitzer prize for fiction.
Delayed Answers to Oral Questions
Hon. B. Alasdair Graham (Deputy Leader of the Government)
senators, I have a response to a question raised in the Senate on May 11, 1995
by the Honourable Senator Spivak regarding an oriented strandboard plant in
Saskatchewan; a response to a question raised in the Senate on December 5, 1995
by the Honourable Senator Spivak regarding federal environmental assessment of
forestry projects; a response to a question raised in the Senate on June 13,
1996 by the Honourable Senator Spivak regarding cuts in funding to the
experimental lakes area; a response to a question raised in the Senate on
October 30, 1996 by the Honourable Senator Jessiman regarding the failure of the
Canada-European Union action plan; a response to a question raised in the Senate
on October 21, 1996 by the Honourable Senator Gustafson regarding crop loss in
the prairies due to an early snowfall; and a response to a question raised in
the Senate on December 12, 1995 and again on November 5, 1996 by the Honourable
Senator Balfour regarding the sale of Airbus aircraft to Air Canada.
Oriented Strandboard Plant in
Saskatchewan-Extension of Environmental Review to Cover Downstream Effects in
(Response to question raised by Hon. Mira Spivak on May 11, 1995)
The Canadian Environmental Assessment Act applies in situations
where agencies and departments of the government of Canada have a direct
decision-making responsibility. With respect to the projects mentioned by the
Honourable Senator, there are no identified federal decisions required which
would trigger the Canadian Environmental Assessment Act.
Environmental assessment of the projects is being conducted under the
respective provincial legislation. Technical experts of federal departments
are participating in the provincial processes.
This government recognizes the concerns that have been raised with respect
to the transboundary and cumulative effects of the projects proposed in this
region. The Minister of the Environment has been assured that there are
ongoing discussions between Manitoba and Saskatchewan on the effects of
forestry projects in the respective provinces.
Federal Environmental Assessment of
Forestry Projects-Government Position
(Response to question raised by Hon. Mira Spivak on December 5, 1995)
The Canadian Environmental Assessment Act applies in situations
where agencies and departments of the Government of Canada have a direct
decision-making responsibility. With respect to the Louisiana Pacific forest
industry development project, there are no identified federal decisions
required which would trigger the Canadian Environmental Assessment Act.
An environmental impact assessment of that project has been conducted under
the Manitoba Environment Act with public hearings by the Manitoba Clean
Environment Commission. Manitoba's hearings on the project were completed in
January and the commission's report was submitted to the Manitoba Department
of the Environment on March 22. Federal departments participated in the
provincial public review process.
The former Minister of the Environment wrote to her provincial colleague
indicating that if, at the conclusion of the provincial process there remain
significant adverse environmental effects related to areas of federal
jurisdiction, she would then have to consider the potential federal role in
addressing the outstanding issues.
The Manitoba Department of the Environment has issued a licence for this
project which sets out terms and conditions for the proposed forest harvesting
activities. The Minister of the Environment reviewed these terms and
conditions carefully as they relate to areas of federal jurisdiction and
decided not to refer this project to a public review.
Cuts in Funding to Experimental
Lakes Area-Government Position
(Response to question raised by Hon. Mira Spivak on June 13, 1996)
The original Program Review cuts to the Department of Fisheries and Oceans'
freshwater science program were based on the premise of complete devolution of
the department's habitat management responsibilities to the inland provinces.
With the devolution of habitat management responsibilities, there would no
longer be the need to continue providing freshwater science in support of the
department's habitat management role in the inland provinces. However, since
the original Program Review decisions were made, the department's fish habitat
management role in the inland provinces has changed. The department will
continue to have a significant role in the review of large development
projects with the potential for serious environmental impacts. This change,
along with broader reaching federal science initiatives and the loss of Green
Plan funding in 1997 prompted the Minister to re-evaluate the original Program
Review cuts to his department's freshwater science program. The Minister
decided that the original cuts were too deep and he announced a re-allocation
of $1.8 million to the budget for fish habitat and other freshwater research.
The $1.8 million adjustment to the freshwater science program will result
in 23 more jobs than would have been the case under the original Program
Review Plan. While the freshwater science program will be reduced by
approximately 40%, matching the overall departmental reduction level, a
critical mass of scientists will be maintained within the freshwater science
program at the department's Freshwater Institute. The funding adjustment will
allow projects to continue at the Freshwater Institute's Experimental Lakes
Area and permit new experiments to be devised consistent with the department's
continuing freshwater science mandate. It should be noted that there was never
any danger of the Freshwater Institute closing as a result of the originally
planned Program Review cuts to the freshwater science program as freshwater
science is only one component of the work conducted at the Institute.
Failure of Canada-European Union
Action Plan-Refusal to Repeal Coastal Fisheries Protection Act-Government
(Response to question raised by Hon. Duncan J. Jessiman on October 30, 1996
The fisheries bill tabled in Parliament on October 3, 1996, provides for
the integration of the Coastal Fisheries Protection Act into the new Fisheries
The provisions introduced by Bill C-29 relating to high seas enforcement
are simply being transferred from one piece of legislation to another, and the
net legal effect in this regard is neutral.
Canada remains firmly committed to conclusion of an action plan with the
Canada remains open to European suggestions on how to finalize the action
plan, or indeed, any other approach to consolidate the transatlantic
Destruction of Crops by Early
Snowfall-Aid to Prairie Farmers-Government Position
(Response to question raised by Hon. Leonard J. Gustafson on October 21,
As of October 25, 1996, approximately 90-95 percent of the harvest was
complete across the Prairies. By province, the percentages are as follows:
Manitoba - is completed; Saskatchewan - 95 percent; and Alberta - 85 percent.
Despite the recent storms, production this year will come in at 65.1
million tonnes - a record harvest. The previous record of 62.1 million was set
in 1986. Weather conditions have delayed the harvest somewhat, but overall,
this year's harvest is only ten percent later than what it has averaged over
the last ten years.
The federal and provincial governments assist producers across Canada with
significant financial protection against weather related crop losses, through
government safety net programs. The Federal-Provincial Crop Insurance program
is specifically designed to protect producers against crop losses, such as
those that occurred in the Prairies. It provides direct compensation to
insured producers for yield and quality losses which can result in reduced
In addition to Crop Insurance, most producers participate in the Net Income
Stabilization Account (NISA) program. NISA encourages producers to build up
funds for use in periods of difficulty, by matching producer contributions on
a dollar for dollar basis and by providing a three percent bonus each year a
producer's contributions are held on account. The funds in a producer's NISA
account can be drawn on if revenues, due to weather related (or any other)
losses, fall below the five year average. Currently, prairie producers have
over $1 billion in their NISA accounts.
As well, the Minister of Agriculture and Agri-Food may authorize the
Canadian Wheat Board to make advance payments for unthreshed grain. The
legislation states that this decision can be taken no sooner than November 15,
Naturally, the ideal would be that the whole crop be harvested this fall.
Should this not be possible, existing safety net programs are in place to
assist with the losses which could result.
Sale of Airbus Aircraft to Air
Canada-Alleged Conspiracy to Defraud Federal Government-Knowledge of Government
Ministers-Request for Particulars
(Response to question raised by Hon. R. James Balfour on December 12, 1995)
The Solicitor General became aware that the letter of request had been sent
on November 9, 1995.
Bill to Amend-Third Reading
On the Order:
Resuming the debate on the motion of the Honourable Senator Bryden,
seconded by the Honourable Senator Stollery, for the third reading of Bill
C-42, to amend the Judges Act and to make consequential amendments to another
And on the motion in amendment of the Honourable Senator Nolin, seconded by
the Honourable Senator Doody, that the Bill be not now read a third time but
that it be amended:
(a) in clause 4 on page 3:
(i) by replacing line 13 with the following:
approval of the Council.,
(ii) by replacing line 15 with the following:
granted pursuant to subsection (1), the chief, and
(iii) by deleting lines 23 to 31; and
(b) in clause 5, by replacing lines 11 to 45 on page 4 and lines 1
to 35 on page 5 with the following:
56.1 (1) A judge on leave of absence granted pursuant to subsection
54(1) may, with the approval of the Council granted pursuant to subsection
(2), perform judicial or quasi-judicial duties for an international
organization of states or an institution of such an organization and may
receive in respect thereof reasonable moving or transportation expenses and
reasonable travel and other expenses from the Government of Canada.
(2) Where a judge requests a leave of absence pursuant to subsection 54(1)
to perform judicial or quasi-judicial duties for an international organization
of states or an institution of such an organization, the Council may, at the
request of the Minister of Justice of Canada, approve the undertaking of the
Hon. John G. Bryden: Honourable senators, clause 5 of Bill C-42 is an
amendment of general application regarding international activities of Canadian
judges. Its purpose is to clarify the terms under which judges can engage in
activities abroad, such as technical assistance projects in developing
countries. It would change the existing law by allowing judges who participated
in such activities, with the authorization of Canada, to receive expenses
directly from an international forum. It would also establish a framework within
which judges could, with the authorization of Canada, work for an international
organization of states or an institution thereof. Such a judge could, with the
approval of the Governor in Council, and after consultation with the chairman of
the Canadian Judicial Council, request a leave of absence without pay in order
to be paid directly by the international organization.
Honourable senators, during the consideration of Bill C-42 in this chamber
and in the Standing Senate Committee on Legal and Constitutional Affairs,
certain concerns were expressed about the implications for judicial independence
of certain aspects of clause 5. It has become evident that, in order to obtain
passage of this bill without further delay, the government will need to agree to
amend clause 5 so as to restrict its application to one specific case: that of
Madam Justice Arbour, who is presently serving as prosecutor to the
International War Crimes Tribunal.
Senator Lynch-Staunton: Illegally, too.
Senator Bryden: After discussions with senators opposite, we have
agreed to such an amendment, in preference to the amendments proposed by the
Honourable Senator Nolin. The amendment that I am tabling today would limit
clause 5 to authorizing Madam Justice Arbour to take a leave of absence for the
purpose of serving as the chief prosecutor to the UN War Crimes Tribunal for the
former Yugoslavia and Rwanda. It would also permit her to take leave without pay
and to receive salary and expenses directly from the UN in connection with her
services as chief prosecutor. In other words, by this amendment, clause 5 would
cease to be a general amendment to cover the use of Canadian judges for
I would add that yesterday the Minister of Justice wrote to the Canadian
Judicial Council to see if they had any objection to such an amendment. The
council replied, saying that they had no objection to that type of provision.
Motion in Amendment
Hon. John G. Bryden
: Honourable senators, therefore I move that Bill C-42
be not now read the third time, but that it be further amended as follows:
1. Page 1, preamble: Strike out line 1 and substitute the following:
WHEREAS the Canadian Judicial Council has been consulted with respect to
certain provisions of this Act, particularly section 5, and agrees with the
purpose of section 5;
NOW, THEREFORE, Her Majesty, by and with the advice and
Pages 4 and 5, clause 5: Strike out lines 11 to 45 on page 4 and
lines 1 to 35 on page 5 and substitute the following:
56.1 (1) Notwithstanding section 55, Madam Justice Louise Arbour of
the Ontario Court of Appeal is authorized to take a leave from her judicial
duties to serve as Prosecutor of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia and of
the International Tribunal for Rwanda.
(2) Madam Justice Louise Arbour may receive moving or transportation
expenses and reasonable travel and other expenses, in connection with her
service as Prosecutor, from the United Nations.
(3) Madam Justice Louise Arbour may elect to take a leave of absence
without pay for the purpose described in subsection (1), in which case she is
not entitled to receive any salary or allowances under this Act for the
duration of the leave, but may receive remuneration from the United Nations
for her service as Prosecutor.
(4) If Madam Justice Louise Arbour elects to take a leave of absence
without pay under subsection (3), she shall not continue the contributions
required by section 50 for the duration of the leave and that section does not
apply to her for the duration of the leave, which duration shall not be
counted as time during which she held judicial office for the purposes of
sections 28, 29 and 42.
(5) For the purposes of subsections 44(1) and (2), section 46.1 and
subsection 47(3), if Madam Justice Louise Arbour dies while on a leave of
absence without pay, she is deemed to be in receipt at the time of death of
the salary that she would have been receiving if she had not been absent on
leave without pay.
Honourable senators, I have copies for distribution.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion in amendment?
Hon. Pierre Claude Nolin: Honourable senators, I have had the
privilege of examining the wording of the amendment proposed by Senator Bryden.
I must admit that I support it, and if it is approved by this house, I shall
therefore withdraw my motion.
Honourable senators, all of us in this house have examined this bill
introduced by the government with a great deal of interest. I believe I speak
for all of us in saying that the questions raised during study of this bill
turned out to be far more basic than originally expected. I believe this is one
of the reasons the government has agreed to introduce this amendment.
The independence of the judicial branch is one of the elements that it is the
duty of all Canadian parliamentarians to protect and defend. The independence of
our judges is one of the last bulwarks in the respect of this country's
democratic values. All of us in this house have attempted to find the best
solution, given the national and international realities with which Canada is
faced, and I therefore believe we must support this amendment.
On this side, it has never been our wish to prevent Canada from meeting its
international responsibilities; far from it. We have, however, been faced with a
conflict of jurisdiction. How can we settle these conflicts when Canadian
constitutional rules contradict those of international authorities? We have had
to examine the pros and cons, and I believe the compromise submitted is a valid
one. Madam Justice Arbour must be able to put her abilities at the service of
all people in the world who believe in the respect of democratic values and who
are working to ensure that respect.
As Senator Bryden has said, in drafting this compromise, we suggested that
the new clause 5 of the bill be submitted to the Canadian Judicial Council, for
obvious reasons. We feel it is appropriate for any changes to the Judges Act to
obtain the approval of the Canadian Judicial Council. As I have already told you
in the past, this creation of the Parliament of Canada is a highly useful
entity, one we must make use of. It is a group of judges responsible for the
proper administration of the judiciary power in Canada. We felt it was
appropriate, and feel that it would be appropriate in future as well, for the
Canadian Judicial Council to intervene in any modifications to be made to the
I believe I have covered the important elements of the amendment proposed
today. I suggest you adopt it. If it is passed, I will withdraw my motion in
Hon. A. Raynell Andreychuk: Honourable senators, I should like to
voice my support for the amendment that Senator Bryden has put forward. Since
this issue came before the Senate, we have come to agree that this is not merely
a housekeeping bill. Many things in the bill are good and necessary.
One might argue why an an increase of $3,000 for chief judges should be
brought to this Parliament for scrutiny. The Constitution demands it. It is not
the dollar amount that is important. What is important is that there be this
kind of parliamentary scrutiny and that there be a buffer between the executive
arm of the government and the judiciary.
When I read the bill, I felt that it was appropriate in most places but for
clause 5, which would violate judicial independence. In my opinion, it is a
constitutional issue, a judicial independence issue, but it also has to do with
Canada's integrity in international fora. As to judicial independence, I agree
with what Senator Carstairs said, that the government must retain overall
responsibility for the welfare of Canada, particularly the financial aspects.
However, it would be wrong if the government had the final say on how the courts
are administered, which is the judicial independence aspect. That is why we
strived for 30 years to have a judicial council that would act as a buffer
between the executive arm and the judicial arm. I think it is working relatively
well. It needs to be improved, but the concept of the judicial council looking
into the administrative matters of the courts is extremely important.
The original clause 5 circumvented the judicial council, the buffer, for
judges assigned to the international field. I did not hear many voices -
although there were some notable exceptions - indicating that judges should not
contribute to Canada's welfare in international issues. For example, Senator
Fairbairn talked about assigning judges to China to help them understand the
rule of law. That is a commendable and important role that Canadian judges can
The issue is not whether judges should be involved in international fora. The
issue is how and when. Such action should not compromise our independent
judiciary, and we must ensure that we do not violate our own laws in the
process. What kind of example would we be to the Chinese and the rest of the
world if we were to break our own laws?
Without the amendment put forward by Senator Bryden, that implication would
remain there in the bill. Consequently, I respect the fact that the government,
after hearing the comments made in this chamber, has chosen not to impose a
generic rule, has restricted it to Madam Justice Arbour, and has withdrawn the
proposal for a general application of the rule to a further time.
I have been led to believe that there were some consultations with the
judicial council before the bill was drafted, but I have no idea of what those
consultations involved. I believe the review of what is an appropriate task in
an international forum must rest with the judicial council. In this case, given
the preamble that has been added in clause 5, I am presuming that the judicial
council has done its job and, in fact, is agreeing to Madam Justice Arbour's
role in the prosecution of war criminals. I also presume from the preamble that
we are indicating that, at this point, we have weighed judicial independence
with Canada's contribution to, and reputation in, international fora and feel
that this is a good compromise.
I have no idea how Justice Arbour got to Europe. I have no idea how the
judicial council viewed her role. It is important, however, that from this point
on, Canada's integrity not be jeopardized and that we have, in fact, now
complied with the rules.
Is this a reasonable answer to the questions that we have raised? I think it.
Is it the most ideal? I am not sure it is. I would have hoped that the rules
were in place and that we were not entrapped by a specific example before us.
However, the fact of the matter is it was a fait accompli when it arrived here.
Madam Justice Arbour had accepted in some manner her position, although it was
not made clear to us under what terms and conditions.
We have been told she is there under an Order in Council. I think both of
those issues should be left to other environments to determine their propriety.
What happened before the bill came here, I believe, may be the subject of some
discussion before other bodies and institutions.
We were left with the conundrum of supporting Canada, its international
reputation and humanitarian laws, while being asked to violate judicial
independence and section 100. With this amendment we have found a reasonable
compromise to ensure that our internal laws are abided by and, at the same time,
that we live up to our international obligations.
I hope that we have learned a lesson from this experience, that we are not
setting a standard of proof for other countries, that we are not going overseas
with muddied hands, that the Canadian Judicial Council, the Government of
Canada, and particularly the Minister of Justice - who is responsible for
justice in this country, a very high and onerous task - will reflect upon this
exercise that we have gone through. If we are to have judges go overseas on
leaves in similar situations and in unique situations, I hope that the judicial
independence of judges will be respected, that the judicial council will conduct
a full and adequate review of the issue involving not only Chief Justices who
sit on the council but also the judges whom the Chief Justices represent, and
that the department and the minister will involve the public at large before
they establish any broad rule.
I could say many other things on this issue, because it is important and dear
to me that we keep our reputation as unblemished overseas as it is in Canada.
I can only reiterate the words of the Honourable Charles Dubin in his recent
decision on the issue of Mr. Justice Isaac and Mr. Thompson of the Department of
Justice. I think the report was circulated to all senators. The report is
entitled "Report on Communications Between Justice Officials and the
At page 31 of the report, the Honourable Charles L. Dubin, QC, LLD, states:
The preamble to our Constitution declares that one of the principles upon
which our Canadian democratic society is founded is the supremacy of the rule
of law. But the rule of law is not a law in itself, it is an ideal. Over the
centuries since the time of Aristotle, people have sought to be governed not
by the rule of a tyrant or of an unruly mob, but to be governed by the rule of
law, a law equally applicable to the powerful and the weak, the rich and the
poor, without discrimination.
Since the rule of law is not a law in itself, it is dependent upon
acquiescence and not force. It is premised on the proposition that once an
issue has been resolved, and after all legal recourse has been resorted to,
the decision will be acquiesced in, leaving it to those who are dissatisfied
to seek, by legal and democratic means, to change the law, or the way the law
is administered if they think it unjust.
However, our justice system can function only so long as it continues to
have the confidence of the public it was designed to serve. Public confidence
in the administration of justice is essential for its efficacy. That
confidence cannot be assumed. It must be earned.
To have that confidence, the public must be assured of the impartiality of
the judge. That impartiality can only be ensured if the judge is completely
independent. Independence of the judiciary is not a perk of judicial office,
or something to appeal to the vanity of the judge. It is there to guarantee
Honourable senators, I think this amendment will effectively withdraw the
generic element of clause 5. Therefore, we have maintained confidence in our
judicial system, and have not violated the rules or the Constitution. More
important, by narrowing this provision to Justice Arbour, I think we will send
her overseas with that impartiality, so that those who may be judged before her
will truly understand what an impartial system gives to their system. Those who
will be preoccupied with the outcome, the victims in Bosnia and Rwanda, will
know that justice can be served within the rule of law. I support the amendment.
Hon. Dalia Wood: Honourable senators, I wish to state my concerns for
the record. To begin with, I am pleased the government has tabled an amendment
to the bill regarding the international use of Canadian judges. This amendment
deals with some of my concerns. However, I am of the opinion that the amendment
does not go far enough. Clause 3 of Bill C-42 should also have been amended to
reflect Parliament's continued commitment to judicial independence and to the
public's perception of judicial impartiality.
The timing of this judicial pension reform provision could not have been
worse. The Chief Justice of the Supreme Court and his wife appear to be the only
current beneficiaries of such a reform. The fact that this reform is taking
place months before the Supreme Court is to rule on the Minister of Justice's
secession references is completely unacceptable.
The public's perception of the Chief Justice's impartiality could be tainted,
as many Canadians will ask themselves: How can anyone who stands to gain
hundreds of thousands of dollars in pension benefits remain impartial and
independent? How can the citizens of the province of Quebec be expected to take
the Supreme Court's ruling seriously when its Chief Justice has just been
granted such a benefit?
Honourable senators, I wonder how the Ministry of Justice, when drafting this
bill, could have overlooked this direct threat to judicial independence, the
cornerstone of judicial impartiality? Professor Ted Morton, who testified before
the Standing Senate Committee on Legal and Constitutional Affairs when it
considered Bill C-42, wondered the same thing.
With clause 3, we are tinkering with one of the most fundamental pillars of
our justice system. Judicial independence is more than a simple rule - it is a
doctrine that was put into place to ensure that the public could have faith in
the judges who are sitting in judgment of them and of their cases. We should not
be so quick to toss such historical protections aside for the sake of a few
individuals. It is for these reasons that, if this matter comes to a vote, I
The Hon. the Speaker: Senator Nolin, are you asking that your
amendment be withdrawn?
Senator Nolin: Honourable senators, I will withdraw my amendment if
Senator Bryden's amendment is approved. I will let you decide how to go about
The Hon. the Speaker: Honourable senators, the best thing would be for
you to ask that your amendment be withdrawn now.
Senator Nolin: I ask that my amendment be withdrawn.
The Hon. the Speaker: Does the Senate agree to let Senator Nolin
withdraw his amendment?
Hon. Senators: Agreed.
The Hon. the Speaker: Honourable senators, we have before us the
motion in amendment from the Honourable Senator Bryden. Do you wish me to read
An Hon. Senator: Dispense.
The Hon. the Speaker: Does any other senator wish to speak on this
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, before we pass to the vote, I should like to point out that once again
the Senate has come to play the role that it was thought it should play when it
was incorporated, that of a chamber of sober second thought. This bill went
through the House of Commons in less than half a day on June 18 of this year.
Parliamentarians over there were in a rush to get home. This bill was properly
put before the House. The government quite properly insisted it be passed, and
the opposition, quite improperly, passed it without any study, any thought,
anything except their concerns about meeting travel plans for the summer.
Fortunately, members on both sides looked at the bill in June and said
"Let us look at it again in the fall." Here we are today, with a
government realizing that it had challenged certain constitutional safeguards.
Whether it has admitted that or not, it certainly has agreed to a major
amendment to this bill, an amendment that, all of us agree, improves the bill
and settles one particular case that has proved to be an embarrassment to all of
us. The government should have proceeded that way in the first place. That was
its decision at the time. Fortunately, the Senate of Canada has been able to
bring to this bill changes that should have been incorporated in the original
Honourable senators, I think we have reason to be proud of our contribution
to the parliamentary process. At the same time, we should deplore the lack of
responsibility shown by the opposition in the other place.
The Hon. the Speaker: Honourable senators, does any other Senator wish
If not, the question before the Senate is the amendment proposed by Senator
Bryden, seconded by Senator Milne, that Bill C-42 be amended by replacing -
Senator Graham: Dispense.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion in amendment by Senator Bryden?
Hon. Senators: Agreed.
Motion in amendment adopted.
The Hon. the Speaker: Honourable senators, we are now back to the main
motion. Does any honourable senator wish to speak on the main motion as amended?
Hon. Anne C. Cools: Honourable senators, old soldiers do not die. They
do not even fade away. They just come back again and again.
I wish to speak to the main motion as amended, particularly to the few issues
that I thought were important and that have not been addressed by the government
in the discussion today.
Further to my speeches of October 1 and October 27, 1996, I shall now
continue to uphold the principles of judicial independence, the public's
interest in judicial independence, parliamentary sovereignty and the
independence of senators and Parliament.
Bill C-42, clause 3, called the Lamer amendment, states:
Subsection 44(3) of the Act is replaced by the following:
(3) No surviving spouse is entitled to receive more than one annuity under
(4) No annuity shall be granted under this section to the surviving spouse
of a judge if before, on or after July 11, 1955, the surviving spouse married
the judge after the judge ceased to hold office.
Clause 3 allows a judge's spouse to collect more than one pension when the
judge's spouse is also a judge. The Department of Justice informed me that there
is only one such judicial couple, Chief Justice Antonio Lamer, Supreme Court of
Canada, and Madam Justice Danielle Tremblay-Lamer, Federal Court of Canada Trial
Division, that they were married in 1987 and that Justice Tremblay-Lamer was
appointed judge on June 16, 1993.
Honourable Senators, I shall review the opinion of Canada's leading academics
on Canada's judiciary on clause 3 of Bill C-42. Professor Peter Russell,
recently retired from the University of Toronto and author of the famous book The
Judiciary in Canada: The Third Branch of Government, said:
It is very troubling that a main beneficiary of the change is the chief
justice. That raises questions of whether there was any communication between
him and the government. I think the public deserves some answers.
Professor Russell also queried:
What public good is being served by the change? One pension is enough for
any Canadian and any Canadian judge. Two is one too many.
Professor Christopher Manfredi, political scientist, McGill University,
opined that the Lamer amendment should not apply to judges currently on the
Bench. He concluded:
That is the only way to avoid the impression of impropriety.
Professor Guy Laforest, political scientist, Laval University, on this clause
It is imprudent ... to smooth out Lamer's pension, ...
These academics are reported in an article "All In the Family: Rock's
Amendments to the Judges Act Seem Tailor-made for Lamer and Arbour,"
by Peter Verburg in the Alberta Report, October 28, 1996.
On October 17, 1996, Professor F.L. (Ted) Morton, political scientist,
University of Calgary, testified at the Senate Committee on Legal and
Constitutional Affairs on this Bill, that:
Without imputing any illicit motive to anyone involved in these changes, I
must observe that the timing of this proposed change could not be worse. The
pension change is before the Senate at the very time that Mr. Rock is
proceeding to the Supreme Court with a reference...it invites the charge that
the pension benefits that would accrue to the Chief Justice, or more probably
his wife, payments that could be in the millions of dollars, compromise the
requirement of the appearance of impartiality.
...Sceptics can, and I suggest will, claim that it is unacceptable for a
Chief Justice who is about to benefit from Mr. Rock's proposed pension policy
change to also sit in judgment on Mr. Rock's Quebec reference, the most
politically sensitive constitutional case of this decade.
Professor Morton continued:
...behind the `technical amendments' of Bill C-42 there appears to be a
series of questionable judgments and indiscretions.
These four scholars of the judiciary were unanimous. They condemned Bill
C-42's clause 3, all on like ground, that of judicial independence, judicial
impartiality, and the public perception of the Supreme Court of Canada.
Honourable senators, Canadians are anxious about Canada's future as a nation.
Minister of Justice Allan Rock's press release of September 26, 1996, announced
his plan to refer "fundamental legal questions concerning Quebec's
secession from Canada to the Supreme Court of Canada". In the House of
Commons on that same date, Minister Rock said that he would put three questions
to the court, because the Supreme Court was the proper forum to make these
decisions, because these issues must be "raised in the place where they are
best resolved: in the highest court of the land." Anticipating the Supreme
Court decision, Minister Rock said:
I have every confidence that the courts will endorse and accept the
position that I have put forward.
I repeat: The minister told us that the Supreme Court will support and accept
his position. Simultaneously, Bill C-42 enhances the powers, position and
personal benefits of Chief Justice Antonio Lamer of that very same court.
Honourable senators, as we await the Supreme Court's decision, I thought we
should search history for guidance and review the last constitutional reference
to the Supreme Court of Canada, being the 1981 Patriation Reference made by then
Liberal Prime Minister Pierre Elliott Trudeau. The question he referred was the
repatriation of the British North American Act by resolution for joint address
to Her Majesty Queen Elizabeth.
A decade later, in 1991, Mr. Trudeau spoke on the Supreme Court decision with
candour, reflection and retrospection. The occasion of this remarkable speech
was the opening of the Bora Laskin Law Library at the University of Toronto in
1991. Mr. Trudeau spoke frankly and unreservedly about that 1981 decision.
Speaking as a former prime minister, an eminent constitutional lawyer and
jurist, he described it as "the fateful Supreme Court decision on the
patriation of the constitution." He described it as the Supreme Court's
"performance as political arbiter." Mr. Trudeau provided a thorough
critique of the majority decision in the patriation references by Supreme Court
Justices Jean Beetz, Julien Chouinard, Brian Dickson, Ronald Martland, Roland
Ritchie and Antonio Lamer from Quebec, now Chief Justice of the Supreme Court.
He told that the reasoning of the dissenting justices Willard Estey, Bora Laskin
and William McIntyre was the "...better law,...the better common
sense,..." and "...was...also the wiser council." His speech was
an insightful and brilliant piece of work and provides welcome assistance to the
study of recent developments in this country's body politic and judicial
institutions. Mr. Trudeau explained the differences between justiceable and
non-justiceable questions. He distinguished between those questions for judicial
consideration and those for parliamentary consideration. He distinguished the
judicial role of the courts from the political role of Parliament, saying:
Courts had often in the past refused to answer questions deemed unsuitable
for judicial determination.
About the Supreme Court's answers to certain questions, Mr. Trudeau said:
In choosing to answer the question there is little doubt that the Supreme
Court allowed itself - in Professor Hogg's words, `to be manipulated into a
purely political role' going beyond the lawmaking functions that modern
jurisprudence agrees the court must necessarily exercise.
About the Supreme Court's "purely political role," Mr. Trudeau
...this court was intent on pressing the political players to accept as
binding a rule that only politicians can create and that only the political
process should sanction.
He noted that the majority judges yielded to politics, but that the minority
judges did not. He said:
By refusing to go beyond its role as interpreter of the law, the minority
avoided the temptation to which the majority succumbed, that of trying to act
as political arbiter at a time of political crisis. While there are no doubt
differing views of how well the court performed this role in the Patriation
Reference, it is not a role to which a court of law striving to remain above
the day-to-day currents of political life should aspire.
Mr. Trudeau said that such is not a role to which a court of law "should
aspire." This had been the practice and custom of Canadian jurists. Mr.
Trudeau said that, in succumbing to that political role, the majority judges:
...blatantly manipulated the evidence before them so as to arrive at the
desired result. They then wrote a judgment which tried to lend a fig-leaf of
legality to their pre-conceived conclusion.
Mr. Trudeau warned of the dangers of the court interposing "...itself as
a mediator in a political battle...", particularly between a federal
government and a provincial government, and the consequences thereof. Mr.
Trudeau told us that "...Canada's future would have been more assured"
without the Supreme Court's 1981 majority decision.
Mr. Trudeau informed us, sadly, that the Supreme Court's decision had had
dire political consequences, one being that it granted Quebec - then governed by
a separatist government as it is now - "...a lever to pry itself out of the
Canadian constitutional family."
Honourable senators, those were Mr. Trudeau's thoughts.
Mr. Trudeau spoke extensively on constitutional conventions, which are rules
made by politicians and are dependent on political institutions. They are not
laws to be enforced by the courts. Constitutional conventions are rules
regulating the exercise of the discretionary powers of the Crown and Parliament.
Mr. Trudeau told us that:
...conventions are enforceable through the political process, the courts
should not have engaged even in declaring their existence.
Mr. Trudeau was definitive that constitutional conventions are not the
business of the courts and that the courts should leave their creation,
modification and enforcement, "...to the politicians, who...are in sole
charge of conventions".
Judicial independence is one such constitutional convention that is central
to Bill C-42. Judicial independence is that rule of politicians that protects
the judiciary from political interference in judges' decision-making processes.
Bill C-42's clause 3 raises a spectre over judicial independence in general and,
at this time, over the Supreme Court of Canada in particular. Chief Justice
Antonio Lamer, in the 1991 case R. v. Lippe, stated:
...judicial independence is but a `means' to this `end'...judicial
independence is critical to the public's perception of impartiality.
Honourable senators, I move now to Bill C-42, clause 2(3) and clause 6, known
as the Strayer amendment. Bill C-42 creates a Canadian Judicial Council seat for
Justice Barry Strayer of the Federal Court of Canada, who is also Chief Justice
of the Court Martial Appeals Court, and provides him with an additional $5,000
tax free unaccountable hospitality allowance as enjoyed by the judicial council
Honourable senators, I inquired about the sources of the Strayer amendments.
Mr. Harold Sandell, legal counsel, informed my office that Justice Strayer and
the Chief Justice Antonio Lamer both wrote to the Minister of Justice requesting
Justice Strayer's addition to the judicial council with the representational
allowance. Since the opinion of Chief Justice Lamer was secured, I wonder why
the opinion of Justice Strayer's own Chief Justice, Mr. Justice Julius Isaac,
was not sought. The senate committee was told that Justice Strayer spent three
months in Hong Kong performing a non-judicial function from October 1 to
December 31, 1989, by the authority of Order in Council #1989-1855, of September
I do not know how true this is, but I am informed that he is currently in
Hong Kong again. Mr. Justice Strayer appears to be firmly connected to the
executive and legislative functions of government and, honourable senators, I do
believe some restraint is needed.
Honourable senators, I wish to relate an historical experience of the Senate.
In May-June 1989, Justice Strayer of the Federal Court of Canada Trial Division
judged the case of Southam Incorporated and Charles Rusnell v. the
Attorney-General of Canada, the Senate, Senate Standing Committee on Internal
Economy, Budgets and Administration, Her Majesty the Queen. The particular
issue was the right and power of a Senate committee to control its own
proceedings. The Senate Internal Economy Committee had declined to admit
Southam's Ottawa Citizen news reporter, Charles Rusnell, to the
committee's in camera meeting. Mr. Rusnell disliked that and sued the
Senate and the Senate committee. The issue before Mr. Justice Strayer was
whether the Federal Court had jurisdiction to review, in Justice Strayer's
words, "...the manner of exercise of parliamentary privileges" in the
Senate by the Senate's committees and by senators. Justice Strayer ruled that
the Federal Court of Canada had such jurisdiction. Further, concluding that
since both the Senate and the Senate committee were not themselves sueable
entities, he ruled that the individual senators were and, consequently, that
individual senators, as members of the Senate committee, should be sued
privately to provide a newspaper reporter with a remedy against individual
senators. Justice Strayer ruled that Southam and Charles Rusnell "...should
be entitled to sue the individual members of the Senate Committee...". I
repeat that the newspapers could sue "those senators who were members of
the committee at the time in question." Justice Strayer, in granting this
remedy to reporter Charles Rusnell, said that the senators were:
...seemingly taking pride in the fact that the meetings of this Committee
are always held in camera and it is fair to assume that, in the absence
of some judicial determination inconsistent with that practice, such will
Justice Strayer justified his expansion of the court's jurisdiction and his
reach into the Senate, saying:
... the adoption of the Charter has fundamentally altered the nature of the
Canadian Constitution.... Thus our Constitution...is no longer "similar
in principle to that of the United Kingdom."
Honourable Senators, on appeal, Mr. Justice Frank Iacobucci of the Federal
Court, Appeal Division, on August 23, 1990, overruled Justice Strayer's judgment
Strayer J. was of the opinion that courts had such a jurisdiction...the
sweep of Strayer J....is rather wide.
He overruled Justice Strayer's reach into the Senate's exercise of its own
privileges and powers and control of its own proceedings. Justice Iacobucci
...the review of parliamentary proceedings is not a matter to be taken
lightly given the history of curial deference to Parliament and respect for
the legislative branch of government generally.
Prior to Justice Iacobucci's overrule, however, Justice Strayer's judgment on
parliamentary privilege had already been adopted in the case of CBC v. Arthur
Donahoe, Speaker of the Nova Scotia House of Assembly. Justice Hilroy Nathanson,
Nova Scotia Supreme Court Trial Division ruled in the New Brunswick
Broadcasting Co. Ltd. et al. v. Donahoe et al case on May 25, 1990
against parliamentary privilege. This too, was mercifully later overruled.
Parliament's privileges were upheld. At that time, in 1989, many honourable
senators, like myself, viewed Justice Strayer's reach as a serious breach of
Parliament's privileges and a contempt of Parliament. Senators' wise counsel,
restraint, and magnanimity prevailed such that no parliamentary contempt action
was initiated against Justice Strayer. The members of the senate committee whom
Justice Strayer ruled could be sued included then Senate Speaker, Senator Guy
Charbonneau and Senator Roméo LeBlanc, now Governor General of Canada, whose
Royal Assent Bill C-42 now seeks.
Honourable senators, consideration of Bill C-42 has revealed the phenomenon
of judicial self-activated legislation, which is a threat to judicial
independence. The Canadian public expects that its judiciary restrain from
political activity. Judicial independence provides that judges not trench on the
decision-making process of Parliament. This convention is supported by the
political doctrine of institutional comity, which compels that the
Constitution's institutions, being the executive, Parliament, and the judiciary,
must work in harmony and in comity. Such breaches to constitutional comity are
troubling and harmful to the administration of justice in Canada, and
particularly to the constitutional convention, judicial independence. Bill C-42
undermines judicial independence and judicial impartiality. Parliament must
protect the public, the judiciary, and judicial independence, and especially the
supremacy of Parliament.
I am pleased, honourable senators, that the government has yielded on Bill
C-42. I wish the government had amended some other clauses. It would have made
me very happy. However, as Senator Lynch-Staunton said, the point has been made.
The point has been made very strenuously that the Department of Justice must not
send any more so-called technical housekeeping bills here which they expect to
be passed without due Senate consideration.
The Hon. the Speaker: Does any other honourable senator wish to speak?
It was moved by the Honourable Senator Bryden, seconded by the Honourable
Senator Stollery, that this bill be read the third time as amended. Is it your
pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read third time and passed, as amended.
Foreign Extraterritorial Measures
Bill to Amend-Third Reading
Hon. Lise Bacon
moved the third reading of Bill C-54, to amend the
Foreign Extraterritorial Act.
Motion agreed to and bill read third time and passed.
Bill to Amend - Second Reading
On the Order:
Resuming debate on the motion of the honourable Senator Bosa, seconded by
the honourable Senator Adams, for the second reading of Bill C-35, an act to
amend the Canada Labour Code (minimum wage).
Hon. Thérèse Lavoie-Roux: Honourable senators, allow me to take a
minute of your precious time to share a few thoughts on Bill C-35, an act to
amend the Canada Labour Code (minimum wage), at second reading.
This is a simple housekeeping bill that will align the federal minimum wage
rate with the general minimum wage rates established from time to time by the
provinces and the territories. Cabinet would, however, retain the authority to
establish a minimum wage rate that can apply to employees on a provincial or
territorial basis and that differs from the rate set by a province or territory.
This provision of the bill is somewhat embarrassing, but the clause-by-clause
study of the bill will probably provide an opportunity to clarify this
provision, which does not seem consistent with the very spirit of the law.
In Canada, most workers are employed by businesses that are subject to the
labour codes of their respective provinces. Only a small percentage of the
population, representing about 700,000 workers, work in interprovincial or
international industries that are subject to federal labour legislation. Take
for example the people who work in industries such as air transportation,
freight transportation, rail transportation, broadcasting or banking and certain
federal Crown corporations.
The federal minimum wage has remained at the same level since 1986, $4 an
hour. I think one can wonder why this rate is the lowest in the country. This
bill will ensure it is in line with the minimum wage rate in effect in the
province or territory where the work is performed. As a result, the minimum wage
rate will be increased by anywhere from 75 cents to $3, depending on the
province. The amendment is based on the principle that provincial minimum wage
legislation reflects local market conditions and regional economic realities.
We agree with the thrust of this bill. I believe that it will affect only a
small number of people. There are not many people in the categories I mentioned
who are paid minimum wage. If the government really wants to address an issue of
far more interest to low income people, it should look at levels of
unemployment. It should also look at concrete measures it could implement to
alleviate the poverty that many of our fellow citizens face today.
As of September, more than 1.5 million Canadians were officially out of work.
Canada's jobless rate jumped to 9.9 per cent in September from 9.4 per cent in
August. The number of unemployed soared by 78,000 and the number of jobs fell by
47,000. Over the past year, there have been jobs for fewer than half of the
Canadians entering the labour force. This is a serious problem.
The youth unemployment rate is around 17 per cent. Four hundred and three
thousand young Canadians are out of work. Needless to say, the rate is even
higher in Quebec. I do not know the rate in Newfoundland and other provinces.
In conclusion, honourable senators, my colleagues and I support Bill C-35. In
fact, we are surprised that the issue was not settled sooner. Now that it will
be done, I hope the government will target with more energy and determination
the issue of job creation, and that it will not forget the concrete measures
needed to fight poverty.
In its most recent report, the Canadian Council on Social Development
estimated that one Canadian in six lives in poverty. That amounts to 16 per cent
of the country's population, or 4.8 million children and adults. Are we going to
be satisfied with this small improvement, which will make it easier to align
provincial and federal minimum wage rates? I come here rather regularly, but I
never hear about poverty. Moreover, it has been a long time since we had before
us any measure to improve the plight of our poor. Given that there are 4.8
million poor people in a society such as ours, we are certainly justified,
beyond the party lines, in asking ourselves certain questions and in trying to
convince the government to take action.
We support Bill C-35 as a positive measure, albeit a marginal one in
comparison with the much more drastic initiatives to which I just alluded
regarding unemployment, job creation and the major problem of poverty that
affects too many Canadian families.
The Hon. the Speaker: Honourable senators, does any other honourable
senator wish to speak on this matter?
Hon. Peter Bosa: Honourable senators -
The Hon. the Speaker: If the Honourable Senator Bosa speaks now, his
speech will have the effect of closing the debate on second reading of Bill
Senator Bosa: Honourable senators, I am sure all of us agreed with the
remarks made by Senator Lavoie-Roux when she spoke about employment, the
creation of jobs, the plight of the unemployed and, in particular, unemployed
youth. However, this bill is very specific and is designed to increase the
minimum wage rate.
Having said that, I move that this bill be referred to the Standing Senate
Committee on Social Affairs, Science and Technology.
Motion agreed to and bill read second time.
The Hon. the Speaker
: Honourable senators, when shall this bill be read
the third time?
On motion of Senator Bosa, bill referred to the Standing Senate Committee on
Social Affairs, Science and Technology.
Report of Transport and
Communications Committee Requesting Authorization to Travel for purpose of
Pursuing Study Adopted
The Senate proceeded to consideration of the sixth report of the Standing Senate
Committee on Transport and Communications, presented to the Senate on November
Hon. Lise Bacon: Honourable senators, at the beginning of the session
I presented the sixth report of the Senate Transport and Communications
Committee requesting authorization to incur special expenses in accordance with
the directives governing the funding of Senate committees. I now ask that this
report be adopted.
The Hon. the Speaker: Is that agreed, honourable senators?
Hon. Senators: Agreed.
Motion agreed to and report adopted.
Changes to School System-Amendment
to Term 17 of Constitution-Report of Committee-Motion in Amendment-Debate
On the Order:
Resuming the debate on the motion of the Honourable Senator Rompkey, P.C.,
seconded by the Honourable Senator De Bané, P.C., for the adoption of the
Thirteenth Report of the Standing Senate Committee on Legal and Constitutional
Affairs (amendment to the Constitution of Canada, Term 17 of the Terms of
Union of Newfoundland with Canada), deposited with the Clerk of the Senate
on July 17, 1996;
And on the motion in amendment of the Honourable Senator Doody, seconded by
the Honourable Senator Kinsella, that the Report be not now adopted but that it
be amended by deleting the words "without amendment, but with a dissenting
opinion" and substituting therefor the following:
with the following amendment:
Delete the words in paragraph (b) of Term 17 that precede
subparagraph (i) and substitute therefor the words: "where
And on the sub-amendment of the Honourable Senator Cogger, seconded by the
Honourable Senator Bolduc, that the motion in amendment be amended by
substituting for the words "with the following amendment:" the words
"with the following amendments: (a)" and by removing the
period at the end thereof and adding the following words:
(b) Delete the words "to direct" in paragraph (c) of
Term 17 and substitute therefor the words "to determine and to
Hon. Michael Kirby: Honourable senators, I rise today to continue the
debate on the proposed amendment to Term 17 of the Terms of Union of
Newfoundland with Canada.
Let me say at the outset of these remarks that my interest in this issue is
both deep and intensely personal. My mother and father were both born and
educated in Newfoundland. Virtually all of my relatives still live in
Newfoundland. In fact, among my many family members who are Newfoundlanders are
my Uncle Lorne Kirby, who was until recently the principal of the high school in
Harbour Grace, and my Uncle Fred Kirby, who served as secretary to the 1967
Royal Commission on Education and Youth in Newfoundland.
That royal commission strongly recommended that the Department of Education
in Newfoundland be reorganized on a functional rather than a denominational
basis. Indeed, the integrated school system, which currently combines the
Anglican, Presbyterian, United Church and Salvation Army schools, came about as
a direct result of the royal commission to which my Uncle Fred was secretary.
I make note of this personal history today because I want the record to
reflect that I know, from my own family history, how long the education debate
has been going on in Newfoundland.
I also want to note in passing my personal involvement in the issue of
constitutional change in this country. During 1980 and 1981, I was the senior
public servant in charge of the constitutional negotiations that saw our
Constitution patriated and the Canadian Charter of Rights and Freedoms included
in the Constitution. If I did not understand what a constitutional right was
before I had that job, I certainly did afterwards, particularly as it applies to
minority rights in the education field. My education in that period also taught
me the arguments for and against the concept of "where numbers
warrant" in the context of an educational right.
Honourable senators, it is against this personal background of long-time
involvement in Newfoundland, in the Constitution, and in the issue of minority
rights that I make my comments today.
I have followed the debate in this chamber with great interest. Stripped of
political rhetoric and side issues, the proponents of the proposed Term 17 have
made five arguments in favour of their position: The first is that the
Newfoundland school system is in need of reform; the second is that the needed
reform can only come about as a result of the proposed constitutional amendment;
the third is that because the legislature of Newfoundland voted for this
amendment to Term 17, and because this amendment affects an area of provincial
jurisdiction, namely, education, the Parliament of Canada has no choice but to
rubber-stamp this proposal; the fourth is that because the majority of
Newfoundlanders voted for this amendment in a referendum, the Parliament of
Canada should rubber-stamp the proposal; the fifth argument is that because the
procedure leading to the process was fair, in that minorities who would be
affected by the amendment had a chance to be heard before the amendment was
finalized, Parliament should, therefore, pass the proposed amendment to Term 17.
Honourable senators, virtually every proponent of the proposed amendment to
Term 17 has made at least two or three of the five arguments that I have
outlined. I would like to deal with each of these five arguments in succession.
After that, I want to say a few words about Senator Doody's "where numbers
Honourable senators will not be surprised when I say that it will take me
more than 15 minutes to make my case. I hope, therefore, that senators will
allow me to complete my remarks because I believe this is a very important
issue, not only to this chamber and to Newfoundland, but also, as I will explain
in my remarks, to all Canadians.
I wish now to deal with the first argument, namely, that the Newfoundland
school system needs to be reformed. I believe it is patently false and
misleading to say that the Newfoundland school system needs reform because it is
failing its students. Some proponents of the amended Term 17 would have this
chamber believe that this issue has arisen because the Newfoundland school
system is antiquated and unresponsive to the modern demands of education. In
other words, supporters of the proposed amendment argue that the Newfoundland
school system needs to be structured in exactly the same way that the school
system in most other provinces is structured, in order for Newfoundland school
children to be properly educated. The assumption underlying that argument is
that the education systems in other provinces are models upon which Newfoundland
should base its own school system.
While I concede the fact that a structure like that of the Newfoundland
school system does not exist in any other province, I reject the implicit notion
in this argument that because the Newfoundland school system is different, it
does not work. Newfoundland produces - and has produced - some of the finest
students in Canada. Indeed, I taught many of them myself during the years that I
was a professor at Dalhousie University.
While it is entirely justifiable to debate the efficiency of the school
system in Newfoundland, it is clearly a mistake to be drawn into questions about
the quality of Newfoundland schools. As Senator Doody said in this chamber,
addressing this precise point:
I do not hear the parents complaining about the quality of education in
I agree with him.
Senator Doody's opinion is certainly reflected in the correspondence I have
received on this issue. None of that correspondence has focused on the quality
of the Newfoundland school system; rather, the issue in all of the
correspondence I have received has been on the question of minority rights.
Indeed, honourable senators, even those in this chamber who support the
proposed amendment to Term 17 seem to agree that the quality of the Newfoundland
school system is not the principal reason for the proposed amendment. Supporters
of the proposed amendment move on quickly from this point to discuss the
question of the efficiency of the school system. They make the argument that the
Newfoundland school system is costly, wasteful and inefficient. Newfoundlanders,
they say, can no longer afford it.
Indeed, Senator Rompkey, in his speeches to this chamber, has forcefully set
out some of the inefficiencies that the current school system in Newfoundland
faces. As a former principal and administrator in his home province, he knows
better than any of us in this chamber about the challenges facing Newfoundland.
In addition, I want to say that Senator Rompkey is very persuasive on this
subject. Indeed, honourable senators, I agree with much of what he has had to
say about the inefficiency of the Newfoundland school system. I agree that the
school system should be more efficient.
In fact, I think it is safe to say that Senator Rompkey's skilful arguments
on this particular topic, on this narrow aspect of the first of these five
points, have resonance with every member in this chamber. There is no doubt that
education is one of the keys to Canada's future success. There is also no doubt
that our educational systems need to be as efficient as possible to help today's
young people meet the demands placed on them by a modern society.
However, it does not flow from this argument that our school systems must be
the same from province to province. I am not persuaded by any of the arguments
advanced either before the Standing Senate Committee on Legal and Constitutional
Affairs or in this chamber that say that Newfoundland, by the proposed amendment
to Term 17, only wants what the rest of the country already has in an education
system, and that Newfoundland needs - indeed, must have - what other provinces
have. That argument, honourable senators, is irrelevant at best and misleading
The Newfoundland school system may need reform, but what Newfoundland needs
has nothing to do with the education system in any other province. Education
systems do not have to be identical to be equally good and efficient. Indeed,
honourable senators, in this country, we do not have identical education systems
in any two provinces. One only needs to think of the simple fact that Ontario is
the only province with a Grade 13 and that the school system in Quebec, where I
went through elementary to high school, is also significantly different from the
school system in any other province.
Therefore, honourable senators, while I agree with the first argument made by
the supporters of the proposed amendment to Term 17 - namely, that efficiency is
desirable, and hence reform of the Newfoundland school system is needed - I do
not agree with much of the reasoning by which they arrived at that conclusion.
Honourable senators, in my opening remarks, I said that supporters of the
amendment had made five points. I have conceded to them that their first point,
that reform is desirable, is correct. I will now move on to the other four
points they make and show why, in each and every case, they are categorically
Let me move to the second argument that proponents of the proposed Term 17
have made, namely, that reform can only be achieved through a constitutional
amendment. I ask you, honourable senators, if this is, in fact, true? I suggest
to you that it is categorically not true.
On October 5 of this year, in this chamber, Senator Doody referred to the
Williams Royal Commission of 1992 in Newfoundland. That royal commission took
approximately 1,041 written and oral submissions representing 3,677 individuals
and 384 groups throughout Newfoundland. There were 128 petitions submitted to
the commission with 8,728 names. Senator Doody laid out all these facts in his
speech, and none of them were disputed, either in this chamber or in the
hearings of the Standing Senate Committee on Legal and Constitutional Affairs on
this subject this summer.
Senator Doody also laid out the fact that the Williams Royal Commission had
recommended a number of major reforms of the school system. What supporters of
the proposed amendment to Term 17 carefully try to ignore, gloss over and
otherwise not comment on, is that 90 per cent of what the Williams commission
recommended has already been agreed to by the religious denominations involved
in the Newfoundland school system. This point has been acknowledged in the
hearings of the Standing Senate Committee on Legal and Constitutional Affairs,
and by the Minister of Education in Newfoundland.
The fact that a constitutional amendment is being insisted upon here,
however, says to us that reform is not possible through any other means. That is
simply not true. The degree of acquiescence and support there has been for the
recommendations of the Williams commission clearly establishes that that is not
It is abundantly clear that significant progress continues to be made toward
reforming the Newfoundland school system and making it more efficient. The
stakeholders in this process have indicated their clear willingness to cooperate
with each other; yet proponents of the proposed amendment continue to insist
that the amendment must be made.
Surely, honourable senators, we have the right to ask why. When the
Newfoundland government can get at least 90 per cent of what it wants through
negotiation, what element of the final 10 per cent of the recommendations of the
Williams commission is so important that it requires a constitutional amendment
to achieve it? No supporter of the proposed amendment, either in this chamber,
in the other place, or in hearings before the Senate committee, has answered
Supporters of the amendment continue to duck and avoid answering directly and
clearly the question of why a constitutional amendment is needed, if virtually
everything that the Williams commission recommended has already been achieved
Honourable senators, I am not alone in asking this question. Senator
Carstairs, in an eloquent speech in this chamber on October 1, asked this
question. Senator Doody also put forward this question. Before the Standing
Senate Committee on Legal and Constitutional Affairs, Colin Irving, a
constitutional expert, voiced his opinion that not only was a constitutional
amendment unnecessary in this case, but that the proposed amendment, in his
opinion, could not withstand a constitutional challenge in our courts.
Honourable senators, this is very serious business. This chamber is being
asked to support a constitutional amendment that will affect rights given to
minorities, rights that those minorities believe should be protected and,
indeed, are currently protected in the constitution. We are being asked to
support an amendment that affects these rights without any proof being given of
the absolute necessity of taking away minority rights.
I say to supporters of the proposed amendment to Term 17: Where is the proof
that a constitutional amendment is needed? Where is the proof that this is the
only way to achieve your desired objective? No supporter of the proposed
amendment to Term 17 has made an irrefutable case that a constitutional
amendment is the only way to achieve the objective of making the school system
of Newfoundland more efficient.
Section 1 of the Canadian Charter of Rights and Freedoms sets out the test
that rights can be constrained by:
...reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society.
No such test is being made here by the proponents of the proposed amendment.
No proof that this constitutional amendment is needed has been put forward.
Therefore, honourable senators, I reject the claim that the desired reform of
the Newfoundland school system can only be achieved through a constitutional
amendment. Indeed, the evidence clearly suggests that almost everything that is
needed to reform the school system can be achieved without a constitutional
This brings me to the third argument made by supporters of the proposed
amendment. That argument says that because the legislature of Newfoundland has
voted for the amendment, and because it affects education which is an area of
provincial jurisdiction, the Parliament of Canada has an obligation to
rubber-stamp this proposal. This argument completely begs the question of what
it means for a minority right to be in the Constitution.
The Hon. the Speaker: Honourable senators, the time has expired for
Senator Kirby's speech. Is leave granted for him to continue?
Hon. Senators: Agreed.
Senator Kirby: The third argument essentially is that this chamber,
and, indeed, the Parliament of Canada, should rubber-stamp the position of the
legislature of Newfoundland. I repeat that this position completely begs the
question of what it means for a minority right to be in the Constitution. If, as
argued by proponents of the proposed amendment, a term in the Constitution can
be changed in effect solely by a provincial legislature, then why put the term
in the Constitution in the first place?
In 1949, by the conditions set out in Term 17, Newfoundland put into the
Constitution something no other province had. These conditions were a very
important part of the discussion leading to Newfoundland's joining
Confederation. Term 17, as it was then and as it stands now, reflects an
important part of the cultural fabric of Newfoundland. Its significance in this
regard has not diminished.
Further, Term 17 was put into the Constitution for a very specific reason,
namely, to put its conditions beyond the reach of the provincial legislature. In
1949, Newfoundlanders wanted the protection of the Government of Canada against
any attempt by the Newfoundland legislature to erase their long-held educational
Now, in 1996, this Parliament is being told by the proponents of the proposed
amendment to Term 17 that we should just ignore history; that because education
is an area of exclusive provincial jurisdiction, changing education should be
Newfoundland's business alone. We are being told that the protection of the
Parliament of Canada, which Newfoundlanders wanted - and got - in 1949, is
worthless in 1996; that our role is solely to rubber-stamp this proposal because
the legislature of Newfoundland wants it. I categorically reject this
interpretation of what it means for a right to be protected in the Constitution.
If the role of the Senate is solely to rubber-stamp a proposal from a
provincial legislature, why is the Parliament of Canada involved at all? The
Newfoundland legislature presumably, under that scenario, as a logical
consequence of their position, need simply write us a letter, telling us that
they have changed the Constitution. Would that be acceptable to us as senators?
My answer is no.
In 1867, this institution, the Senate of Canada, was set up specifically to
safeguard minority and provincial rights. The issue in this debate is about
minority rights. It is, even more important, about the removal of vested,
constitutional, minority rights. We have a role to play in this issue.
Section 93 of our 1867 Constitution, which is essentially the equivalent of
Term 17 for Newfoundland, was put into our Constitution specifically to protect
minorities. There is no doubt about that fact. One only need read the debates of
the time. In 1867, the Roman Catholic minority in Ontario was looking at a
Protestant majority. Section 93 was put into the Constitution so that Ontario
Roman Catholics would be empowered to set up their own separate school system.
In 1867, Ontario Roman Catholics could obviously have been given the same
power via a provincial statute. Provincial statutes, however, are subject to
change solely by the provincial legislature. Thus, Roman Catholics in Ontario in
1867 wanted the protection of the Parliament of Canada. Instead of being a
provincial statute, section 93 was put into the Constitution specifically to
take the power to change the system out of the hands of the provincial
legislature. The same can be said of section 22 of the Manitoba Act, section 17
of the Saskatchewan and Alberta Acts, and Newfoundland's Term 17.
To get around these facts, to avoid having to deal with the fact that Term 17
was put into the Constitution explicitly to prevent the provincial legislature
in Newfoundland from being able to unilaterally take away minority rights,
proponents of the amendment to Term 17 have made the argument that minority
rights are not, in fact, being affected in this case. They argue that a strong
constitutional guarantee continues to exist for minorities to operate their own
schools under the proposed amendment to Term 17. They point to the language of
the proposed amendment that says schools established and maintained and operated
with public funds shall be denominational schools.
Further, supporters of the proposed amendment to Term 17 gloss over as
lightly as they can, the fact that the right to a publicly funded denominational
school under proposed new Term 17 comes under the words:
...subject to provincial legislation that is uniformly applicable to all
schools specifying conditions for the establishment or continued operation of
The key words in that clause are "subject to provincial
legislation." What does this mean? It means that the grant of a
constitutional right to establish a denominational school under the new proposed
Term 17 would be subject to laws established by the provincial legislature.
In other words, it would clearly be possible under the proposed amendment to
Term 17 for a future Newfoundland government to pass legislation making it
practically impossible to have a denominational school. There would be no
recourse to the courts for the minorities protected currently by Term 17. The
rights granted them in 1949 would be, in effect, extinguished. In essence, the
constitutional guarantee given to them at the time of the union of Newfoundland
with Canada would cease to exist.
The courts could only say to the aggrieved minority that, yes, they do have
the right to establish their own schools, but it is subject to provincial
legislation. The only inquiry after that is whether the provincial legislation
in question is uniformly applicable to all schools. In the case that it is, the
courts could not help the aggrieved minority.
Proponents of the proposed amendment to Term 17 have a duty that, in my view,
they have absolutely failed to fulfil thus far. They have a duty to inform this
chamber about their view of what it means to hold a right that is subject to
We need to understand from people who want to pass this amendment what they
think it means to have a right explicity set out in the Constitution; to have a
minority right protected by the Constitution. Does it or does it not mean that
the right is beyond the reach of provincial legislators and politicians? Or does
it mean, as supporters of the amendment would implicitly suggest, that the right
in question is subject to the whims of the provincial government of the day?
Are constitutional rights of any permanence, or do minorities only possess
them at the pleasure of the current provincial legislature?
Let me give you my clear views on those questions. I believe that a basic
purpose of a constitution should be to establish and protect rights, not
diminish them. That is an axiom that any first year law student knows, and I
might say, although I am not a lawyer, I frequently lecture to law school
students on the subject of the Constitution, and I have never had either them or
their professors disagree basically with that position. While it is absolutely
true to say that no rights exist in isolation from other rights, we look to the
courts, not to politicians in a provincial legislature or in the Parliament of
Canada, to define or balance them.We do not look to a provincial legislature or
to the Parliament of Canada, acting alone or unilaterally, to define existing
I can only conclude that the intention of the Newfoundland legislature in
keeping, or in acquiring unto itself, the power under the proposed Term 17
amendment to unilaterally change the school system is that at some point in time
in the future, the legislature may decide to exercise that power. Otherwise, why
do they want it?
I want to be very careful that I am not implying any ill will on the part of
the current Newfoundland government or legislature. I am only emphasizing the
assumption that clearly lies behind all exercises in constitution-making:
namely, that those who have a power may, at some point in time in the future,
decide to use it. Otherwise, they do not need it. If, in fact, they never intend
to use it and, therefore, do not need it, I, for one, do not understand why the
proponents of the proposed amendment to Term 17 have been pushing for it as hard
as they have.
For us in this chamber to vote in favour of the proposed Term 17 simply
because the legislature of Newfoundland wants it, would, honourable senators, in
my view, be a very clear and gross abrogation of our duties as senators. We have
an important part to play in this process, and I, for one, am not willing simply
to rubber-stamp this proposal just because the Newfoundland legislature wants
Therefore, I reject the third argument made by proponents of the proposed
amendment to Term 17, that we as senators, and indeed the entire Parliament of
Canada, should only have a rubber-stamp role to play with respect to protecting
the rights of minorities in Newfoundland that are now in the Canadian
This leads me to the proponents' fourth argument: That not just the elected
representatives of the Newfoundland legislature want the proposed amendment to
Term 17, but the people of Newfoundland do as well. They voted for it in a
referendum, proponents of the proposed amendment say, and this Parliament has no
business thwarting the will of the people of Newfoundland. Honourable senators,
this is a powerful argument. Constitutions and constitutional law exist clearly
to serve citizens, not governments. There can be no doubt about that.
However, this is a case where minority rights are being affected, and we
therefore have to ask ourselves what the meaning of a minority right is.
Clearly, if a minority right exists only at the discretion of the majority, then
it is not a right at all. It is, instead, merely a privilege - a privilege
bestowed on a minority by a majority; a privilege that can be taken away
whenever the majority chooses.
Honourable senators, are we dealing with rights or privileges in the case
before us today? History would indicate very clearly that we are dealing with
In 1949, when Newfoundland joined Canada, the people of Newfoundland and
Labrador felt that they had the right to have their children educated in schools
that reflected their ethics, their values and their disparate cultures. By
agreement with the Government of Canada, that right of the people of
Newfoundland was enshrined in our Constitution. It was put there precisely to
protect it from being taken away by provincial legislators acting alone.
If this chamber passes the proposed amendment, those groups who negotiated
for, and were granted, rights in 1949 will, in effect, be told by the government
of Newfoundland, the legislature of Newfoundland and the Parliament of Canada,
that Term 17 was not, as the minorities thought, safe for all time but, rather,
was an administrative arrangement subject to change by a majority voting in a
referendum. These groups, in effect, will be told by the members of this chamber
and this Parliament that what they negotiated in 1949 was a privilege, not a
Let me be clear: I would be making quite a different speech this afternoon if
all of the groups whose rights were protected under Term 17 could be shown to be
willing to have their rights altered by the proposed amendment, or in any other
given way. Clearly, minority rights enshrined in the Constitution can be
changed, but only if that change is approved by those whose rights are affected.
Let me ask you: Is this the case in the amendment before us today? I would
suggest to you very strongly that it is not. We have absolutely no proof that
the minorities affected support the proposed changes. Indeed, the opposite is
the case here.
In a provincial referendum, 52 per cent of Newfoundlanders voted on the
subject. Of that 52 per cent, 55 per cent voted in favour of the change.
Multiplying those two numbers together, as I am inclined to do since I am a
mathematician, one can clearly see that what it means is that all we can really
be sure about is that 29 per cent of those who voted in this referendum
supported the change. Twenty-nine per cent, honourable senators, is not a
terribly compelling number.
Further, the correspondence in my office from such groups as the Catholic
Education Council, the Pentecostal Education Council, and even the Archbishop of
Newfoundland, all of whom oppose the proposed amendment to Term 17, clearly
suggests to me that the minorities whose rights will be affected do not support
the proposed changes.
It has been argued repeatedly by Senator Rompkey, and others who support the
proposed amendment, that the majority of the minorities favour the proposed
change, and yet we know without question from the letter writing campaign that
the majority of adherents to the Pentecostal Church clearly do not want the
The proof we have been offered that the majority of Roman Catholics want the
change has been at best anecdotal. For example, Mr. Loyola Sullivan, the Leader
of the Opposition in Newfoundland, the leader of the Conservative Party in
Newfoundland, testified before the Standing Senate Committee on Legal and
Constitutional Affairs that his riding is approximately 90 per cent Roman
Catholic, and yet he had received only two or three calls on this issue in the
last three years. Senator Rompkey, in this chamber on September 26, stated that
he had spoken with Roman Catholics in his province who disagreed with the
church's official position.
To be fair to both of these gentlemen, neither of them offered their
anecdotal evidence as conclusive proof. A good thing, because anecdotal evidence
is not proof. It would not stand up in a court of law, and it should not stand
Surely - and this is the key point with respect to the outcome of the
provincial referendum - the onus of proof is on those who want to take away
minority rights, not on those who want to keep them. The onus of proof of
establishing, in a crystal clear fashion, that the minorities are prepared to
accept the proposed change that would weaken their constitutional rights rests
with those who want to change them. The minorities being considered in this case
have the rights. They do not need to prove anything.
Without clear, irrefutable evidence that the majority of the minorities
affected by the proposed change actually support it, we in this chamber should
not - and indeed must not - vote for this proposed amendment.
A minority right means that it continues to exist, even when the majority
does not want it to exist. If our Constitution was only about majority rule, if
rights were simply a matter of majority rules, then frankly, none of us in this
chamber would be needed. All we would need is a series of national or provincial
referenda on whatever the major political questions of the day happen to be.
The reality is that this process is not how change is made in this country.
We have a Constitution so that, at the end of the day, the majority simply
cannot force a vote and steamroller over the rights of the minority. That is
precisely what is actually meant by having something in the Constitution, and
out of the reach of the provincial legislature and a majority of people in the
Therefore, honourable senators, the argument that the proposed amendment
should be supported simply because a majority voted for it in a referendum must
be rejected. To accept that referendum, to accept that argument, is to accept
the principle that all the rights in the Constitution, whether they are related
to Term 17 or the Terms of Union with Newfoundland or any other right, are not
rights at all but merely privileges.
As someone who spent seven days a week for 18 months in the 1980-81 period
negotiating the elements of the Charter of Rights and Freedoms, I can tell you
absolutely categorically that those rights are there precisely to protect
minorities at times when it is not convenient, when it is not desirable, and
when for whatever reason the majority decides that it did not want those rights.
They were put in the Charter of Rights and Freedoms precisely to put them beyond
reach of any small group of politicians or any majority acting unilaterally at
any given time.
This brings me, honourable senators, to the fifth and final argument that
proponents of the proposed amendment to Term 17 make. This argument is really
quite deceptive and intriguing because it allows them to duck all of the other
issues associated with this amendment.
The fifth argument says that given that the Newfoundland school system needs
reform and that the process leading to the amendment was fair, in that the
affected minorities had a chance to be heard before the content of the amendment
was finalized, Parliament should go ahead and give effect to the proposed new
Term 17. Indeed, in his testimony before the Standing Senate Committee on Legal
and Constitutional Affairs, the Minister of Justice emphasized this point. He
stated that it was important to note:
The process by which the amendment came forward from the province was fair.
Much attention was paid to this particular quote and to the process issue in
the majority report of the Legal and Constitutional Affairs Committee when it
reported on its hearings into this issue. Indeed, that majority report, which
one could dissect in a number of other ways, went to some length to quote two
constitutional experts, one a Dr. Kathy Brock of Wilfrid Laurier University, who
said in essence that minority rights can be changed without the consent of the
minority if the damage done to minority rights is offset by the gain to society
as a whole.
That is a fairly intriguing notion to say the least. It is hard to understand
under that concept what a minority right really is. Dr. Brock is quoted in the
majority report as saying:
...you must balance minority rights against the rights of parents to have
control over where their children go to school.
That is not relevant to the issue at hand. Clearly it is not, but the essence
of the rest of that section of the majority report was clearly aimed at simply
establishing that it is okay to take away minority rights provided that you do
not hurt them too badly. In other words, one has to measure the degree of pain
inflicted on the minority as you take away their rights and decide, as opposed
to them deciding, whether that pain is acceptable.
The majority report goes on to quote Dr. Anne Bayefsky of the University of
Ottawa, another constitutional expert, when she expresses her view that under
the proposed amendment to Term 17 minorities in Newfoundland would, "retain
a great deal more power and control than would be the case in a lot of other
That is another interesting argument, honourable senators, because in essence
what that argument says is that it is okay to reduce someone's rights if what
you do is leave them better off than other people. Again, what does that say
about what a minority right really constitutes?
In essence, the argument that the majority tried to make on this process
issue of fairness in the majority report is as follows: one, Newfoundland needs
a new school system; two, the minorities had a chance to be heard; three, in the
end, nobody is losing very much; and, four, therefore reform can take place. In
other words, so long as the process is fair, the end justifies the means.
Honourable senators, however compelling the case may be for reform of the
Newfoundland school system, I cannot lend my support to this unbelievably
dangerous precedent in interpreting constitutional rights. If constitutional
rights, collective or individual, were merely a matter of demonstrated need and
procedural fairness, there would be no need to tie up the courts in interpreting
their scope and application. Constitutional change would merely be a matter of
In this context, this chamber's role as a protector of minority rights would
become easy under the amending formula. We would only need to look at the need
and the fairness of the process. We would look at the numbers. It would be that
Honourable senators, I have read the majority report on many occasions, and
that is essentially the unbelievably simplistic argument that the majority
report makes. In effect, it is that simple and, frankly, it is very misguided.
The fairness issue is a total red herring because it misses the point on two
key issues. First, fairness is a purely subjective term. Clearly, what is fair
to one person may not be fair to another. Second, and more important, removing a
minority right is not about process - it is about an outcome. The process by
which a minority right is removed cannot justify the removal of that right
without the clearly established support of those whose rights are being changed.
To try to defend, as supporters of the proposed amendment to Term 17 have
done, what they are doing on the ground that they gave everyone an opportunity
to be heard and then went ahead and did what they were going to do anyway,
honourable senators, completely ignores the issue of what a minority right is.
Frankly, it is a very insulting argument in the sense that it supposes that
any process that gives everyone a right to be heard is regarded by supporters of
the proposed amendment as a fair and equitable way to amend the Constitution.
Minorities do not stand much of a chance under this formula. Convince the
majority or lose.
Therefore, honourable senators, I reject the fifth argument that proponents
of this amendment to Term 17 have made, the argument based on the process
Having dealt with these five arguments, and having shown how the last four of
them are not only categorically wrong but would form very dangerous precedents
for this chamber to support, let me turn now for a moment to Senator Doody's
"where numbers warrant" amendment.
I am in agreement with Senator Doody that ideally this chamber should not
support any amendment to Term 17. I believe that modernization of the school
system should and indeed can be achieved through negotiation. The evidence I
gave earlier about 90 per cent of the recommendations of the Williams Royal
Commission having been agreed to and achieved through negotiation clearly
establishes that no amendment is required. However, if supporters of the
proposed amendment both here and in the other place are bound and determined to
push ahead with this initiative, let me say at the very least that this chamber
must support Senator Doody's amendment by substituting "where numbers
warrant" for the phrase "subject to provincial legislation."
Why do I say that? I say that because the "where numbers warrant"
amendment has the effect of making the courts, not the Newfoundland legislature,
the ultimate guardians of minority rights under the new Term 17. It would at
least assure the minorities in Newfoundland of an independent, neutral, third
party protection of their rights. This is what they thought they were getting
when they put it in the Constitution and it is what many members of this chamber
now seem to be prepared to throw away cavalierly. If indeed we are going to
throw it away, at the very least we have to replace that third party protection
by another source, in which case one ought to adopt Senator Doody's "where
numbers warrant" amendment. It, at least, gives the courts the opportunity
to be that third party adjudicator of minority rights, as intended by our
Honourable senators, this is the key point in this debate. It is not for any
legislative body to give minority rights under our Constitution and then years
later take those rights away. Rights may evolve and change as they are balanced
and defined by the courts over time, but they do not come and go simply because
a provincial legislature decides that they are inconvenient.
Accordingly, even in the case where we adopt the "where numbers
warrant" approach, I believe that an exception should be made for the
Seventh-day Adventists who, because of their small numbers, may not be protected
by this clause. Because it is a debatable question whether they would be
protected by the "where numbers warrant" clause, we should have a
grandfather position that would protect the Seventh-day Adventists. Their
minority rights are no less deserving of protection by us and by the courts than
are the rights of the other groups who almost certainly will meet the
"where numbers warrant" test.
The main argument that this chamber has heard against Senator Doody's
amendment is that any five or six people could go to court and demand a school
of their own. I agree with the amendment's detractors that this is an alarming
prospect. If it came to pass, it would prove detrimental to even the current
education system in Newfoundland.
However, it is interesting, honourable senators, that these people who attack
Senator Doody's "where numbers warrant" amendment carefully fail to
mention that there is no strong tradition in Canada for our courts loosely
handing out minority rights. Since the charter came into effect in 1982, we have
now had nearly 15 years of experience on this subject. Historically, our courts
have been cautious on the subject of interpreting constitutional rights. They
have been sensible and practical in their interpretation of what "where
numbers warrant" means.
I am confident that, so long as proposed changes to Newfoundland's school
system are practical and effective, and do not interfere with the basic right to
denominational schools, they would be upheld by the courts.
Opponents of Senator Doody's amendment also failed to point out that,
technically, Term 17 protects religious denominations, not individuals. As such,
it is not at all clear that individuals would have the right to challenge a
"where numbers warrant" amendment in court. Since the churches
involved - that is, the denominations involved in this case - have already
agreed to 90 per cent of the recommendations of the Williams commission, it
would appear to be extremely unlikely that they would challenge Senator Doody's
amendment in court.
If they did, however, it makes more sense to deal with the situation then
rather than taking away rights now because we are afraid of some court challenge
down the road.
I admit that neither I nor anyone else can predict with certainty what a
court will do in any given situation. The inclusion of the phrase "where
numbers warrant" was the subject of intense discussion during the
constitutional negotiations of 1980 and 1981. Those of us involved in those
negotiations clearly understood that what we were doing was giving judges,
rather than politicians, the ability to decide how to interpret minority rights
in a practical way. We were deliberately, consciously, debating the issue with
all provincial governments of the day, with the exception of Quebec, and all
parties in the Parliament of Canada. A deliberate decision was made to ensure
that minority rights under the "where numbers warrant" clause were to
be protected and judged by a neutral third party, namely, the courts - not by an
individual legislature or the Parliament of Canada.
Many of us who were involved in those negotiations are still active here in
the two chambers in this Parliament. We argued passionately then, and I would
argue passionately now, to use the term "where numbers warrant."
Surely, honourable senators, if that phrase was adequate in 1981, it is adequate
in this case.
I would say to members on my own side, who argued passionately for that
"where numbers warrant" amendment in 1981: Please explain this to me.
If you found that phrase as powerful and compelling as we found it in 1981, what
is different now? Tell me why it does not work in Newfoundland, when it works
for francophone rights outside Quebec and anglophone rights in Quebec. I say
that particularly to the Liberals who argued and supported it. We went through
an awful political fight in that 1980-81 period. That "where numbers
warrant" amendment was one of those touchstones on which the entire
coalescing of our party was built. If that expression was good and effective
then, you cannot simply turn your back on it now without explaining why.
There is not a single opponent of Senator Doody's position who has
articulately expressed why they are against the "where numbers
warrant" amendment with the exception of Senator Carstairs. She made the
point that she was opposed to the "where numbers warrant" amendment
because it does not adequately protect the Seventh-day Adventists. As I pointed
out previously, I believe that we should enlarge Senator Doody's amendment to
ensure that the Seventh-day Adventists are adequately protected by the
In conclusion, honourable senators, I want to say that there is no doubt that
our Constitution is a living document. If our Constitution is not kept up to
date and made responsive to the needs of Canadians, it becomes a straitjacket:
inflexible and unworkable. It is not true to say - and I have not suggested
whatsoever in any of my remarks today - that rights which were hitherto
entrenched are forever entrenched and cannot be altered. Our courts balance
competing rights every day. However, in this case, we are being asked to set an
incredibly dangerous precedent, a precedent that I believe that we, as senators,
must reject vigorously.
No proof has been given to us that this proposed amendment to Term 17 is, in
fact, needed. No proof has been given to us that this proposed amendment to Term
17 is supported by the minorities who are currently protected by Term 17. To
take away their rights without their consent would set a precedent that could
conceivably lead to other provinces seeking similar changes.
Surely, honourable senators, we must take that possibility into account. This
institution, this Senate of Canada, was set up in 1867 to protect provincial and
minority rights. While we all, no doubt, have great sympathy for the fact that
the Newfoundland school system needs reform, there is a much larger question
here. That question is the essential one of all democratic societies: How do we
balance the interests of the few against the many? That is the only issue here.
All other questions of process, fairness, and who voted for what under what
circumstance - and even the need for reform - stand in the shadow of the
fundamental question: How do we balance the interests of the few against the
A minority right exists, even though the majority may be opposed to it. That,
honourable senators, is the essence of minority rights. Surely, it is our role
in this chamber to reject any attempt by the many to change the rights of the
few in the absence of their consent. Therefore, I ask all of my colleagues to
join with me and vote against the proposed amendment to Term 17. I ask for your
support on the basis that the proposed amendment forms a highly dangerous
precedent which we, as senators and as citizens, should reject.
Hon. Jerahmiel S. Grafstein: Honourable senators, I have a few
In response to my question to Senator Kinsella, which was subsequently
amplified by Senator Doody, I raised the question concerning the lack of
constitutional protection for those citizens of Newfoundland who do not
Section 15 of the Constitution, to refresh senators' memories on the
background, refers to equality rights. We have this complicated issue. Perhaps
my colleague can help us, based on his tests, as to how we deal with balancing
the rights of those citizens in Newfoundland who are not covered by Term 17,
which is a distinct minority, and the equality provisions under the
Senator Kirby: As Senator Grafstein knows, I am not a constitutional
lawyer. In any event, the question that he raised is not the question that is
before us. The question that is before us is whether we would support this
In fairness to Senator Grafstein, we discussed some of this matter earlier.
He would argue that Term 17 should not have been put into the Constitution in
the first place, for reasons that he will explain when he speaks.
However, the fundamental question here has to do with the fact that people
now have rights. Specific groups have rights in this case that are clearly set
out in our Constitution. I have been very careful not to say that the current
system is perfect. I was saying that we have been asked to change the rights of
a minority without, first, any evidence being given that change through the
Constitution is required or, second, any proof that the minority accepts the
change. I believe that that is the only issue on which we should focus when we
consider Term 17.
Senator Grafstein: I wish clarification on a comment made by Senator
Kirby. I am contemplating contributing to this debate. Before I decide whether I
will contribute, I want to examine what he has said and what Senator Doody has
said in the last few days, because I understand the complexity of the issue.
I suggest that Senator Kirby took my comment to him prior to his speech out
Senator Kirby: If I did, I apologize, Senator Grafstein.
Hon. C. William Doody: I have a question for Senator Kirby that deals
with that thorny question of the Seventh-day Adventists whose rights are
affected by this proposed amendment.
Is Senator Kirby aware that the Seventh-day Adventists have written a letter
to the Chair of the Standing Committee on Legal and Constitutional Affairs
saying that they would much prefer to see the phrase "where numbers
warrant" included in the amendment than to leave it as it is? They say in
that letter that they would feel much more comfortable pleading their case
before the courts than they would trying to plead their position before the
Legislative Assembly of Newfoundland.
Senator Kirby: Honourable senators, if I did not make my point clear
in my remarks, I apologize. I thought I was very clear. I am aware of the
position of the Seventh-day Adventists. It is very clear that they prefer the
"where numbers warrant" amendment to the proposed amendment. It is not
very clear - and none can predict with absolute certainty that they would meet
the "where numbers warrant" test before a court of law. Therefore, I
was saying that, in order to be totally fair, one would have to, in addition to
the "where numbers warrant" amendment, grandfather them as the one
special case. They negotiated for their rights and those rights deserve
Hon. M. Lorne Bonnell: Honourable senators, minority rights are being
destroyed here today. We gave permission for extended time for a speech which I
thought would conclude in another minute or two. It went on for another 15
minutes. I think, Your Honour -
The Hon. the Speaker: Senator Bonnell, are you raising a point of
order or are you speaking on the amendment?
Senator Bonnell: I am speaking on the amendment.
I like to think that the minority rights of people can be protected. We give
permission out of the goodness of our heart for a time extension to finish a
speech. We never thought the speech would go on for 30 more minutes with
questions and answers extending well beyond the time limit.
The rule pertaining to this procedure should be examined by the Standing
Committee on Privileges, Standing Rules and Orders to ensure that, when senators
ask for extended time to finish their speeches, they specify that it will be for
one or two minutes, not for 15 or more minutes.
It was a lovely and very interesting speech, but the senator could have
adjourned the matter to another day.
Senator Berntson: You should not have given him leave.
Senator Bonnell: My point is that the Rules of the Senate
should be changed to say that a senator must ask for an extension of a specified
length, and when time has been extended there should be no opportunity for
Senator Lynch-Staunton: Why did you not argue that during the GST
Senator Doody: Senator Bonnell has exercised his right to speak in
this debate and has spoken to the amendment. I am not sure whether he is in
favour of it or against it. In any event, I wonder whether he could find it in
his heart to recognize that this matter is of extreme importance. If senators
wish to express themselves for a little longer than the usual time, busy though
he might be, he might find the time to listen and perhaps learn a little bit
about what is going on in other parts of the country.
Senator Bonnell: Senator Doody, if anyone cannot say what they have to
say on an issue in 20 minutes, they do not know the subject very well.
Hon. Marcel Prud'homme: I am a long-time friend of Senator Bonnell's,
but I profoundly disagree with his statement. I have been a member of Parliament
for 33 years. This is one issue on which one of the two houses has played its
role fully. This was a great day for me as I listened to Senator Kirby. Even
when we disagree with people, we should be fair enough to say, "It is a
My only regret as a senator is that we do not have provision to televise
debates. If there is any point in this debate which I should have liked to have
had televised across Canada, it is the intervention by the Honourable Senator
Kirby. People listening to his intervention could reflect on the fundamental
issue of what it is to be a Canadian. To be a Canadian is to have feelings for
each other and to understand what minority rights are all about. That is the
meaning of Canada for me, in French and in English, in Quebec and in the rest of
Canada. That is what makes Canada so exceptional.
I owe no favours to Senator Kirby, but it was a privilege to listen to his
remarks. I told all the pages, all of whom are university students, that they
would hear a good speech. It was a great experience for them to hear Senator
Kirby speak, although they may disagree with him.
However, I do not share the opinion that he spoke too long.
As I said, I may participate toward the end of the debate on this matter. I
am very happy to see that many senators have stayed to listen to this debate.
When we start touching minority rights, we must consider who will be next. I
am looking at some of my long-time friends; Senator Adams, Senator Watt. This is
an important debate. I am glad to know that we will have an opportunity to
dispose of it, one way or the other. That is exactly what the Senate is all
On motion of Senator Grafstein, debate adjourned.
Motion for Allotment of Time for
Hon. B. Alasdair Graham (Deputy Leader of the Government)
senators, on this particular item, following discussions on both sides, an
agreement has been reached with respect to how we will proceed on the motion
standing in the name of Senator Rompkey respecting Term 17.
Accordingly, pursuant to rule 38, I move:
That no later than 5:00 p.m. on Wednesday, November 27, 1996, any
proceedings before the Senate shall be interrupted and all questions necessary
to dispose of the motion by the Honourable Senator Rompkey, P.C., for the
adoption of the thirteenth report of the Standing Senate Committee on Legal
and Constitutional Affairs (amendment to the Constitution of Canada, Term 17
of the Terms of Union of Newfoundland with Canada) shall be put forthwith
without further debate or amendment, and that any votes on any of those
questions not be further deferred.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Motion agreed to.
State of Financial System
Report of Banking, Trade and
Commerce Committee Requesting Authorization to Travel for the Purpose of
Pursuing Study Adopted
The Senate proceeded to consideration of the tenth report of the Standing Senate
Committee on Banking, Trade and Commerce (power to travel), presented in the
Senate on November 5, 1996.
Hon. Michael Kirby, Chairman of the Standing Senate Committee on
Banking, Trade and Commerce, moved the adoption of the report.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and report adopted.
Transport and Communications
Committee Authorized to Meet During Sittings of the Senate
Hon. B. Alasdair Graham (Deputy Leader of the Government)
, for Hon. Lise
Bacon, pursuant to notice of Wednesday, November 6, 1996 moved:
That the Standing Senate Committee on Transport and
Communications have power to sit at 3:30 p.m. on Tuesday, November 26, 1996
with respect to its study of the state of transportation safety and security
in Canada, even though the Senate may then be sitting and that Rule 95(4) be
suspended in relation thereto.
Motion agreed to.
Leave having been given to revert to Government Notices of Motions:
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable
senators, with leave of the Senate, and notwithstanding rule 58(1)(h), I
That when the Senate adjourns today, it do stand adjourned until Monday,
November 25, 1996, at 8 p.m.
The Hon. the Speaker: Honourable senators, is leave granted?
Hon. Senators: Agreed.
Motion agreed to.
The Senate adjourned until Monday, November 25, 1996, at 8 p.m.