Download as PDF

Debates of the Senate (Hansard)

1st Session, 36th Parliament,
Volume 137, Issue 86

Tuesday, October 27, 1998
The Honourable Gildas L. Molgat, Speaker


Tuesday, October 27, 1998

The Senate met at 2:00 p.m., the Speaker in the Chair.



Women's History Month

Thérèse Casgrain-Champion of Women's Suffrage in Quebec

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, in celebration of Women's History Month, I would like to bring to the attention of the Senate the figure of Thérèse Casgrain.

Her father had been a Conservative member for Charlevoix.


In 1916, at the age of 19, she married Pierre Casgrain, who would later become the Liberal member for Charlevoix. Pierre was more receptive to Thérèse's public activities than her father was and he openly supported them.

During the 1921 election campaign, the first federal election in which women had the vote, Pierre Casgrain took ill, and his wife took over at a moment's notice, speaking in public on his behalf.


Madam Casgrain's most significant contribution to Canadian politics came in an attempt to win the vote for the women of Quebec. In 1922, 400 women of both English and French background went to Quebec City to lobby then premier Alexandre Taschereau. His response to their demands was that "if the women of Quebec ever get the right to vote, they will not have got it from me."

One of the most significant obstacles to obtaining the vote in Quebec was the Church, which vigorously opposed extending the franchise to women. The Church, holding such important sway as it did in Quebec at that time, was able to hold up the process for many years.

By 1927, every other province in the country had extended the franchise to include women, but not Quebec. A bill introduced in February of that year was defeated 51 to 13. Neither in the courts nor in the legislature could women win their point.

It was decided that a single voice must represent women across the province, and Madam Casgrain was chosen to express it, spearheading organizations such as la Ligue des droits de la femme and la Ligue de la jeunesse féminine.

She fought with vigour to change the Civil Code of Quebec in favour of more egalitarian treatment for women. Some success was obtained in 1930, when the Dorion Commission studying the Civil Code made some recommendations that improved the conditions and rights of women. However, the commission stopped short of granting women full equality. Indeed, the drafters, all of whom were men, even set out that adultery was more painful when the victim is the husband, as though women were not even equal in so much as feelings.


In the black days of the struggle to get the vote for women in Quebec and of the feminist movement in Canada, Madam Casgrain took up every challenge without ever getting discouraged. She worked tirelessly at advancing the cause of women throughout the Depression, a period during which other bills to give women the right to vote were defeated. This debate was often very heated and very public. Finally, in 1938, the Quebec Liberal Party passed a resolution in support of the vote for women. Unfortunately, the party was not in office at the time. As a result, Quebec women had to wait until the Liberals took office in 1939 and a bill giving them the equality of status they had demanded for so long was finally passed in the spring of 1940.


Madam Casgrain continued her involvement in public life, and even ran unsuccessfully for Parliament in 1944. She was disappointed that women had not supported her.

Dismayed by the activities of the Liberal Party, she stuck to her principles and joined the CCF in 1946. She had a distinguished career with the party and, although never elected, became the first woman in Canada to head a political party after taking that party's reins in 1951. She held the post until 1957.

In September 1970, she was appointed to our chamber by her lifelong friend Pierre Trudeau. Her stay here was short. She was forced to retire the very next year at age 75, but contributed substantially during her brief tenure.

A devoted lady to her country and to her cause, her principles were always more important than political ideology.

Thérèse Casgrain, a great Canadian woman!

The Honourable Erminie J. Cohen

Congratulations on Receiving Negev Award

Hon. Mabel M. DeWare: Honourable senators, I rise with pleasure to inform you of a great honour that was recently bestowed on one of our colleagues, the Honourable Senator Erminie J. Cohen.

Hon. Senators: Hear, hear!


Senator DeWare: Senator Cohen was honoured by the Jewish National Fund at its annual Negev dinner this past Sunday in Saint John, New Brunswick. Senator Cohen was chosen for this great distinction because she has devoted a lifetime of service to New Brunswick, to Canada and to Israel.

In her honour, a forest will be planted in the Negev Desert at Yatir as part of the giant Jubilee Forest Project. In tribute to Senator Cohen's home province, it will be called the New Brunswick Forest.

Along with several of our colleagues from both sides of this chamber, I was privileged to attend the dinner held in Senator Cohen's honour. I want to share with you today some sense of the evening itself, as well as the sense of pride that I felt as her friend and colleague.

The emphasis of the evening was in keeping with the Jewish tradition of "family" in the larger sense of the word. Indeed, all of us who attended felt that we were part of Senator Cohen's family.

The make-up of the crowd went a long way to showing the warmth and appreciation that so many people feel for Senator Cohen, and the esteem in which she is held. Four hundred and seventy-seven people from all political parties and from many walks of life came together to pay tribute to Erminie and her causes, among them equality, family violence, poverty, human rights, health and, above all, Canadian unity.

Those attending got to know Senator Cohen a little better, confirming what most of us already knew: She battles for the underdog. She will lend her voice to those who have no voice. She does it in a modest, effective way.

Senator Cohen also places great value on national unity. As she said in her speech on Sunday night:

The miracle of Canada is that I can be - and am - a Canadian, a New Brunswicker living in Saint John and a Jew all at once. Each facet complementing and enhancing the other dimensions of my life.

Honourable colleagues, I know you will join with me in congratulating Senator Cohen on this well-deserved honour.

Hon. Senators: Hear, hear!

Canada-United States Inter-Parliamentary Group

Report of Co-Chairs on Visit to Washington, D.C.

Hon. Jerahmiel S. Grafstein: Honourable senators, last week I had the honour to table, in both official languages, a report on the visit of the co-chairs of the Canada-United States Inter-Parliamentary Group to Washington, D.C., in July of this year.

This visit was organized as a follow-up to the thirty-ninth annual meeting held in May in Nantucket, Massachusetts. At that annual meeting, commitments were made on both sides to continue, on an ongoing basis, bilateral meetings on a number of issues between our regular annual meetings. These included border facilitation and, in particular, section 110 of the 1996 U.S. Immigration Act, which, if operational, would require the documenting, almost like a visa, of all non-U.S. citizens, including Canadians, entering or exiting that country.

Other issues which we followed up on included the common interests of Canada and the United States regarding the Transatlantic Trade Agenda, common efforts for cooperation on drugs and related crimes, and a West Coast meeting which would highlight all the positive aspects of that regional relationship despite the almost intractable problems caused by the Pacific salmon dispute.

Honourable senators, since this visit in July, many members of the Canada-U.S. association from both Houses have been busy with respect to these issues. We have contacted many of our American colleagues to impress upon them the problems that have been caused by the implementation of section 110.

Honourable senators, I am pleased to report that last week a 30-month delay on any implementation of section 110 has been agreed to by Congress. Members of the Canada-U.S. group will continue work on this issue to ensure that section 110 is eventually repealed.

After the November elections in the United States, we will return to Washington to facilitate the four bilateral meetings before the next annual meeting.

May I thank my co-chair Joseph Comuzzi of the other place and our senior staff, Richard Rumas and Carol Chafe, for their energetic, relentless efforts in the macro and micro exchanges of Canada's most important bilateral relationship.

The Honourable Jean Charest

Undermining of Position of Quebec Liberal Leader by Prime Minister

Hon. Marjory LeBreton: Honourable senators, as a Canadian who is proud to be part of a political party which has always put the unity of the country above all else, it is with horror and dismay that I learned that the Prime Minister has, yet again, targeted Jean Charest to the delight of Mr. Charest's opponents. Canadians ask, is this just a careless act or is it deliberate?

It is hard to chalk this up to a careless act, because this is the fourth time in recent memory that Jean Charest has been undermined by the Prime Minister. In the October 1995 referendum in Quebec, most objective observers conceded that Jean Charest made the difference in the narrowly won result, only to be pushed aside by the Prime Minister when Mr. Charest was about to speak to the nation.

In the 1997 election campaign, the forces of regionalism were given new life by the combination of the Reform Party's "No more Prime Ministers from Quebec" and Jean Chrétien's "50 per cent plus 1" remarks which drove voters back into the ranks of the Bloc Québécois.

The third example occurred this past summer when, a full three months ahead of the required time, the Prime Minister called a by-election in Sherbrooke without even the simple courtesy of advising Mr. Charest and without any regard to our own ability to wage a credible campaign. The result was a victory for the Bloc Québécois with the Quebec election looming on the horizon.

The most recent bombshell, as reported in La Presse, is that Quebec has achieved its demands and, therefore, there is no urgent need to even acknowledge the Calgary Declaration about the unique character of Quebec in Canada.

Is this careless or deliberate? Surely the evidence is clear that the answer is the latter. It is deliberate. We have seen this before during the Meech Lake Accord process. Unfortunately, the Liberal Party of Canada has created the myth with Canadians that only they can handle the unity issue, and that defies logic.

The strongest evidence to support the theory of a deliberate act is that divisive issues create divisive results and drive people into regional parties, thereby ensuring the continuing success of the Liberal Party which, time and time again, has put political interests ahead of our country. This, it is sad to say, is what has happened once again. Let us hope that Jean Charest can overcome this and let us also hope that the country will soon have leadership which does indeed put Canada first above all else.

Candlelighters Childhood Cancer Foundation

Support Group for Child Cancer Survivors

Hon. Landon Pearson: Honourable senators, October is Breast Cancer Month. While as a survivor I would like to honour all those working to bring this dread disease under control, I want to remind you that children, too, contract cancer. At the same time, I should like to salute the work of the Candlelighters Childhood Cancer Foundation of Canada. To do so I will draw on a letter I received last month from a young survivor of childhood cancer whom I met at a Candlelighters Conference last July. Pamela Finnie wrote to me about being diagnosed with cancer when she was 10 years old and about receiving treatment for three years.

Cancer is different when it strikes a child. Not only does cancer attack the child's body but it also threatens the material and emotional supports of the family on which children depend. The diagnosis of cancer in a child is the beginning of a process that shakes the faith, emotions, health and finances of everyone close to the child.

For this reason, psycho-social support must always accompany medical intervention if children and their families are to recover from cancer. Precisely this kind of support is provided by the Candlelighters of Canada.

Cancer is biologically different when it attacks a child. Children often suffer from a more advanced stage of cancer when they are first diagnosed. Cancer is more likely to be in the blood or lymphatic system. The treatment of children is specialized and separate from the treatment of adults with cancer. Though childhood cancer is less frequent than adult cancer, when it affects a child, the disease threatens an average 70 or 80 years of potential life.

Cancer is socially different when it attacks a child. Because childhood cancers are only treated in specialized centres, families of those children are often uprooted from their communities in order to support the child's treatment. Alternatively, children and parents may be separated by the treatment. As Pamela writes:

We were separated for months and weeks at a time because I lived in Golden, B.C. and the treatments were in Calgary.

Relocation and separation place additional pressures on families that are already facing extreme distress.

Cancer has different emotional effects when it strikes a child. A young person is thrown into adversity before he or she has had the time to develop sophisticated coping skills. Parents of a child stricken by cancer, however, find their sophisticated coping skills are tested to the limits by fear and grief. Because the causes of childhood cancer are not well known, parents often feel they might have prevented the disease. The feelings of guilt and helplessness that result are corrosive of relationships and previously held beliefs. Cancer also poses a risk to healthy siblings of children with the disease. Siblings must work through their own feelings and negotiate family relationships that are strained by cancer. Cancer in a child can cause an entire extended family to question its trust in the world. Ms Finnie worries that the social workers and psychologists she found helpful are too busy to be able to support hurting families.


The good news is that research into childhood cancer has been saving lives. For example, over the last 20 years, the mortality rate for children with leukaemia has dropped from 95 per cent to about 20 per cent. Support groups such as Candlelighters have worked with doctors and mental health professionals to reduce the stresses on the family after diagnosis. Families of sick children have also been spared some pain by a new generation of drug treatment.

Despite these advances and even because of these advances, children and families face new challenges. As treatment is forcing more childhood cancers into remission, young children now struggle with the after-effects of trauma and treatment. Social workers identify lack of programs for survivors of childhood cancer. Young people who have undergone treatment of childhood cancer have special concerns about their health future and reproductive options.

Although a child's blood test may return to normal within a few months or years of treatment, it may take longer for the emotional and developmental effects of cancer to subside.

There are ways in which Canadians and their governments can help. First, we can continue to support groups such as Candlelighters that work toward the psychosocial healing of those affected by childhood cancer. Second, we can redouble our support of medical research in this field in which the rewards of discovery are so great. Third, Canadians can give blood so that the paediatric oncologists are never without the supply they need.

In conclusion, I will share with you the last paragraph of Ms Finnie's letter:

There are more and more childhood cancer survivors which is wonderful news, but now we have to do more to help them thrive, not just survive in this society. Research to help get better treatments with less side-effects, psychological support to help them cope with all the pain, changes and emotional upheaval. People need be made aware that cancer does not discriminate between old and young. Kids get cancer too!

Human Rights

JosÉ Ramos-Horta-Visit of Nobel Laureate and East Timorese Activist

Hon. Lois Wilson: Honourable senators, yesterday I was privileged to welcome to Canada José Ramos-Horta, Nobel Peace Prize Laureate and Vice-President of the National Council of Timorese Resistence. He had previously met with Foreign Affairs Minister Axworthy. In 1975, East Timor was invaded and annexed by Indonesia, which country has remained there ever since, imposing a dictatorship.

Many Canadians know of the situation, which formed some of the background for the Canadian students' action in Vancouver last year at the APEC conference and their puzzlement as to why they were not entirely free to make their voices heard.

José Ramos-Horta urged East Timor's right to self-determination, which has been called for by 10 United Nations resolutions, by the U.S. Senate resolution of July 10, 1998, and by the U.S. Congress last week in its passing of the Omnibus Appropriations Act of 1998.

The American Omnibus Appropriations Act supports an internationally supervised referendum by the people of East Timor as to their political status. The Nobel Peace Prize winner authored the plan for a referendum and emphasized the need for East Timorese to have a say in self-determination.

Dr. Ramos-Horta also emphasized that the time for Canada to act is now because he is not sure how much longer the people of East Timor will be patient.

A delegation of church leaders from Canada have also just returned from East Timor. One of the delegates, Peter Schonenback, General Secretary of the Canadian Conference of Catholic Bishops, was present on October 12, 1998, when the streets of Dili, the capital of East Timor, were flooded with massive crowds in one of the largest demonstrations to take place there in recent times.

The protest was in reaction to the governor of East Timor's direction that all public employees must support the continuous integration of East Timor into Indonesia. He noted that there was great popular support for a referendum leading to independent self-rule. The hope is for Canada to use its muscle on the Security Council to press for an immediate cease-fire and withdrawal of Indonesian troops under United Nations supervision.

Up to this point, Canada has either abstained or opposed United Nations resolutions denouncing the annexation of East Timor. Nobel Prize winner Ramos-Horta expressed the hope that Canada would adopt a much more positive stance.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to call your attention to the presence in the gallery of two senior officials from the secretariat of the State Great Hural of Mongolia. Welcome to the Senate of Canada.



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

That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, October 28, 1998, at 1:30 p.m.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Motion agreed to.


Inter-Parliamentary Union

One Hundredth Conference held in Moscow, Russian Federation-Report of Canadian Group Tabled

Hon. Gerald J. Comeau: Honourable senators, pursuant to Standing Order 23(6), I have the honour to table, in both official languages, the report of the official parliamentary delegation of the Inter-Parliamentary Union, which participated in the 100th Inter-Parliamentary Conference, held in Moscow, Russian Federation, from September 7 to 13, 1998.


Report of Nineteenth Working Committee and General Assembly of the ASEAN Inter-Parliamentary Organization Tabled

Hon. Gerald J. Comeau: Honourable senators, I have the honour to table the report of the Canadian Delegation of the Canadian Inter-Parliamentary Union Group to the Nineteenth Working Committee and General Assembly of the ASEAN Inter-Parliamentary Organization held in Kuala Lumpur, Malaysia, from August 24 to 28, 1998.

Canada-Japan Inter-Parliamentary Group

Report of Chairman's Visit with Members of Diet Tabled

Hon. Dan Hays: Honourable senators, I have the pleasure of tabling the report of the third annual visit by the Chairman of the Canada-Japan Inter-Parliamentary Group with Diet members. The visit was made to Tokyo, Tohoku and Hokkaido from May 22 to June 2, 1998.

Report of Ninth Annual Meeting with the Japan-Canada Parliamentarians' Friendship League Tabled

Hon. Dan Hays: Honourable senators, I have the pleasure to table a report on the ninth annual meeting between the Canada-Japan Inter-Parliamentary Group and the Japan-Canada Parliamentarians' Friendship League held in Banff, Calgary Edmonton and Fort McMurray from August 21 to August 28, 1998.

Asia-Pacific Parliamentary Forum

Report of Executive Committee Meeting in Lima, Peru Tabled

Hon. Dan Hays: Honourable senators, I have the pleasure to table the report of the executive committee meeting of the Asia-Pacific Parliamentary Forum held in Lima, Peru, from September 6 to September 8, 1998.

Access to Census Information

Notice of Inquiry

Hon. Lorna Milne: Honourable senators, I give notice that on Thursday next, November 5, 1998, I will call the attention of the Senate to the lack of access to the 1906 and all subsequent censuses caused by an Act of Parliament adopted in 1906 under the Government of Sir Wilfrid Laurier.


Solicitor General

Treatment of Protestors at APEC Conference by RCMP-Provision of Funds for assistance of Students at Related Federal Court Proceedings-Government Position

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, late last week, as we began a debate here in the Senate on the motion of Honourable Senator Carney with reference to the injustice associated with the failure of the government to provide legal assistance to the students involved in the Vancouver APEC inquiry, we learned that the chairman of the RCMP Public Complaints Commission himself is alleged to have demonstrated partiality, and that that matter has been submitted to the Federal Court.

The government has attempted to "spin" the idea that the Public Complaints Commission is an informal process and that therefore the students do not need to have lawyers - a point missed completely by the team of government counsel and the batch of lawyers representing the RCMP. However, given that the matter is now before the Federal Court, will the Leader of the Government tell this chamber if the government considers the Federal Court to be an informal process or if it is what it is, namely, a serious tribunal where the rule of law and the procedures under the rule of law are strictly adhered to? Will the government now finally take steps to provide legal representation to the students before the Federal Court?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I presume that the honourable senator is referring to the Federal Court and asking whether or not it is legal. The obvious answer to that is yes. We have been assured by the commission's counsel, time and again, that he will ensure that all complainants are represented conscientiously and fairly. It is not the intention of the government to provide legal assistance at this time.

Senator Berntson: Will he represent them in court?

Senator Kinsella: Honourable senators, I fear I may not have completely heard the leader's answer. Was he suggesting that the chairman of the Public Complaints Commission is able to make a determination as to whether or not the views of the students will be heard before the Federal Court when the Federal Court will be deliberating on the allegation against that very chairman?

Senator Graham: No, honourable senators. I was saying that counsel for the Public Complaints Commission has given a public assurance that the students will be well represented by him, and that they will be treated in a fair and very conscientious manner. As the honourable senator knows, the Public Complaints Commission is an independent body that was set up by statute by the former government. That commission operates at arm's length from the government, deciding what it will examine, how the complainants will be examined, which witnesses are to be called and which documents it wishes to see.

As my honourable friend knows, the chairman announced on Friday that the issues arising out of the allegations that have been made by an RCMP constable have been referred to the Federal Court. Since the matter is before the Federal Court, it would be inappropriate for me to comment further.

Senator Kinsella: Honourable senators, let me make my question perfectly clear: This matter has now gone from the Public Complaints Commission and is before the Federal Court. The Federal Court is obviously not an informal body; it is a very formal body. The argument that the government had been using as the reason that it would not provide lawyers to the students is that the Public Complaints Commission process is an informal process and that therefore they really did not need to be represented. My question is: Will the government provide legal assistance for the students in the matter that is before the Federal Court?

Senator Graham: Honourable senators, the matter that is before the Public Complaints Commission is entirely different from that which has been referred to the Federal Court. What has been referred to the Federal Court for adjudication is the allegation by RCMP Constable Black.

Senator Kinsella: By way of supplementary, honourable senators, the right of the students to have their complaints investigated appropriately and heard by the Public Complaints Commission depends essentially on the impartiality of the panel, and depends critically on the impartiality of the chairperson. The matter that is before the Federal Court is an allegation that the chairperson is not impartial. Does that not constitute an issue of jeopardy for the students? That is where the students must be heard.

Senator Graham: It may constitute an element of jeopardy with respect to the panel, as it is now constituted. That issue will be adjudicated and ruled upon by the Federal Court.

Commission of Inquiry into Treatment of Protestors at APEC Conference by RCMP-Provision of Funds for Defence of Chairman at Related Federal Court Proceedings-Government Position

Hon. R. James Balfour: Honourable senators, is the chairman of the Public Complaints Commission being represented by counsel before the Federal Court? A simple "yes" or "no" will suffice.

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, if I could say "yes" or "no," I would, but I am not aware.

Treatment of Protestors at APEC Conference by RCMP-Request for Inquiry under Inquiries Act-Government Position

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, even if the Federal Court rules that the RCMP Public Complaints Commission chairman is not biased and the proceedings can continue, will the Leader of the Government not concede that there is a perception abroad that will haunt the commission, and that no one will believe that this was a fair and impartial process?

Therefore, will the Leader of the Government in the Senate tell us whether his government will now at least consider launching an inquiry, as we have been asking, under the Inquiries Act so that these allegations of human rights violations can be properly and impartially investigated?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators know that the commission hearings have been adjourned until November 16 pending a ruling by the Federal Court. It is hoped that the Federal Court will be able to make its findings known by that time. I think it would be inappropriate for the government to take any action prior to a ruling by the Federal Court.


National Unity

Unique Character of Quebec-Enshrinement in Constitution-Statement of Prime Minister-Government Position

Hon. Fernand Roberge: Honourable senators, in an interview he gave Vincent Marissal and Gilles Toupin of La Presse, the Prime Minister said he had taken giant steps toward meeting the expectations of Quebecers since the 1995 referendum.

According to him, all of Quebec's traditional demands have been met. Regarding recognition of the unique character of Quebec in the Calgary Declaration, which I would remind you was endorsed by the legislative assemblies of nine Canadian provinces, the Prime Minister said it would be preferable for the unique character of Quebec to be enshrined in the Constitution, because that would provide more assurance. However, the Constitution must not be a general store.

According to the Prime Minister, entrenchment of the unique character of Quebec is not necessary at this time. Yet, in September 1997, the Prime Minister said he would await the arrival of a federalist government in Quebec before adding this element so dear to the hearts of Quebecers to the Constitution.

This about-face is nothing new. Recently, this same Prime Minister, who appeared to be favourable to the demands of the 10 premiers when it came to the Canadian social union, changed his mind, stating that his government was not prepared to comply with their request.

As you know, honourable senators, this unfortunate statement by the Prime Minister could have a major impact on the outcome of the election in Quebec and, consequently, on the future of our country. In light of these disturbing facts, does the Leader of the Government in the Senate realize that the irresponsible comments of the Prime Minister of Canada on Quebec's unique character will be very prejudicial to the Quebec Liberals and to Jean Charest, thus helping a separatist government get re-elected, something which no one in this house wants?


Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, since its election, the government has been working unceasingly to ensure that the Canadian federation functions as efficiently as possible, and that the different orders of government work cooperatively on behalf of all Canadians.


I agree, and I believe that it would be preferable to have Quebec's distinct character recognized in the Constitution. That is why a resolution to that effect was adopted in the House of Commons and, indeed, that is why the Government of Canada supported the Calgary Declaration.


Consequences of Statement of Prime Minister on Quebec's Next Election

Hon. Fernand Roberge: Honourable senators, can the Leader of the Government confirm to us that, by making this statement, Jean Chrétien is trying to help a separatist government get re-elected? Does the Prime Minister think that the actions of such a government would be less prejudicial to his career and his government than those of a Liberal government under Jean Charest? Is that the Prime Minister's real wish? Does he want to perpetuate the political uncertainty that affects the social and political climate in Quebec and Canada, a situation which he himself condemns so strongly?


Hon. B. Alasdair Graham (Leader of the Government): Speaking personally, and on behalf of the government, I wholeheartedly and unequivocally support Jean Charest and the Liberal Party in Quebec. I am sure that every member of this chamber supports Mr. Charest, who has had a distinguished career in Canadian politics. Mr. Charest will make a great and outstanding premier of the Province of Quebec.


Senator Roberge: Honourable senators, does the Leader of the Government agree that the Prime Minister has gone back on the solemn promise he made to Quebecers in October 1995 during the mass rally in Montreal, and in September 1997, to enshrine the distinct nature of Quebec in the Constitution of Canada? Quebec would get nothing out of the federal government, despite the Prime Minister's wonderful promises.


Senator Graham: Honourable senators, Canadians do not judge their governments on the basis of how many amendments are made to the Constitution. Canadians wish to see tangible progress. We believe that the procedure and approach that we favour has resulted in tangible progress.


Senator Roberge: Honourable senators, can the Leader of the Government tell us whether Prime Minister Chrétien is planning other bombshells in order to hurt Jean Charest's election chances? Can he promise us that, during the next 35 days, the Prime Minister of Canada will be absent from Quebec's political scene?

Senator Kinsella: A good idea, a good suggestion.


Senator Graham: Honourable senators, I would hope that all people of goodwill - that is, anyone who wishes to contribute to the success of Jean Charest's campaign in the province of Quebec, will do so. It is incumbent upon all of us to respect the wishes of our colleagues in the province of Quebec to achieve the desired result, and that is the election of a Liberal government and the election of Jean Charest as premier of Quebec.

Reference was made earlier to the referendum. I would remind all members of this chamber to look back and recall the eight days before the actual referendum. The No side, I believe, according to polls that were prevalent at the time, were approximately 8 percentage points behind the Yes side. The victory for the No side was indeed a squeaker. People were saying that Prime Minister Chrétien should not have been involved. Prime Minister Chrétien saw the crisis on the horizon. We had an incredible rally in Montreal. I was there. I wonder how many of you were there. Indeed, it was the intervention of Prime Minister Chrétien which brought us from 8 percentage points behind to a narrow victory on the day of the referendum.

Senator Roberge: How disconnected this government can be from the realities of Quebec. Read the headlines today in the papers. For example, in La Presse: "Un coup de poignard dans le dos."

When will you wake up to this reality?

Senator Graham: Honourable senators, Senator Roberge was talking earlier about what progress has been made. I should like to point out and remind honourable senators, because we had a very spirited debate in this chamber, as they did in the other chamber, when the government amended section 93 of the Canadian Constitution. That amendment allowed for the modernization of the Quebec school system.

You ask what progress has been made with respect to the devolution of powers and the recognition of the desires of people who live within the province of Quebec. We made a commitment to limit the use of the federal spending power, and that commitment, by the way, goes further than the Meech Lake Accord. We established the Canada Health and Social Transfer, which gives the provinces more autonomy in using cash transfers. We have withdrawn from job training, social housing, mining and forestry development and the tourism sectors, all of which withdrawals were asked for by the Province of Quebec.

We have sought to extend the scope of the agreement on internal trade to foster a climate conducive to economic growth in Canada. More recently, honourable senators, we sought to find ways with the provinces to modernize our social programs so that they address the needs of Canadians as effectively as possible, no matter where they live in our country.

Human Rights

Present Situation in Tibet

Hon. Consiglio Di Nino: Honourable senators, I wish to direct my question to the minister. In the spirit of the response that you gave to my colleague on all people of goodwill doing what is best for the province of Quebec, would you not ask the Prime Minister on our behalf to make a visit to Tibet within the next 30 to 45 days. Not only would he see the horrible human rights abuses, but he would be less able to interfere in the provincial election, which will be going on in the next little while.

National Defence

Flight Clearance for Sea King Helicopters-Government Position

Hon. John Buchanan: Honourable senators, I have a question for the Leader of the Government in the Senate. As you probably are aware, recently some of the Sea King helicopters out of Shearwater have been flying. In fact, I noted in the last few days that some have been flying over my house in Halifax. Would the Honourable Leader of the Government know when all of the Sea Kings will be cleared?

Hon. B. Alasdair Graham (Leader of the Government): My understanding, honourable senators, is that all of the Sea Kings, with the exception of one, were cleared last week.

Flight Clearance for Labrador Helicopters-Government Position

Hon. John Buchanan: Honourable senators, let us move from the Sea Kings to the machines that have been in the news more recently, the Labrador helicopters out of Greenwood, which are part of the Search and Rescue system. I noted in the newspaper just in the last few days that the Labradors will also be cleared for flying. At this time, they are cleared for emergency use only, but it has been announced recently that most if not all of them will be cleared very soon. Do you know when that will occur?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I wish to thank the honourable senator for his question, and tell him that I appreciate his interest in matters of this kind.


My information is that all of the Labradors have been cleared as of today. The decision was made by the Chief of the Air Staff to restore the Labrador fleet to full operation availability for Search and Rescue operations.

Senator Buchanan: As of today?

Senator Graham: That is my understanding; as of today.

Options Available to Crews from CFB Greenwood on Flying Labrador Helicopters-Government Position

Hon. John Buchanan: Honourable senators, I should like to ask the minister if there is any truth to a story that has been circulating that air crews from Greenwood will have an option as to whether they will or will not fly in the Labradors?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, that is true. Air crews will have the option as to whether or not they want to fly the Labradors.

Senator Buchanan: In your opinion, and in the opinion of the Department of National Defence, through the minister, what will happen if some members of an air crew decide that they do not want to fly the Labradors until new helicopters replace the existing ones? That would have occurred very soon if the original contract had gone out, but will now occur somewhere in the year 2001 or 2002. In your opinion, what will happen to the careers of the members of any of the air crews if they decide to take the option not to fly?

Senator Graham: First, let me point out to Senator Buchanan that the decision was made after extensive consultation with squadron commanders and experts in the field, as well as with members of the flight safety investigation team. This is a serious question and I am about to answer it - that is, if you will give me an opportunity to do so.

We are very sensitive to the concerns of our personnel. If they are not comfortable flying the Labrador, they will not be forced to do so. However, they could very well be transferred to other responsibilities.

Senator Buchanan: That is what I have heard. That is to say, if they take the option not to fly, then their career as air crew in the helicopters may be over, and they would be transferred. Is that what you said?

Senator Graham: I did not say that at all. I leave that to the good judgment of the people most directly responsible and very capable of making that judgment. Those are the people on the ground at Greenwood and at the Armed Forces headquarters, wherever they may be serving the public of Canada.

I was there at the memorial service for those who died in that very tragic accident. I could see the pain and the concern. I talked to the base commander and to many of the base personnel. We are all very proud of our Armed Forces personnel, and we do have a responsibility to provide them with the proper equipment. We are very sensitive to their own personal welfare and how they feel about whether or not they should board a particular aircraft. It is up to them - that is, to the individual members of the Armed Forces - to make that decision for themselves. I assure you, Senator Buchanan, that they will not be punished in any way if they decide not to fly.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, is there a written directive to that effect, or is it the same policy that is being reconfirmed?

It is my understanding that a crew member can refuse to take equipment if he feels it is not up to safety standards, or if he himself - or she herself - is not fit enough. I believe that is the policy at the moment. Is this new policy, or refined policy, or reconfirmation of existing policy that a crew member, for the two reasons given, can refuse to be part of a flying crew?

Senator Graham: Honourable senators, it is my understanding that, under the present circumstances, if crew members do not want to fly in the Labrador, they will not be forced to do so.

Senator Lynch-Staunton: Must they give a reason?

Senator Graham: No. My understanding is that they can just say "I prefer not to fly at the present time."

Senator Lynch-Staunton: That means that the government must have some concern about guaranteeing the operational safety of the Labradors by telling the crews, "These are operational but if you have some questions, just walk away from them." Why not ground the Labradors and get it over with?

Senator Graham: Let me remind honourable senators that the Chief of the Air Staff made the decision, after much consultation with the squadron commanders who serve in the area.

Senator Lynch-Staunton: The Chief of the Air Staff is happy with the Labradors, the squadron commanders are satisfied with his decision, but they are telling their subordinates who are responsible for flying the machines, "Do not give us any reason. If you do not want to board one of them, it is all right with us." What kind of policy is that? What kind of direction is it when those on the ground are being told by their superiors that "the equipment is adequate, but you do not have to use it if you do not feel like it"?

Senator Graham: Honourable senators, the safety of our aircraft and of our crews, as well as the safety of Canadians, is our utmost concern. We will not fly unsafe aircraft.

Senator Lynch-Staunton: If you were really concerned about the safety of crews and of the equipment, why did you cancel the helicopter contracts that had been signed by the previous government? Had you not done so, perhaps the new helicopters would be on the eve of delivery now.

Senator Graham: We are all well aware of the answer to that question: The contract was too expensive.

Senator Lynch-Staunton: Too expensive? Well, there is a price to safety, is there not?

Options Available to Crews from CFB Greenwood on Flying Labrador Helicopters-Request for Particulars of Refusals

Hon. Fernand Roberge: Honourable senators, if I know the Department of Defence, they keep records on everything. There will be a record of those who have turned down the offer to fly. Is it possible to receive a list of those who have refused to fly on the helicopters?

Hon. B. Alasdair Graham: Honourable senators, I am not aware of any individual, or any group of individuals who have indicated that they are not prepared to fly.

Senator Roberge: If there are, surely the Leader of the Government can obtain copies of those records to deposit with us here at the Senate.

Senator Graham: If there are individuals who have decided that they do not want to fly, in this particular case the Labradors, that fact would very quickly be a matter of public record.

Pages Exchange Program with House of Commons

The Hon. the Speaker: Honourable senators, before I call Orders of the Day, I should like to introduce to you the pages from the House of Commons who are here with us for this week on the exchange program.

On my right is Sally Housser of St. John's, Newfoundland. She is enrolled at the University of Ottawa in the Faculty of Social Sciences and is majoring in political science.

Hon. Senators: Hear, hear!


Nathalie Labonté, from Jonquière, Quebec, is studying sociology and anthropology at Carleton University.

On behalf of all senators, we welcome you to the Senate.



Parks canada Agency Bill

Third Reading-Motions in Amendment-Debate Adjourned

On the Order:

Resuming debate on the motion of the Honourable Senator Fitzpatrick, seconded by the Honourable Senator Ruck, for the third reading of Bill C-29, to establish the Parks Canada Agency and to amend other Acts as a consequence.

Hon. Ron Ghitter: Honourable senators, I am pleased to have the opportunity to speak to this bill because, as parliamentarians, we have a special trust relationship with Canadians when it comes to our national parks, our national historic sites and our marine conservation areas.

Canadians have a deep affection for, and pride in, their parks and their heritage sites and expect us to ensure that these parks and sites will be well managed, protected, preserved and accessible to all Canadians. The Standing Senate Committee on Energy, the Environment and Natural Resources has an enviable record of service and commitment to our parks system. At our hearings relating to Bill C-29, the members of the committee again displayed their dedication and knowledge by the variety and depth of the questions put to the witnesses. I might also add that the knowledge the members of the committee garnered during the preparation of its report on protecting places and people, which was filed in the Senate and dated February of 1996, was vital in order to deal with the issues raised by this important legislation.

Simply put, the bill before the Senate today is an organizational bill designed, as the Assistant Deputy Minister of Parks Canada, Mr. Lee, described it, "to give Parks Canada a number of powers to enable it to deliver service to Canadians in a more efficient manner than at present." Mr. Lee advised us that the bill seeks to make improvements in a number of areas. These can be easily summarized in the words "stability," "certainty," and "financial and human resource efficiencies."


In order to examine the value of this bill, it is important to scrutinize the raison d'être presented by the advocates of this legislation. It was suggested to us that, over the years, Parks Canada had become an orphan of various departments and that the creation of an agency would bring it stability and certainty. It is true that over the years Parks Canada has gone from the Department of Indian Affairs and Northern Development to Environment Canada and, more recently, to Heritage Canada. It can reasonably be argued that those transfers weakened their ability to effectively deliver their mandate. However, this argument is, in my view, tenuous at best, considering the fact that there are no assurances that another prime minister will not decide to put the new agency under the authority of the Minister of the Environment, Indian Affairs or some other new ministry. Simply because there is an agency is no assurance that departmental connections will remain the same. Once again, Parks Canada, with its agency, could become an orphan. After all, under the legislation, the minister is still responsible for the fundamental policy directions of the agency.

In reality, I doubt very much if a greater element of certainty or stability is created by this new agency. Its situs still rests with the will of the Prime Minister. There are no guarantees that it will remain under the Heritage portfolio. In fact, we were urged by one witness that it would be better suited under the Environment minister rather than Heritage, and there are persuasive arguments in that regard.

The second argument apparently in favour of the bill as expressed to us by Mr. Lee is that it will result in greater simplicity in the structure and the order in which the agency carries out its business. The argument presented to us is that organizationally the agency will report directly to the minister, not through a layered bureaucracy. Apparently, it is contemplated that this will result in a flat type of organization which will allow for more operational, decision-making ability at the field level.

One must ask, as did Senator Kenny at our hearings, Why could the reorganization not be accomplished without having to go to an agency? From my point of view, we do not need an agency in order to simplify the manner by which the present Parks Canada conducts its business. This could readily be accomplished within the existing structures. All of the organizational simplicities outlined by Mr. Mitchell - a "flattened organization where we will have a field unit superintendent reporting directly to the CEO of the agency who will report to the minister responsible" - can be easily accomplished without the creation of a new agency. One then continues to ask, why the need for a new agency?

The real answer, I believe, can be found in the area of "financial flexibilities," as Mr. Mitchell calls it. It is here that one discovers the government's real intentions. Frankly, it concerns me. Arguments that the legislation allows for revenue retention and two-year rolling budgets are not in themselves persuasive, for they could easily be accomplished without the creation of a new agency. The truth lies more in the fact that Parks Canada has faced a reduction of about $100 million in its budget and is in a position, as Mr. Lee candidly told us, "to deliver services at less cost than we have in the past."

This means to me that either Parks Canada was terribly wasteful in the past with taxpayers' money, a point I can neither prove nor disprove, or that this new agency will be used as an arm of government and a buffer for the government to raise additional revenues by all sorts of user and entry fees that will result in our parks being available only to those who can afford them, thereby depriving countless Canadians of the benefits of enjoying the wonders of their national heritage.

When Mr. Lee advised us that he has been asked to put in place an organization that can deliver services at considerably less cost and added that he has reduced staffing levels by up to 800 people, I became very suspicious that this legislation before us today is but an attempt by the government to cloak its real intentions of starving our parks system and utilizing the new agency as the fall guy for the new "efficiencies" to which we can look forward.

Although I doubt very much that privatization of our parks is part of the government agenda at this time, I have experienced the privatization of our provincial campgrounds in the province of Alberta and the rising cost to the consumer as a result. Certainly this could mean more contracting out of park maintenance and other similar schemes, for there can be little doubt from what we have heard that the heat will be on this new agency to perform some fiscal magic. I can only wonder at what cost to our parks and ecosystems and the ability of Canadians to participate in park experiences.

Frankly, honourable senators, I am very sceptical that the creation of this new agency will accomplish anything that cannot be done by some internal reorganizational commitments. In reality, it is a fiscally driven piece of legislation hiding behind some buzz words such as "efficiency, human resources and flexibility," but it fails to meet the test of scrutiny. Why does the government not call it what it is - namely, a wall behind which it hides from the financial bleeding of our parks and historic sites, as it moves the government a step away from the fact that it is the minister who is causing the increased user and entrance fees and the reduction of services? Could it also be that next the government will boast that they have further efficiently reduced the number of federal employees when in fact they have merely transferred them somewhere else, to another agency or under a contracting-out scheme?

However, inasmuch as the government clearly wants this agency, numbers in this Senate chamber dictate that this will obviously occur. We will be watching. I do not intend to vote against the bill. I will take the government's argument at face value in the hope that the bill will assist the dedicated administration and employees of Parks Canada to utilize their limited budgets more efficiently.

I must add that I am very impressed by the knowledge and commitment of the assistant deputy, Mr. Lee, who came before us, and I believe that the Secretary of State of Parks, Mr. Mitchell, is very sincere in his desire to strengthen our parks system. However, as I said earlier, we will all be watching with great interest.

It is my hope that the Senate will consider positive recommendations and amendments that will assist the new agency and the minister in their decision-making process with the encouragement of public input. In the report of the Standing Senate Committee on Energy, the Environment and Natural Resoures that was tabled in this chamber a few days ago, there were four recommendations. The recommendations included in the fourth report are as follows:

They recommend that the preamble of Bill C-29 be expanded to stress and reinforce the conservation mandate of the proposed agency. They recommend that a statement of purpose for the agency be added to strengthen the legislation. They recommend that the Minister of Canadian Heritage create a national advisory council comprised of informed stakeholders and that the council meet quarterly with Parks Canada agency and management. Lastly, they recommend that there be a requirement for public input into the formation and/or alteration of management plans, and that that be added to the legislation.

These recommendations were based on the committee's desire to encourage public participation in the parks planning process wherever possible. There is a history behind these recommendations. The committee knows this from its experience and its travelling throughout the parks system in Canada and the preparation of the report called "Protecting Places and People," which was well received by Canadians. Following the filing of this report, the committee made a subsequent visit to Banff National Park to again meet with stakeholders in the area. Let me, by way of background, provide you with some important information.


In October of 1994, during a fact-finding visit to Banff, the committee noted a very high level of conflict between those wanting to expand services to accommodate more visitors and those opposed to such development on the basis of the disruption that such development causes to the ecology - not exactly a new issue in our parks system, but one very much in the forefront in Banff, due to the heavy tourist traffic that the area attracts. The level of concern was so high that in March of 1994, the minister froze any further development in the park and established the Banff-Bow Valley Task Force under the able chairmanship of Dr. Robert Page, who was a witness at our hearings dealing with Bill C-29.

The task force used an unprecedented approach in the history of national parks. They set up round tables of volunteer participants, who represented the numerous interest sectors involved, in an endeavour to break away from a pattern of confrontation of opposing views to a common vision of the future. In October of 1996, the report of the committee, entitled "Banff-Bow Valley: At the Crossroads," was made public. It was an incredible piece of work that, surprisingly, was endorsed by all of the stakeholders who were involved. Individuals who, months previously, had been fighting each other and at each other's throats, came together and filed a unanimous report. It was an example of how public involvement, leadership and forward thinking can bring together strong and opposite viewpoints to a consensus report.

On January 30 and 31 of 1997, our committee returned to Banff and examined the process that had been undertaken by the task force. To say the least, we were very impressed. In the report of our committee tabled in the Senate, we recommended the process that had been exhibited in the Banff-Bow Valley corridor study. We stated in this report, which was tabled in the Senate, that:

4) the Minister of Canadian Heritage examine the applicability of the process developed in Banff as a model for ensuring public involvement in decision-making for other National Parks.

Later in 1997, Canadian Heritage released its report and its Banff National Park Management Plan. In that report, Minister Copps, in her minister's message, referred to the work of the individuals creating the Banff-Bow Valley corridor study, and said that this was "the blueprint for action into the 21st century." The Minister publicly lauded the report, the system and the process as a way of bringing together the various problems and the various stakeholders in dealing with our parks. She went on to say that decisions must be open and transparent, and "to prohibit human use wherever and whenever it can be demonstrated that such use will cause severe environmental consequences."

The report itself goes on to say - and this is the government's own report - that:

All citizens should have the opportunity to participate in decisions that affect the park, and should feel confident that those decisions are made in a consistent, open, and responsive environment.

The management plan, needless to say, was well received by all. The minister rightfully applauded it, and the minister was herself applauded for being a party to such an excellent process.

Then suddenly, without notice to anyone, the goodwill created by years of putting together this report was shattered when, in June of 1998, the minister accused the townspeople of abusing the privilege of living in a national park, and unilaterally refused to allow commercial development on lands already zoned for commercial use, notwithstanding the support of the residents of Banff as confirmed in a plebiscite.

The mayor of Banff appeared before our committee. In his submission to the committee, Mayor Hart had the following things to say about the process, and his disappointment in what the government had done. Mayor Hart states:

Until this June, the most recent version of the plan had been that which had evolved from the landmark Banff-Bow Valley study process, a comprehensive examination of the environmental integrity of the park that was carried out over a two-year period and had unprecedented public input. The new management plan that resulted from this was tabled in Parliament last fall, and was hailed by everyone as a fine example of a process and a product that could lead to a great future for Banff National Park and, indeed, other parks in the system.

Then he goes on to refer to what had occurred in the announcement of the minister. He says:

This action, in my view, was clearly a misuse of a system that will be perpetrated, in fact perhaps even embellished with the new agency. While some of my environmental friends who may be listening may be saying that the minister was acting appropriately and that what she did was well and good, I would advise them to think twice. Were the situation the reverse - a different minister personally believing that the town site boundaries should be increased by 17 per cent and simply writing that into the park management plan without consultation - would they believe it was well and good? I do not think so, and therein lies the danger. Essentially, the whole future of our national parks system lies at the whim of the minister of the day and their particular philosophy. God help us!

So says the mayor of Banff, Mr. Hart, having gone through this experience.

The Hon. the Speaker: I regret to inform the Honourable Senator Ghitter that his 15-minute speaking period has elapsed. Is he requesting leave to continue?

Senator Ghitter: If I may.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Ghitter: Honourable senators, I am in no position to say whether or not the unilateral intervention of the minister was on the basis of valid criteria. I am in no position to say whether or not I support her actions from the point of view of the decision, but I can certainly say that I do not support her actions from the point of view of the manner in which she went about doing it, and the manner in which, unilaterally and totally, she swept away all of the good work that was done by so many stakeholders. I can say that, in one press release, she destroyed the notion of public involvement and credibility that years of work had accomplished by the task force and her own department in the management plan, and that, indeed, is unfortunate.

Honourable senators, we must do everything possible to encourage meaningful public participation, and that is the basis for some amendments that I will propose today. The amendments will simply take the recommendations of the committee tabled yesterday and put them directly into the legislation. There exists already in the bill what I regard to be a superficial attempt towards accountability and public input by the requirement for the minister to convene a bi-annual round table of persons interested in matters in respect of the agency and Parks Canada, and for the minister to provide a written report on the findings of the round table. I do not believe that such provisions are adequate. They merely pay lip service to the concept of public involvement and participation that the minister seemed to favourably support following the Banff-Bow Valley Task Force successes.

I would refer honourable senators to the comments of Dr. Page, who came before our committee, the chairman of the Banff-Bow Valley Corridor Task Force. He stated during his comments to our Senate committee as follows:

I would like to share with you some of the perceptions that we got from the public, Canadians right across this country when we consulted them with the Banff-Bow Valley study. A great of number of Canadians told us that they were cynical with regard to the fact of their input having any meaningful role in national parks decision-making. We were quite disturbed, as were a number of parks officials, by some of that input that came in. This kind of a proposal will help to address that cynicism which is so unfortunate in one of our national symbols.

He goes on to state:

Out of this would then come a multilateral dialogue for management which would be useful. I would like to take you back for one moment to an aspect of the Banff-Bow Valley Study.

Then he carries on to support the work that had been done. He says:

I think we can trigger a similar dialogue nationally on our national parks with such a body.

He says that what is really an important issue is that we need an outside advisory board to complement these internal processes. With that, of course, I totally agree with Dr. Page.

Motions in Amendment

Hon. Ron Ghitter: As a result, honourable senators, I have a number of amendments to table for the consideration of the Senate.

Honourable senators, I move:

That Bill C-29 be not now read the third time, but that it be amended, on page 2, by replacing line 29 with the following:

"(l.1) to effect the conservation of ecosystems and natural areas that extend beyond national park boundaries by working in cooperation with adjacent landowners, and being involved in research, environmental assessment and planning processes within the region, and".

I also move a second amendment:

That Bill C-29 be not now read the third time but that it be amended, on page 8, by adding the following after line 8:

12.1 (1) The Minister shall appoint a Consultative Committee consisting of 12 persons with expertise in park management and conservation biology and interested in matters for which the Agency is responsible to hold office for a term of no more than five years.

(2) The Consultative Committee shall, at least once in each quarter of the calendar year, meet with the senior management officials of the Agency for the purpose of discussing any issues of national interest related to the management of national parks, national historic sites, and other protected heritage areas and heritage protection programs.

(3) No member of the Consultative Committee may receive pecuniary gain or remuneration for service in connection with the Agency but members may be paid for any reasonable out-of-pocket expenses incurred by them for services rendered to the Agency.

I would also move a third amendment:

That Bill C-29 be not now read the third time but that it be amended, on page 15,

(a) by adding the following after line 15:

(1.1.) The Agency shall, before any management plan referred to in subsection (1) is provided to the Minister under that subsection, hold a public hearing to hear all persons having an interest in and wishing to be heard in connection with the management plan.

(b) by replacing line 18 with the following:

protected heritage area every two years;


(c) by adding the following after line 21:

(3) A public hearing to hear all persons having an interest in and wishing to be heard in connection with any amendments made to the management plan shall be held before any amendments are tabled in either House of Parliament.

(4) The Agency has, in relation to any public hearing under this section, the powers of a Commissioner under Part I of the Inquiries Act.

(5) A public hearing under this section may be held at such place in Canada or at such places in Canada by adjournment from place to place as the Agency may designate.

(6) The Agency shall give notice of any public hearing under this section in the Canada Gazette and in one or more newspapers in general circulation throughout Canada, and in particular in those areas of Canada where, in the opinion of the Agency, there are persons likely to be interested in the matters to be considered at the hearing.

Those are the amendments, Your Honour.

The Hon. the Speaker: It is moved by the Honourable Senator Ghitter, seconded by the Honourable Senator Kinsella -

Some Hon. Senators: Dispense.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motions in amendment?

Some Hon. Senators: No.

Some Hon. Senators: Yes.

On motion of Senator Bolduc, debate adjourned.

Judges Act

Bill to Amend-Consideration of Report of Committee-Point of Order-Debate Adjourned

The Senate proceeded to consideration of the fourteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-37, to amend the Judges Act and to make consequential amendments to other Acts, with amendments) presented in the Senate on October 22, 1998.

Hon. Lorna Milne: Honourable senators, I move the adoption of the report.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Senator Milne: Honourable senators, I am pleased to be able to discuss this report with you today.

Point of Order

Hon. Anne Cools: Honourable senators, I rise on a point of order. This committee report asked the Senate to adopt amendments to Bill C-37, as they were voted in the Standing Senate Committee on Legal and Constitutional Affairs. I contend that some of those amendments are out of order and are inadmissible in this chamber.

Honourable senators, this report proposes to amend Bill C-37 by deleting clauses 1, 9, 10 and 11. These deletion amendments are in order. My point of order is not directed to those amendments. The report also proposes to amend Bill C-37, clause 6 by adding subclauses (1.1)(a), (b), (c) and (d). This amendment is not admissible and is out of order. This report cannot be considered by this place because it contains a proposal that is defective, is procedurally unacceptable and is not in order.

Honourable senators, this proposed new subclause is a pretender. It will not amend the proposition in Bill C-37 as it claims but it will introduce an entirely new proposition, one unknown and foreign to Bill C-37. Further, this new proposition is not contemplated nor countenanced by Bill C-37 and even by the Judges Act. This entirely new proposition is based on a new, different and contrary principle from Bill C-37. The Senate judged the principle of this bill at second reading and passed it on second reading vote on September 22, 1998. Had this new proposition been before the Senate at that time, Bill C-37 would not have passed second reading. I certainly would have spoken and voted against it.

Of second reading, Beauchesne's Parliamentary Rules & Forms, Sixth Edition, Citation 659 states, in part:

The second reading is the most important stage through which the bill is required to pass; for its whole principle is then at issue and is affirmed or denied by a vote of the House.

A new and contrary principle cannot be introduced here after second reading decision and vote on the principles of the bill. Bill C-37's clause 6 proposed judicial commission was to be an administrative assist to the Minister of Justice. The committee's amendment proposes an expanded commission with new and previously unknown expanded powers. This new proposition and its new principle offends the Senate's second reading vote.

Honourable senators, the report stage of a bill is one of re-examination of a committee's work and conclusions. Beauchesne's Sixth Edition, Citation 713 informs:

In general, the report stage of a public bill is one of reconsideration of events that have taken place in committee. The consideration of a bill is now a more formal repetition of the committee stage with the applicable rules of debate which are proper when the Speaker is in the Chair...

I stated on September 22 that the salary increase for the judges should have proceeded in Parliament as a singular and distinct bill without contentious propositions or controversy. To this end, on September 29, I gave notice that I would move a motion of instruction to our Senate committee to divide Bill C-37, thereby severing the salary increase clause to process it separately and swiftly. In that way, senators could have acted more speedily to pass it into law while still continuing to study the more contentious aspects of Bill C-37. The salary increase could have been law by now. Unfortunately, because of the Senate's intervening adjournment, I could not actuate my motion. I had hoped that the committee, which met during our adjournment, would have considered separate action on the salary increase. I found no favour. This committee's questionable amendment is slowing down the passage of the judges' salary increase even more.

Honourable senators, the justices of this land deserve better parliamentary treatment than that. The principle is that salary increases for judges should proceed in Parliament in a forthright, straightforward manner, uncomplicated by questionable, dubious, controversial propositions or procedural difficulties. We have a moral and political imperative to observe this parliamentary principle. We honour the judges by upholding Parliament's rights and duties in respect of Parliament's proper treatment of them.

Honourable senators, Parliament's control of the public purse and Parliament's duty to uphold that control is the essence of representative ministerial governance. I am a senator from Ontario where the movement for responsible government and the movement to separate judges from daily politics by the political concept of judicial independence coincided. The work of Upper Canada's reformers William Warren Baldwin and Robert Baldwin is legend. They endeavoured to get the judges out of politics, off executive councils and out of the legislative chambers, and simultaneously uphold the political concept of judicial independence in a political and parliamentary way. The then emerging principles of Liberalism prevailed. As a Liberal, I uphold antecedent Liberals and Liberal principles. Many are trying to drive this great body of Liberal political thought into obscurity. The great, late 19th century British Liberal, William Ewart Gladstone's influence on Canadian Liberalism was profound. He was Prime Minister of England four separate times. About Parliament's control of the nation's finances, Gladstone, the Grand Old Man of Liberalism, said in a speech on March 17, 1891:


...the finance of the country is intimately associated with the liberties of the country. It is a powerful leverage by which English liberty has been gradually acquired....if the House of Commons can by any possibility lose the power of the control of the grants of public money, depend upon it, your very liberty will be worth very little in comparison....That powerful leverage has been what is commonly known as the power of the purse - the control of the House of Commons over public expenditure...

In Canada, the Constitution Act, 1867, noted the United Kingdom's and Canada's pre-Confederation parliamentary struggles to control finance, and enacted special powers greater than the House of Lords to the Senate of Canada. The Constitution Act, 1867, not leaving the situation to Standing Orders or resolutions of the House of Commons, clarified this matter and gave strong financial powers to the Senate, therein embodying the federal principle of control of the nation's finances and the financial initiatives of the Crown. The only financial limitations on Canada's Senate are sections 53 and 54 of the Constitution Act, 1867, and even section 54 is really a limitation on the Commons. No motion of this Standing Senate Committee on Legal and Constitutional Affairs can amend, alter or ignore sections 53 and 54 of the Constitution Act, 1867.

Honourable senators, this pretender amendment, passed by this Senate committee is out of order and was out of order in the committee. It should never have been put for a vote in that committee. This defective amendment would add an additional subclause to the enabling clause creating the commission and giving it its powers, objects and purposes. This new subclause expands greatly the scope, powers and objects of Bill C-37's clause 6. It adds a new purpose that greatly exceeds the original purpose. This is another defect.

The Constitution Act, 1867, section 54 states, in part:

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General...

This committee's amendment does not serve the purpose for which Bill C-37 was given Royal Recommendation when it was presented in the House of Commons. This committee's defective amendment to clause 6 commands the commission that:

(1.1) In conducting its inquiry, the commission shall consider

(a) the prevailing economic conditions in Canada, including the cost of living, and the overall economic and current financial position of the federal government;

You heard right, honourable senators, the current financial position of the federal government.

(b) the role of the financial security of the judiciary in ensuring judicial independence...

I repeat, these purposes are not the purposes of Bill C-37 as recommended by the Governor General. The original purpose of Bill C-37 was not to place the financial initiatives of the Crown into Bill C-37, into any statute or into the purview of the judges. The fact that the word "financial" is used twice in this amendment proves its irregularity. This committee's proposed amendment brings the economic condition of Canada, the government's financial position, the Minister of Finance, the public accounts and the minister's financial plans and Main Estimates into the scope and inquiry of this judicial commission. These were not the purposes for which the Royal Recommendation was attached to Bill C-37 originally.

Honourable senators, the public treasury is the Sovereign's business. The finances of the nation are Her Majesty's and Parliament's business to inquire into and to consider. They are not the business of the judges or the judiciary. Thankfully, this amendment is so scripted that its transparency and intention are quickly made manifest. No simple amendment of this committee can submit the Royal Prerogative of the Sovereign's financial initiatives as exercised by the Minister of Finance in responsibility to Parliament and Parliament's representative duties to the electorate in the matter, to the judges, for inquiry or consideration for any reason whatsoever. Any such inquiry is between Parliament and the electorate. Royal Prerogative is only exercised by responsible ministers chosen from and responsible to the elected assembly, the House of Commons, supported by the unique federal financial role of the Senate.

The Hon. the Speaker: Honourable Senator Cools, I regret to have to interrupt you. Unfortunately, I must leave the Chair to receive the President of Peru. I have asked Senator Corbin to take the Chair.

I have listened to the first part of your argument. He will listen to the balance. I will read it later, and we will also hear any other senator who wishes to speak. I will rule at a later date.

Senator Cools: Honourable senators, to continue, this is not subject to the inquiry of judges. This is the law and custom of this land, at least for now. If changes be advanced, they must be submitted to Parliament and the country for debate, and must not be advanced as simple housekeeping amendments to Bill C-37. We believe in a nation of laws, not of judges, in the supremacy of law, not of judges. We must uphold the law and ask our judges to do the same. The issue is constitutional, not judicial supremacy.

Honourable senators, this defective amendment and this section of the committee's report contravene section 54 of the Constitution Act, 1867. This expansion of scope and power of the commission was not the purpose for which Bill C-37 received Royal Recommendation. The issue here is not the quantum or the dollar amount but the purpose. In short, the committee's amendment is defective because it needs to be submitted for Royal Recommendation and consequently for three readings of each house, beginning with the House of Commons.

The enormous powers and scope proposed by this report's amendment were not intended or even anticipated in Bill C-37 or even by the Judges Act, the parent act. The committee's amendment is about a separate branch of law with different responsible ministers. An entirely different set of legal propositions has been proposed from that contemplated by the Judges Act. This branch of law is not properly the subject of the Judges Act. The proposed amendment to Bill C-37 is therefore defective and inadmissible.

Honourable senators, there is yet another defect. Another aspect of the Royal Prerogative is violated in the committee's subclause (1.1)(c), "the need to attract outstanding candidates to the judiciary...."

Her Majesty's and Her ministers' needs in attracting and making political appointments to the bench are not within the scope of judges' considerations and inquiry for any reason whatsoever. That Royal Prerogative is not within that scope. Is it not curious that those who wish parliamentary review of ministerial nominations for the bench receive a deaf ear from the minister, yet others who wish to bring the minister's selection of candidates for consideration by the judiciary get the minister's ear? Consideration and inquiry into Her Majesty's Royal Prerogative of judicial appointment was not a purpose of Bill C-37 or of the Royal Recommendation attached to it. This, too, is an additional new proposition unsupported by the Royal Recommendation.

Honourable senators, I have confined myself only to the parliamentary and procedural irregularities of this particular amendment and not its merits. On September 22, I spoke to the exaggeration of the Judges Act, section 53(1), the mechanism for statutory charge of judges' salaries against the Consolidated Revenue Fund. I was disappointed that the committee heard no witnesses on this important issue. In light of this report's irregular amendment, the Judges Act, section 53(1) is not intended to draw on the Consolidated Revenue Fund to defeat Parliament's interests, as in Bill C-37, and more so in this defective amendment. Section 53(1) is also not intended to put the finances of the country and the Minister of Finance into any inquiry and consideration of judges by pretending an apparent innocence and nobility of studying the adequacy of judicial compensation.


Honourable senators, I further submit that this proposed amendment is out of order again because it also requires a Royal Consent for two reasons, both on the patronage aspect and on the Royal Recommendation aspect of the Royal Prerogative.

In Beauchesne's sixth edition, citation 726 tells us:

The Royal Consent is generally given at the earliest stage of debate. Its omission, when it is required, renders the proceedings on the passage of a bill null and void.

I listened when these amendments were moved in committee by Senator Joyal. I listened to Senator Joyal carefully today when we got to Notices of Motions. I watched carefully to see if he would rise to put down a notice of an address to Her Majesty or to his Excellency the Governor General for a Royal Consent. There was none. What we have here is a situation where a motion is proceeding needing a Royal Consent with no indication from the private member who has introduced it that he is planning or hoping to move the motion for an address.

I repeat:

The Royal Consent is generally given at the earliest stage of debate. Its omission, when it is required, renders the proceedings on the passage of a bill null and void.

This committee's amendment is a totally new proposition, tantamount to a new bill. We could call it "Bill C-37 the second." I am asking senators at this stage to review this committee's proposal carefully because of this irregularity which stridently proposes encroachment into Parliament's control of the public purse, into the Royal Prerogative in respect of the public treasury and its exercise by the Minister of Finance, and into the Royal Prerogative in respect of judicial appointments and section 54 of the Constitution Act, 1867.

The proposed subclause amendment is clearly out of order. About this, Beauchesne's sixth edition, citation 715 states, in part:

A Speaker has, at the report stage, ordered that amendments made in committee be stripped from a bill...

House of Commons Speaker James Jerome, on April 23, 1975, ruled as follows:

Therefore, on the basis of the procedurally unacceptable stripped from the bill and that the bill be reprinted as otherwise amended and reported by the Standing Committee...

I ask His Honour, Speaker of the Senate of Canada, to strike this portion of the report out of the report before it is put to a vote.

Honourable senators, as always, I speak as a Liberal senator. I defend Liberal principles and I ground myself in the Liberalism of individuals like William Wilberforce, Lord Shaftsbury and William Ewart Gladstone. Two grand principles of Liberalism are the sovereignty of Parliament and Parliament's jealous hold of its own law of Parliament - the lex parliamenti - and its constitutional conventions. Constitutional conventions are a political morality. One such convention of political morality is the political concept of judicial independence. Liberal Ministers of Justice for 130 years have declined to put the words "judicial independence" into statute. Its political nature, its elusive, mystical quality, its centuries of parliamentary struggles are not well served by reducing it to two simple words, easily mechanically pummeled into its tyrannical opposite, into a narrow legal term allowing judges to be judges in their own cause. The real rights of judicial independence redound to the judged, not to the judges. Judicial independence is a politically moral concept by which we politicians protect judges, but the statutory rights redound to the judged and to the citizens of the land.

Honourable senators, in the administration of justice, these issues are most important. My love, in politics, as I was raised, is the proper relation between Parliament, the executive and the judiciary. It is for these reasons I went into politics. Judicial appointments interest us all.

I read recently about Bouthillier's and Klein's sociological studies of the patterns in the selection of candidates for judicial appointment. About these studies, Professor Peter Russell in his book The Judiciary in Canada: The Third Branch of Government, wrote:

What stands out in Guy Bouthillier's studies of the Quebec judiciary is the large number of judges whose legal career involved government work....A similar trend can be seen in the significant number of lawyers from the federal Department of Justice and other branches of the federal public service recently appointed to the Federal Court and the Ontario superior courts. William Klein's study draws attention to a different tendency: the importance of involvement in professional organizations, especially the Canadian Bar Association....Bouthillier's and Klein's research suggests that government service and involvement at the national level...are...the most frequented roads to the bench.

Honourable senators, I raise these issues and put them to you in the hope that these issues will be properly examined. I have researched the precedents. I have studied the matter carefully. There are many more precedents that I have not been able to cite because, as honourable senators know, I am bound by a time limit. What I am asking honourable senators to do here is to uphold this point of order and to thoroughly and carefully put the issue of the propriety, the regularity and the procedural properness of these amendments before us, and to uphold the principle that the business of a new amendment to any bill cannot defeat the Royal Recommendation or the bill's very purposes. If those had been the purposes of this bill, I say to you, honourable senators, the minister should have gone home to Alberta and stood before all of us and said, "This is what I want. I want as minister to put this new branch of law, the finances of the land, into this statute." I can tell you that the bill would not have received second reading if that had been the case.

I have said enough, honourable senators, for the time being. These issues have been raised. I found many precedents, including an important one from Mr. Diefenbaker, but the issue that I am putting before you bears on the second set of amendments. The first amendment, deleting the spousal clauses, which Mr. Justice Estey refers to as the "harem clauses," are before us properly. It is the second set of amendments that are questionable.

There is one last amendment which states that the commission may consider "any other objective" - whatever that means - "criteria it may consider relevant." I say that that is out of order because the original bill never intended this scope or these expanded powers, and if the minister, or whoever, wanted this expanded scope and these expanded powers, they should have been put before us initially when Bill C-37 went through the House of Commons and came here for first and second reading. This again is no simple little housekeeping amendment to a housekeeping bill. The number of housekeeping items are beginning to get a little tiresome.

I thank honourable senators for their attention on this matter. I am very aware that in many ways now I am a dinosaur upholding principles that are no longer widely known, widely identified or widely upheld, but I tell you, honourable senators, what we are doing by this proposed amendment is improper and wrong, and we owe it to the judges of this land to uphold the principles for which we have fought for 130 years. Honourable senators, it is very important. I have said enough.


Hon. John B. Stewart: Honourable senators, we are revisiting old ground. Some senators opposite will remember that years ago those of us on this side of the house insisted that some of our proposed amendments were in order, that they did not entail an appropriation.

Some years later, I participated in a discussion on Royal Recommendations. I believe that Senator Molgat was present at that discussion. Lo and behold, a genuine authority, an official from the Department of Justice, I believe, told us that there are appropriations but that there is something else; namely, virtual appropriations. When you create an office, the clear assumption is that, later, Parliament will be asked to appropriate the money to compensate the person appointed. The obvious implication of that argument is that, under the Constitution, the Senate could not make amendments which were appropriations or that entailed virtual appropriations because virtual appropriation is a form of appropriation. That was the argument put to us at that time.

A government cannot have it both ways. It cannot use the virtual appropriation argument to exclude Senate amendments and then proceed to sponsor amendments which are virtual appropriations according to their own definition. That is one point the Speaker will have to consider.

In passing, I will mention a second point. Some 10 years ago, the Committee on National Finance looked into the form of the Royal Recommendation as it now is. Some of you are very young. When I was in the House of Commons, the Royal Recommendation specified the amount of money that would be appropriated by a bill and the purpose for which that amount could properly be spent. Senator Bolduc will remember our discussions.

For the last 22 or 23 years, the form of the Royal Recommendations has been so vague that I question its propriety. It simply states that the Governor General is pleased to recommend any appropriation which is entailed by a bill. What does that mean? Is that language sufficiently precise to constitute a recommendation?

There is a report from the Standing Senate Committee on National Finance on this very point. I submit that the adequacy of this new form of the recommendation is so vague and imprecise that a good court of law would rule that it is not acceptable as an appropriation under the terms of the Constitution Act, 1867. However, I would probably not win that argument in a court of law in Canada.

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, Senator Cools has risen today and indicated that at least one amendment which was passed unanimously by the Standing Senate Committee on Legal and Constitutional Affairs might be out of order. I believe, therefore, it would be appropriate for us to look at our own rules to determine whether we have proceeded according to the Rules of the Senate of Canada.

I would refer to rules 97, 98, 99 and 100 which indicate that there is a procedure by which an amendment shall be made, there is a means by which it shall be reported, there is a means by which that report shall be considered, and there is a means by which we shall vote.

We have not yet completed that process at this point. However, it would appear that the report was presented in the correct fashion; that there was no debate the day it was presented, which was last Thursday; that the report came up for consideration today; and that Senator Cools exercised her option at that time to raise a point of order.

It then behooves us, I would suggest, honourable senators, to examine the amendments that have been proposed in this report and, in particular, the amendment with regard to which Senator Cools has raised concern, which relates to clause 6 of Bill C-37.

It was clear in the initial legislation, that which was given a Royal Recommendation, that a commission was to be established and that the work of this commission was to examine judicial salaries. The issue which was raised most vigorously by Senator Cools in her original presentation to this chamber related to section 100 of the Parliament of Canada Act and the right of Parliament to set the salaries of judges.

My understanding is that the committee carefully examined that issue, and its concern, which led to this amendment, was that the powers of the commission seemed to be extremely open-ended. The amendment proposed to provide some raison d'être for the commission. Therefore, the members of the Standing Senate Committee on Legal and Constitutional Affairs proposed an amendment which stated that, in conducting its inquiry, the commission "shall consider...," and listed what they believed the commission should consider in making its recommendation to the Parliament of Canada on judicial salaries.

Sections 567, 568, 569 of Beauchesne's Parliamentary Rules & Forms deal with amendments. It seems very clear that the amendment proposed by the Standing Senate Committee on Legal and Constitutional Affairs is in order. Section 567 states that an amendment may modify a question, and that is certainly what has occurred in this instance. The members of the committee have modified the parameters of what the commission might examine.

The amendment must be relevant. Members of the Standing Senate Committee on Legal and Constitutional Affairs certainly thought this amendment was relevant. The amendment may be amended by leaving out words or by inserting words. In this case, they chose to insert words. I believe that the requirements respecting the form and content of amendments, dealt with in sections 570, 571 and 572 of Beauchesne's, have also been met.

Honourable senators, I therefore suggest that this report of the committee meets the test of our own rules and that of Beauchesne's and ask His Honour to rule the point of order out of order.

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, this is an interesting point of order and I should like to have some time to do a little research on it. However, to the extent that it may be helpful to His Honour in reaching his decision, I will provide a few comments at this time.

I first looked at rule 101 of our rules. I did that in order to determine whether or not the proper form was followed in the report that we received from the Standing Senate Committee on Legal and Constitutional Affairs. I checked at the Table and it appears indeed that it has all been properly signed by the honourable chair of the committee.


I then turned to rule 18 to remind myself how points of order are dealt with. It is the Speaker who decides all points of order. It is also the Speaker who, when asked to decide any question or point of order, shall decide when sufficient argument has been adduced so that he or she is able to decide the matter.

We have been assured by the Speaker that he will read all of the debate, including that which was advanced during his absence, and come back with his decision. If that decision is to be given tomorrow, and if it is taken before those of us who first heard about this point of order as it was being raised have an opportunity to speak to the matter, then we shall not be able to help His Honour in reaching his decision.

On the other hand, if the decision comes on Thursday, then tomorrow we will have an opportunity to read the argument which has been advanced - a somewhat novel argument with some original points being raised therein - and bring further discussion to the point of order in a logical way.

Part of the problem I have is that it seems to me that the amendments brought to us are in order. Perhaps in order to decide in an a posteriori fashion rather than an a priori fashion whether or not these amendments are substantively in order, one must hear the debate on the amendments. In other words, one must understand the fullness of the amendments that the committee has brought before us. It places us, if we are to do so in a substantive manner, in the position where the substance of these amendments speak to some issue that may raise a concern as to their propriety in terms of our rules and procedures and our order.

Senator Stewart drew our attention to the test of the Royal Recommendation, which seems to be somewhat of a floating test, and it is difficult to anchor a decision against something that is as fluid as that. However, I do not wish to interfere. If His Honour feels that he has all the data to make that decision, we would be obviously, as in the past, most respectful of that decision. On the other hand, if the decision is the day after tomorrow, then we might wish to contribute other remarks on the point of order.

Senator Cools: Honourable senators, I am not sure whether I fully comprehend what Senator Kinsella is saying. For a moment in time I thought he was proposing to adjourn the debate on this point of order, which is a little unusual. However, anything is possible.

Perhaps we could make it crystal clear. Is the honourable senator asking for more time to debate the issue? What exactly is the honourable senator saying?

Senator Kinsella: My understanding, honourable senator, is that it is not in order to move the adjournment of the debate on a point of order that is raised. According to rule 18(2) and (3) it is clearly at the discretion of the Speaker to determine when the Speaker has heard sufficient argument that in the Speaker's judgment the Speaker is able to render a decision on that point of order. Therefore, I would not, because I cannot, properly move an adjournment of the debate on the point of order.

Senator Cools: Honourable senators, we have had instances in this chamber where debates have been adjourned on points of order. Because it is unusual, is the honourable senator saying the he is not proposing a motion for adjournment of the debate. I wish to be crystal clear on that point.

Senator Kinsella: That is what I am saying with regard to point of order, which I believe is barricaded in terms of our rules.

I did attempt to make the point respecting the opportunity to make a substantive contribution to the point of order discussion we are having, fully respectful of the rule which says it is up to the Speaker to determine when the Speaker has heard enough. The Speaker, before he left to receive a visiting delegation, advised us that he would read the remarks made in his absence and come in with a decision. If that decision is tomorrow, then that would obviate the opportunity for me, upon reading the remarks of the Honourable Senator Cools and studying them, to add something further to this debate on the point of order. If, however, the decision of the Speaker is that his decision on the point of order will be handed down the day after tomorrow, then that opportunity to speak on it tomorrow would be possible.

I simply lay it out in those terms.

Senator Cools: It is very interesting that Senator Kinsella, as always, is full of novelties and surprises which are interesting and exciting, at least intellectually.

I should like to respond to a couple of things said and also to thank all of those senators who have intervened so quickly. I am mindful that we have reached an era in our communities where these matters are not widely known or no longer widely upheld. I was interested that Senator John Stewart referred to the Senate's study on the Royal Recommendation. As I was a very active participant in that particular study on the Royal Recommendation, I am well acquainted with the study and the conclusions. I am also well aware that the government has brought forth very little action on what we thought were major considerations.

I have noticed that Senator Carstairs spoke eloquently, as she always does.

Hon. Senators: Order, order.

Senator Cools: Senator Carstairs spoke eloquently, as she always does, and laid out very pointedly and in a very direct way the steps that committees go about doing their business. I have no quarrel with those steps at all. I wish to make it clear that I did not raise any issues around those particular steps, or around the set of rules that Senator Carstairs articulated and outlined from our own little red rule book here. Let us be quite clear that we are studying what I have raised and we are not studying that which I have not raised, because I have not taken issue with the business of how the committee conducted itself in respect of those rules.

What I took particular issue with is the issue articulated by Senator Carstairs, because therein lies the problem. Senator Carstairs used the word "modification." Honourable senators, nothing has been modified, nothing has been limited or constrained or confined. As a matter of fact, the movement is in the opposite direction. Far from being modified or confined or limited or whatever, it has been expanded, it has been augmented, it has been enlarged; whichever particular words one chooses to say. I have been trying to keep my remarks pointed and within the subject matter before us, that of the procedural questions. What I have been trying to say, and what I think I have said, is that this expansion is being done in the name of a limitation. An expansion is not a limitation; a limitation is not an expansion. Furthermore, a criterion is not a power. What has been given in this particular amendment is much more than was asked for by Bill C-37.


Basically, if you look at how this amendment is constructed formally, it is an enlargement of the enabling clause. Therefore, amendments to the enabling clause enable. They do not disable; they enable. That is to say, they build up power. There is a whole body of intellectual thought around the development of drafting and the development of constitutional rules. But enabling is neither disabling nor limiting. Enabling is precisely that - enabling and expanding.

What has been enabled or is proposed to be enabled by what the Senate committee did is far more than what was intended in the original Bill C-37. I should like to make that clear.

Senator Carstairs says, very ably, that I raised many concerns - and I did - but all the concerns that I raised were in the direction of limiting, never amplifying or expanding, the commission's powers. What we are dealing with here is an attempt somehow to discover whether or not "enabling" equals "disabling" and whether or not "expansion" equals "limitation."

A senator told me about a particular concern earlier. I have not gone on to that ground of the Senate's privileges and powers according to the BNA Act, section 18. If anyone were to ask - and no one has - whether or not this proposal has encroached on the powers and privileges of the Senate, I would say, unequivocally, "Absolutely, yes." Again, however, we here in the Senate chamber labour under enormous disability. As jurisdictions go in the world of upper chambers, we have developed no parliamentary jurisprudence on the question of our rights and powers and privileges.

What has happened - and, I do not want to go back to the days of Senators Frith and Barootes - is that certain tendencies and abilities are falling into a sort of disuse. Senators Frith and Barootes used to have an exchange where Senator Barootes would say, "If you do not use it, you lose it." As I said before, the substance of the proposals are one thing. However, honourable senators, it takes an enormous stretch of the imagination and a lot of fiction to believe that to give an empowerment and to put into statute vague words such as "financial security" and "judicial independence" could in any form or fashion be limiting.

I am not that naive any more.

Hon. Jerahmiel S. Grafstein: Honourable senators, again, I find myself interested by this debate. I wish to ask Senator Cools a question because I am having difficulty following her logic. I have not had an opportunity to listen too carefully to her speech, but I refer to the rule to which the Deputy Leader of the Government referred, namely, citation 567 of Beauchesne's, which states:

The object of an amendment may be either to modify a question in such a way so as to increase its acceptability or to present to the House a different proposition as an alternative to the original question.

When Senator Cools says to us that the amendments enlarge or differentiate, or whatever, that really does not appear to be the test of Beauchesne. The test appears to be accepted "to increase its acceptability," which has nothing to do with enlargement or detraction but has to do with "its acceptability or to present to the House a different proposition..."

Citation 568 is the relevancy test. It states:

It is an imperative rule that every amendment must be relevant to the question on which the amendment is proposed. Every amendment proposed to be made, either to a question or to a proposed amendment, should be so framed that, if agreed to by the House, the question or amendment as amended would be intelligible and consistent with itself.

Unless I am misreading or mishearing Senator Cools, I do not think the test is enlargement or detraction as much as acceptability or, alternatively, whether it is framed in an intelligent and consistent fashion in and of itself.

Those are citations 567 and 568 to which the Deputy Leader of the Government referred. I am having difficulty following Senator Cools on this, but, perhaps, she might briefly respond.

Senator Cools: Honourable senators, perhaps I could help Senator Grafstein in his difficulty to follow me. I am sure he does not want me to start from the beginning and go through it again. However, I would be happy to do so if that is what he wants me to do.

I appreciate Senator Grafstein's attempt to understand this - in fact, I encourage it - but I am trying to say that what has been presented here is a contrary principle and a contrary proposition to what was voted on at second reading. Not only is it contrary, but I would go so far as to say that it is hostile. The propositions are also hostile to the law of Parliament and hostile to the privileges and powers of immunity of Parliament.

We could continue to debate this indefinitely, but the real question before us, and the one upon which we should make the determination, is: Would the proposition that has come in here, in this guise of an amendment, have passed second reading? I would submit to Senator Grafstein that it would not have passed second reading because senators like myself would have made sure that it did not.

Hon. Brenda M. Robertson: Honourable senators, it is obvious that the opposition has not had sufficient time to examine the content of Senator Cools' point of order and the comments of others in this chamber.

Although it is your prerogative, Your Honour, to close the debate when you feel that you have heard sufficient background on this matter, I would ask whether you want me to adjourn the debate - which may be offensive, although it has been done before - to, perhaps, extend the debate for another day or two so that we have the opportunity to properly address this issue.

I would agree to whatever terminology you prefer to use, Your Honour, although adjourning the debate has been used before. However, if that is not sufficient, I should like to ask you to extend the debate now to another day.

Hon. Lorna Milne: Honourable senators, I should like to share with my honourable colleagues the feelings of the committee when we studied this bill and when we discussed the amendments.

It was the unanimous point of view of the committee that these criteria added to clause 6 did not, in any way whatsoever, expand the scope of the bill. In fact, the bill as it originally stands, the powers of this commission, the things that this commission could consider, were completely untrammelled. The discussion within the committee was an attempt to narrow the sorts of things that the commission could look at to come to its decision.

I wish to point out that the commission's role continues to be advisory. The report of the commission will be tabled in both Houses by the Minister of Justice.

In addition, under this bill, there will be established an express requirement that the report of the commission be tabled in both Houses and referred to the appropriate committee, either the House Standing Committee on Justice and Human Rights or the Standing Senate Committee on Legal and Constitutional Affairs. I submit for your consideration that this is not an expansion of the powers of this commission; it is a drastic narrowing of them.

Senator Cools: Honourable senators, I should like to respond to what Senator Milne had to say. I understand that, yes, the committee was unanimous. All that tells me is that it might have been unanimous in its error. That in no way speaks to the fact that there may be an error or irregularity. The fact that people are uniformly unanimous to an irregularity does not make it regular.

Senator Milne has just raised an amazing concern again, basically suggesting that more equals less. It is an interesting thought.

Senator Milne: Does less equal more?

Senator Cools: It is an interesting concept. As I said before, expansion equals limitation.

I should also like to draw the attention of honourable senators to the clause of Bill C-37 which was just referred to by the honourable senator and an important consideration in that particular regard. I had noticed that, and I had planned to raise it. Clause 26(6.1), as Senator Milne just indicated, states:

A report that is tabled in each House of Parliament under subsection (6) shall, on the day it is tabled or if the House is not sitting on that day ... be referred by that House to a committee...

Honourable senators, Senator Milne has proven my point for me, and I thank her for doing so. Here again, the bill proposes the guideline of an outcome of a vote of a House of Parliament. It takes a vote of the House of Commons or a vote of the Senate to refer any matter to a committee. I thank Senator Milne for bringing forward yet again another encroachment into our powers and privileges and immunities.

I repeat that it says here that the report be referred to that house. No statute can ordain that any report introduced into this chamber be referred to any committee. The referral of any report to any committee is a question for the house as a whole to decide upon.

In any event, I think the point is clear. However you cut it, this is an amendment to an enabling clause. Amendments to enabling clauses must enable; otherwise, they would be put elsewhere in another clause. Either the committee or the drafters of the amendment was very poor - they had to be very poor if they do not know the difference between the two - or we are all involved in a little bit of imagination.

Senator Grafstein: Honourable senators, I spoke without fully looking at the rules with respect to subamendments, and perhaps the Speaker could also refer to citation 580, which is somewhat different from citations 567 and 568. I do not want to mislead myself, Senator Cools, or the Speaker. Beauchesne's, Citation 580, refers to a subamendment. In that citation, it states:

It should not enlarge upon the scope of the amendment but it should deal with matters that are not covered by the amendment.

I do not know whether Senator Cools was speaking about an amendment or a subamendment. If it was a subamendment, her principle about enlargement might have been correct and my comments about it incorrect. I did not wish to mislead her or His Honour.

Hon. Eymard G. Corbin (The Hon. the Acting Speaker): If no other honourable senator wishes to speak on the point of order, I wish to make a comment. Our practice has been that honourable senators may speak several times on points of order. This is the way it has been in the past, and I would not want a misunderstanding if I have allowed several senators to speak more than once.

As well, the responsibility to determine when sufficient debate has been heard on the subject is clearly that of the Speaker. I do not believe that accepting adjournments in that case would be proper in our system. However, the Speaker can decide when the Speaker has heard sufficient argument. I have received extensive comments today, which I will certainly read carefully. I am sure other senators will want to do the same. I will be prepared tomorrow, if the house agrees, to hear further argument on the subject. We would thus conclude tomorrow, but not later, any further argument, and I will read all the material carefully.

Is it agreed, honourable senators?

Hon. Senators: Agreed.

Debate adjourned.

Solicitor General

Commission of Inquiry into Treatment of Protestors at APEC Conference by RCMP-Provision of Funds for Legal Counsel for Students-Motion-Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Carney, P.C., seconded by the Honourable Senator Bolduc:

That the Senate supports the granting of funding for legal counsel to complainants at the APEC hearing in Vancouver before the RCMP Public Complaints Commission.-(Honourable Senator Graham, P.C.).

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, this motion is standing in the name of Senator Graham. If he is speaking tomorrow, I can wait and speak on Thursday, but if not, and if it is satisfactory with the other side, I should like to make a few remarks on the motion today.

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, that would be agreeable with the understanding that when Senator Kinsella completes his remarks, the matter will remain standing in the name of Senator Graham.

The Hon. the Acting Speaker: Is it agreed that Honourable Senator Kinsella will speak and the matter will remain standing in the name of the Honourable Senator Graham?

Hon. Senators: Agreed.

Senator Kinsella: Honourable senators, one of the reasons I wanted to speak today on this motion relates to the circumstances that have evolved since Senator Carney last spoke on this matter on Thursday. Of course, I am referring to the fact that on Friday, the chair of the RCMP Public Complaints Commission informed the commission hearing that an allegation had been made by a RCMP constable that he, Mr. Morin, the chair, had prejudged the outcome of the hearing. I believe the chair, Mr. Morin, did the right thing, which was to take steps to refer that matter to the Federal Court for determination.


If the matter is before the Federal Court, then it seems to me that it makes the Senator Carney's argument that much more powerful. The argument she is making is that even at the level of the inquiry being conducted by the RCMP Public Complaints Commission, the students ought to have legal counsel available to them. That is the substance of Senator Carney's motion, which I support.

I support it mutatis mutandis today. I support it all the more today because this matter has now moved into the Federal Court.

The argument of the government and the Solicitor General has been that the students do not need legal counsel because this is an informal process, notwithstanding the fact that other parties such as the RCMP have counsel, the government has counsel, and the commission itself has counsel. That does not support the argument that this is an informal process. It is hardly an informal process when the rights of many parties to that hearing are before the federal court. I cannot understand why these changed circumstances would not have caused the Solicitor General to recommend to the government - or to the Langevin Block where this issue is probably being micromanaged - that legal counsel be made available to the students to represent them before the federal court.

For some time we have been attempting to help the government realize that the allegation of human rights oppression at the Vancouver APEC Summit constitutes a serious human rights question which speaks to the core values held by Canadians. Frankly, this issue will not be silenced. It is not in keeping with the high value that Canadians place on fairness and human rights that this issue be blanketed over. This story, notwithstanding all of the desires and hopes of the spin doctors, will not be spun away. It is a fundamental issue that speaks to the integrity of our system of governance; it speaks to the core values that all Canadians share.

Honourable senators, arrests of Canadian citizens occurred with no charges being laid; the freedom of expression exercised by displaying signs and posters was interfered with; and students were pepper-sprayed. Indeed, in today's paper it is interesting to see an article where some are suggesting that pepper-spraying leads to death.

Evidence that we receive as observers indicates that instruction for these human rights oppressive measures emanated from the office of the Prime Minister. That is the fundamental issue from my standpoint. With all the good intentions in the world, did officials or functionaries in the Prime Minister's Office issue instructions to the RCMP to comply with instructions that had the effect of suppressing the fundamental freedoms of Canadians?

One is reminded, honourable senators, of the dictum of Lord Atkin that power tends to corrupt and absolute power corrupts absolutely. This is no abstract principle from the last century. It has an uncanny application in our analysis of a present day matter.

Honourable senators, much reflection has been given recently to the matter of the localization of power here in Ottawa, specifically in the office of the Prime Minister. The recent past has seen the power of the federal executive move away from the federal cabinet and be placed in the hands of officials in the Langevin Block. All parliamentarians, of whatever partisan persuasion, must be immensely concerned with that phenomenon. Indeed, I believe that we share a duty as parliamentarians, a duty to our system of governance, to sound an alarm at this development.

The most effective mechanism available to hold in check the exercise of awesome power, which is the reality of the power available to whatever federal government happens to be in office, is the check of the two Houses of Parliament. It is the watchful Parliament with an efficient and courageous opposition, together with courageous parliamentarians who support the government and from whom, perhaps, the exercise of great fortitude is more of a virtue they must exercise being supporters of the government of the day.

In the matter of APEC, the Parliament of Canada, the House of Commons and we here in the Senate are called upon to rise to the occasion to safeguard the practice of freedom, and to ensure that our declarations in support of human rights are not simply high-sounding, theoretical propositions, whereas the reality is an illusion. Rather, honourable senators, we must see to it that concrete and practical steps are taken to harness and to constrain any apprehended abuse of power. Thus, it seems to me that the Senate of Canada will want to focus on the remedial and procedural safeguards that must be brought to bear on this tragedy which is having the effect of a loss of public confidence in the practice of freedom in our country.

Our first challenge, honourable senators, is to ensure the objectivity of the tribunal or commission of inquiry that investigates this matter. Some of us have suggested, indeed argued, that the RCMP Public Complaints Commission is not the most effective vehicle to use to do this job. The government and others have argued that it is an effective vehicle.

I would have much preferred, and indeed I have said so in this house, that there be an independent judicial inquiry under the Inquiries Act. Under the present circumstances, as they developed on Friday, I will continue to advocate that it is essential such an independent judicial inquiry be set up since the RCMP Public Complaints Commission inquiry has been severely compromised. It can never meet the test of justice being seen to be done.

What are some of the reasons the RCMP Public Complaints Commission of inquiry has been found wanting? Certainly, the allegation that the chair of the panel itself has prejudged part of the outcome as it affects some RCMP conduct - and that is now the subject matter before the federal court - is a telling allegation that affects our confidence. Hopefully, the federal court will be able to call evidence, hear the arguments, and conclude that there is no apprehension of bias.

Some have said that the chair and the panel members are political appointees of the government and contributors to the governing party. That, in and of itself, is not offensive to me. However, in terms of public perception, given all of the circumstances surrounding this issue, it does diminish the level of confidence. We know that the commission operates statutorily. It operates under a statute which was passed by this chamber.


At the same time, we have Bill C-44 before Parliament in the other place. That government bill, presented in the other place, is proposing that the chair of the RCMP Public Complaints Commission not be appointed for a term certain but be appointed at pleasure.

If that is the mind-set, if that is the public philosophy of the government towards this kind of commission, then it would add to the public concern and lack of confidence because of the undue pressure that would result.

The Solicitor General is the person to whom the RCMP Public Complaints Commission must report. If we accept the evidence that has been made public with reference to his infamous airplane conversation, there has to be great concern with whether or not the Solicitor General himself has compromised this process.

Regarding the PMO, I will not use the colourful language of describing the Langevin Block as the home of the "forces of darkness," but that phrase is out there and I am concerned that that kind of perception is abroad in the land, where the highest political office in our country is being perceived in some quarters as a place where devious and bad things are perpetrated. Irrespective of the government or the party that is in office at a given time, I do not want, as a Canadian, to see that kind of perception abroad in the land where one thinks that the forces of darkness are driving and instructing the police and are trammelling the rights of Canadians.

Honourable senators, the PMO, as we understand, is in effect a major co-respondent in this APEC case. Yet it is the PMO that approves the appointments of the commissioners. It is the PMO that gives the instructions to the Solicitor General as to his decision on not funding legal counsel for the students before this inquiry. The perception of justice not being done is abroad.

A very famous international human rights student, Sean MacBride, is well known to international jurists. He once said that although courts are able to judge objectively in most circumstances, a problem arises when the conduct of the state itself is at issue. It becomes difficult to ensure complete objectivity and justice wherever a government bureaucracy has embarked on a program that infringes basic human rights and wherever an offending government dominates or significantly influences the adjudicators.

I fear, honourable senators, that that might be what is happening with reference to the tragedy of APEC.

With reference to the specific motion of Senator Carney then, what are some of the issues on which we must focus? The first issue, surely, is the test of due process. What are some of the due process and natural justice reasons?

The Hon. the Acting Speaker: Honourable senators, I regret to interrupt the honourable senator but his 15 minutes has expired. Is leave granted for him to continue?

Hon. Senators: Agreed.

Senator Kinsella: Honourable senators, what are some of the due process and natural justice reasons to support Senator Carney's motion?

First, if one were to accept the government's spin that the RCMP Public Complaints Commission is an informal process and that somehow the so-called informality absolves the need to respect the right to have counsel, then the presence of the army of lawyers representing the government and the RCMP would indicate that they have not themselves accepted this informality stand. Nor should they. I believe the government should be represented by trained counsel. I also believe that the RCMP officers have the right to representation by legal counsel at that hearing.

Let us not lose sight of the fact that witnesses who give testimony at that hearing, should it continue, do so pursuant to the Canada Evidence Act. Therefore, they should have available to them the advice of counsel.

Recall, honourable senators, the words of section 15 of our Charter of Rights and Freedoms which makes it clear that all in Canada are equal before and under the law. Remember the words that follow - that all are to have equal benefit of the law.

Yet at the now adjourned Vancouver hearings, the government has the benefit of the law in the provision of counsel for itself. The RCMP has this benefit but the students do not have this benefit. I think most fair-minded Canadians find that simply wrong.

The right to counsel is not a right that is theoretical. It is a right recognized in many human rights instruments. It is a right, for example, recognized in the International Covenant on Civil and Political Rights which says that all persons shall be equal before the courts and tribunals.

Article 14 of that covenant provides the right to be tried in one's own presence and to defend oneself in person or through the legal assistance of one's own choosing. In other words, the right to have real assistance assigned is a principle that is well established.

Honourable senators, these kinds of arguments have been made heretofore by people such as Warren Allmand, the President of the International Centre for Human Rights and Democratic Development, himself a former solicitor general.

On October 15, I participated in a workshop along with Mr. Allmand and the current Solicitor General. The theme was human rights and protection of society and the role of citizens and government.

Mr. Allmand argued for the Solicitor General that he sees a need for the federal government to establish a pool of funding to be made available to citizens who go up against government or up against big business in quasi-judicial settings such as the RCMP Public Complaints Commission.


Mr. Allmand made it clear that some means should be found to ensure that these people have legal representation.

Honourable senators, I will conclude by underscoring that, given the circumstances that have developed and seem to be developing daily around this sad matter of the APEC conference in Vancouver, and particularly since Friday, the rights of all of the participants are the subject matter of a proceeding before the Federal Court of Canada.There is no doubt that all parties must be represented by legal counsel before the Federal Court, and that includes the students.

Therefore, I hope that all honourable senators will find it possible to make the independent judgment that I know we are capable of making, by resisting those who like to exert pressure and supporting this motion of my colleague Senator Carney.

The Hon. the Acting Speaker: As agreed earlier, this matter remains standing in the name of the Honourable Senator Graham.

Debate adjourned.

The Senate adjourned to Wednesday, October 28, 1998, at 1:30 p.m.