Thérèse Casgrain-Champion of Women's Suffrage in
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
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.
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
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
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. 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
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
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
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.
Undermining of Position of Quebec Liberal Leader by
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
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
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
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
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
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!
JosÉ Ramos-Horta-Visit of Nobel Laureate and East
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
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.
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.
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
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.
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,
Report of Executive Committee Meeting in Lima, Peru
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.
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.
Treatment of Protestors at APEC Conference by
RCMP-Provision of Funds for assistance of Students at
Related Federal Court Proceedings-Government
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
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
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
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
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
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.
Unique Character of Quebec-Enshrinement in
Constitution-Statement of Prime Minister-Government
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
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
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
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
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.
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.
Flight Clearance for Sea King Helicopters-Government
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
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
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
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
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.
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.
Third Reading-Motions in Amendment-Debate
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
Then he carries on to support the work that had been done. He
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.
Hon. Ron Ghitter: As a result, honourable senators, I have a
number of amendments to table for the consideration of the
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
"(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
(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
(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?
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.
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
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
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
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,
...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
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
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
(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
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
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
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
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.
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
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 precedents...I...direct...that the
procedurally unacceptable amendment...be 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
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
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
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
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
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
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
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
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
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
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
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
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
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
I have noticed that Senator Carstairs spoke eloquently, as she
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,
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
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
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
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
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
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
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
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.
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
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
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
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 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
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
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
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
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
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
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
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
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
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.
The Senate adjourned to Wednesday, October 28, 1998, at