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Debates of the Senate (Hansard)

1st Session, 36th Parliament,
Volume 137, Issue 87

Wednesday, October 28, 1998
The Honourable Gildas L. Molgat, Speaker


THE SENATE

Wednesday October 28, 1998

The Senate met at 1:30 p.m., the Speaker in the Chair.

Prayers.

[Translation]

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the centre gallery of a distinguished delegation from Cameroon's National Assembly, led by His Excellency the Right Honourable Cavaye Yeguie Djbril, Speaker of that country's National Assembly. On behalf of all senators, I extend a welcome to our distinguished visitors from Cameroon.
[English]

SENATORS' STATEMENTS

Women's History Month

Ellen Fairclough-First Female Federal Cabinet Minister

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, in my continuing celebration of Women's History Month, I should like to present to you our first female federal cabinet minister, the Honourable Ellen Fairclough.

Ms Fairclough was a self-made woman, climbing the political ranks of the City Council of Hamilton to become deputy mayor. She was first a defeated Progressive Conservative candidate and then a winning candidate, a member of Parliament, and then a cabinet minister.

Ms Fairclough was an ambitious woman. She ploughed through many obstacles to achieve her goals. Although she had a traditional upbringing, she was determined to hold her own. Unknown to her employer, she began her first job at the age of 12. She began to work full time at the age of 16. She studied accounting at night. This led to jobs with the Bank of Nova Scotia and, later, with a stockbroker.

In 1931, she married David Henry Gordon Fairclough and in the following year had their only son, Howard. By this time, Ms Fairclough had become a competent accountant and auditor. However, the economic depression dictated that she should stay at home and look after her family. She could not be held back for long. She looked after her son during the day and began working nights for a broker.

Within years, she became a certified public accountant and established her own accounting practice. In her office, she hired only female employees. Despite her busy career and her devotion to her family, she also found time to participate in the Imperial Order of the Daughters of the Empire, the Dominion Council of the United Empire Loyalists, the Canadian Wholesale Grocers' Association, and the Zonta Club, a women's service organization.

Ms Fairclough ran for municipal office for the first time in 1946. Although she lost by three votes, the man who beat her soon took a job elsewhere, and she was sworn into the City of Hamilton council. She then won consecutive elections in 1947, 1948 and 1949.

After her success at city hall had been duly noted by the Progressive Conservative Party, which she had long supported, she ran in the 1949 election as their candidate for Hamilton West. She was defeated but ran in a by-election the next year in the very same riding.

Ms Fairclough made a strong appeal for the women's vote. Her slogan was "Canada needs a woman's voice." No women had been elected in the 1949 election, and this gave her the opportunity to be blatant, and she took it. She actually used the radio and paid for ads to tell women that if her vote tally were low on election day, it would be because women had failed her. In proclaiming her election, one newspaper actually used the headline, "Canada is saved. We now have a women in Parliament." She would be re-elected in 1953, 1957, 1958 and 1962. She chose not to run after 1963.

As critic of the Ministry of Labour, she made her mark, particularly on issues of discrimination against women in the workplace. Many of her recommendations were part and parcel of the labour legislation introduced and passed by the government in 1956.

In 1957, she entered cabinet as Secretary of State and, although charged with rather routine responsibilities in her first appointment, it gave her the opportunity to speak across the country to women's groups where she conducted her personal crusade to get more women into Parliament. After the 1958 election, she became the Minister of Citizenship and Immigration and introduced a bill in 1960 that gave aboriginal people the right to vote for the first time, a long overdue piece of legislation in Canada.

In her retirement, she continued to be an active member of a number of organizations. Her latest public appearance came when she seconded Kim Campbell's nomination to the leadership of her party in 1992. Honourable senators, Ellen Fairclough is yet another of the devoted women who have contributed so much to Canadian society.

[Translation]

Canadian Parliamentary Association on Population and Development

Hon. Rose-Marie Losier-Cool: Honourable senators, as co-chair of the Canadian Parliamentary Association on Population and Development, I invite you to attend a workshop marking our association's first anniversary to be held tomorrow, October 29, from 9 a.m. to noon, in Room 237-C of the Centre Block. The workshop's theme will be adolescents' reproductive health and children's nutrition.

Thanks to the CPAPD, Canadian parliamentarians now have a unique opportunity to make the public more aware of population and development issues, to influence policy decisions, and to contribute to their development in accordance with the commitments made by Canada at international conferences and in its statement of foreign policy.

[English]

I wish to invite all senators and their staff to celebrate with us tomorrow the first anniversary of the Canadian Parliamentary Association on Population and Development. Several key speakers will be speaking on the topic of Adolescents' Reproductive Health and Children's Nutrition, including our colleague Senator Landon Pearson, Dr. David Alnwick, Chief of Health for UNICEF, and Dr. Roger Tonkin, President of the International Association of Adolescent Health.

Honourable senators, I hope to see you all at the workshop, or at least part of the workshop. However, if you are unable to attend, please send some of your staff so that they will receive all the information and, at the same time, help us make our first anniversary a successful event.

Inter-Parliamentary Union

Creation of Canada-Russia Parliamentary Group in Moscow, Russian Federation

Hon. Marcel Prud'homme: Honourable senators, I am pleased to be back and, as Queen Elizabeth said, it has been for me an annus horribilis for the last 10 months. I got two strikes against me, but I will show you I do not intend to get a third one.

Honourable senators, I was honoured to go to Moscow with the Inter-Parliamentary Union, which was extremely well led by Madam Sheila Finestone, an extraordinary activist who helped bring votes to Canada for our election in the United Nations. Following this trip, I was honoured to give to the Speaker of their upper chamber, where General Lebed sits, a letter of salutation from our Speaker and to announce to him that we would at long last create a Canada-Russia parliamentary group.

That group was created yesterday, and there are over 70 members who, without any publicity, have already joined. I am happy to inform you that Senator Eugene Whelan will be the first chairperson, with Madam Beaumier from the House of Commons, and an executive of 15, five of whom are senators. The five senators representing the Senate are the Honourable Senator Whelan, the Honourable Senator Pépin, and the Honourable Senator Losier-Cool. From this side, we have the Honourable Senator Grimard and myself.

We intend to be very active. You just received notice of the first activity. Tonight, at five o'clock, it so happens that the Canadian ambassador to Russia, the very distinguished Madam Anne Leahy, is here for consultation and wishes to meet as many of us as possible and to pass on the very latest news of what is going on in Russia. She will be available at five o'clock in the Francophonie room. That is why I distributed this page.

We will also, in due time, have a briefing from External Affairs on what Canada-Russia relations are all about and a visit from the new ambassador of Russia. There will be many activities. It is not a travelling club. It is a serious organization and I am sure that members of the Senate will show interest. It is at five o'clock tonight.

Many Russian members spoke very highly of the great honour that we senators bestowed on the Speaker of their upper house. When he spoke to us, if you will remember, it was unique. That precedent should be followed from time to time, where the Senate invites very special guests to speak to us without having to go through all the procedure of the other house.


Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw to your attention the presence, in the right-hand gallery, of federal and provincial parliamentarians from Argentina. They are Dr. Adolfo Rodriguez Saa, Governor of the Province of San Luis; Don Hector Omar Torino, provincial minister of government and education, and Professor Ines Aguerrondo, Under-Secretary of State for Educational Programming, Federal Ministry of Education.

On behalf of all senators, I wish you welcome here to the Senate of Canada.


ROUTINE PROCEEDINGS

Energy, the Environment and Natural Resources

Report of Committee on Fact-Finding Visit to Washington Tabled

Hon. Ron Ghitter, Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, tabled the following report:

Wednesday, October 28, 1998

The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to table its

FIFTH REPORT

Your committee, which was authorized by the Senate on Thursday, October 23, 1997, to engage the services of counsel and other personnel for the purpose of its examination of such bills, subject-matter of bills and estimates as are referred to it and to travel within and outside Canada now tables its report entitled Report of the Committee's Fact-finding Mission to Washington, D.C., May 31 - June 4, 1998.

Respectfully submitted,

RONALD D. GHITTER
Chair

Aboriginal Peoples

Notice of Motion to Authorize Committee to Permit Electronic Coverage

Hon. Charlie Watt: Honourable senators, I give notice that on Thursday next, October 29, 1998, I will move:

That the Standing Senate Committee on Aboriginal Peoples be empowered to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings.

Agriculture and Forestry

Committee Authorized to Meet During Sitting of the Senate

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

That the Standing Senate Committee on Agriculture and Forestry have power to continue sitting at two o'clock in the afternoon tomorrow, Thursday, October 29, 1998, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

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

Hon. Senators: Agreed.

Motion agreed to.


QUESTION PERIOD

National Defence

Grounding of Labrador Search and Rescue Helicopters-Government Position

Hon. Gerald J. Comeau: Honourable senators, my question is directed to the Leader of the Government in the Senate and is with regard to the Labrador Search and Rescue helicopters.

The government had a responsibility as well as a duty to ground the helicopters until the cause of the crash which occurred a week or so ago was known. The government chose instead to restrict flights to life and death situations. However, as the minister knows, all search and rescue involves life and death situations.

(1350)

I have given this serious consideration. Would the minister recommend to the government that the Labrador Search and Rescue helicopters be grounded once and for all?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, the answer, in short, is no, with the greatest of respect to my honourable friend Senator Comeau. He is well aware of and well acquainted with the areas which are served by Labrador helicopters. They fly from CFB Greenwood, Nova Scotia, as well as from other bases in the country.

I wish to emphasize again that the safety of the air crew and the safety of Canadians is of the utmost concern. We will not fly unsafe aircraft.

Senator Comeau: Honourable senators, the minister says that the aircraft are safe. The problem is that this helicopter crashed and the government still does not know why. The government is asking military people to fly in aircraft the safety of which is unknown. I stress again that we do not know why the helicopter crashed.

Until we know what happened, I ask the minister to recommend to the government that the helicopters be permanently grounded.

Senator Graham: Honourable senators, I will not make that recommendation, but I assure my honourable friend Senator Comeau that I will bring his concerns to the attention of the Minister of National Defence.

As I said yesterday, air crew will not be forced to fly the Labradors. We are sensitive to their concerns. If personnel are not comfortable flying the Labrador helicopters, they will not be forced to do so. We are particularly sensitive to the air crew stationed at Greenwood. It was their fellow crew members who died in that terrible tragedy just a few weeks ago.

While that decision was made by the Chief of the Air Staff, in consultation with the appropriate authorities, we are developing plans to bring in substitute crews to conduct the search and rescue missions of any squadrons whose crews feel anxious about flying the Labrador at this time.

Consideration of Reliable Alternative Aircraft for Search and Rescue Service-Government Position

Hon. Gerald J. Comeau: Honourable senators, since we still do not know what caused the crash, would the minister recommend as well to the Minister of National Defence that we consider other options to provide reliable Search and Rescue services for the coastal communities that depend on these services? I am not speaking of fixed-wing aircraft but of hovering aircraft - choppers.

Would the minister consider one of the many options that have been offered to the government to provide this service to our fishing communities in the coming weeks rather than asking people to board a chopper which is not completely reliable?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I am sure that all options will be considered. Again, I will bring the concerns of Senator Comeau to the attention of my colleagues. Senator Comeau is a well-respected parliamentarian here, as he was in the other place.

Although the cause of the crash is unfortunately not yet known, there is no evidence to support a finding of any systemic failure of the Labrador fleet. The responsibility to provide Canadians with effective Search and Rescue services and the need for our air crews to maintain their skills at a safe level are constants in our Armed Forces.

Options Available to Search and Rescue Crews on Flying Labrador Helicopters-Government Position

Hon. Eric Arthur Berntson: Honourable senators, I have a supplementary question for the Leader of the Government in the Senate. I have been rather puzzled over the last couple of weeks by the policy announcement that really is no change at all from what existed previously, that being that the decision on whether to fly lies with the captain and crew of the aircraft.

Why has that been emphasized over the last couple of days? It has always been the case that the captain and crew make the decision on whether they will leave the ground. Why has this been emphasized lately?

I believe it has been emphasized in order to provide a safe haven for politicians and senior military officers. Think about it for a minute. What position have you put these people in? The natural bias of these people is to jump in the aircraft and go out to rescue their fellow citizens. They will not wait to determine whether the tires are fully inflated or whatever. They will get in that aircraft and do their job. That is their bias. That is what they are trained to do, and they will do it.

We have gone a step beyond that now. We are asking them to do that, but in an aircraft the airworthiness of which is unknown. It is their call. It is their bias to take that aircraft up and save those people.

What happens if the mission fails? If the mission fails, the brass and the politicians will say, "Well, we gave them the choice. They did not have to fly. It does not matter that fishermen were out there in distress. It was their decision."

Would the minister not agree that this would be, at the very least, an abrogation of accountability by the people who should be accountable and not by the pilot and crew who are inclined to follow orders and, more important, to rescue their fellow Canadians from harm?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, the ultimate responsibility obviously rests with the government. However, it would be an abrogation of responsibility in the natural chain of command if we did not leave the final decision to those who are most responsible.

In this case, the announcement was made yesterday by the Chief of the Air Staff. Senator Berntson is a veteran himself and served with distinction at Shearwater, Nova Scotia, among other places. I am sure that he is quite familiar with both the Labrador and the Sea King aircraft. He would know that the final decision on whether to take off lies always with the captain and the crew.

(1400)

I want to assure my honourable friend that no one is looking for a safe haven. Every possible measure is being taken at the present time. In addition to the flight safety investigation, which we know is already under way, the Chief of the Air Staff has convened a board of inquiry to look into all aspects of the crash and the Labrador helicopter operations. The Canadian Armed Forces always convenes such a board when an accident results in death.

I want to assure members of this chamber, and indeed all Canadians, as much as I possibly can that under these very tragic circumstances every possible step is being taken to safeguard and protect the lives of those who serve all Canadians, namely, our Armed Forces. Under the circumstances, no one will be asked to fly in an unsafe aircraft.

Senator Berntson: Honourable senators, that is another little part of the puzzle. I have not yet heard anything that indicates to me that there has been any real determination as to whether or not these aircraft are safe or unsafe. They were grounded because of this accident.

This is not the first accident involving this particular type of helicopter. There have been others. However, this is the first accident involving this particular type of helicopter about which no one has any answers as to the reasons for its failure. I am told that the people at Boeing are saying they have never seen anything like this before. We are talking about helicopters that are 35 years old - older than I am.

Senator Graham: It depends on how you feel on any given day.

Senator Berntson: My honourable colleague has said that, ultimately, the final decision as to whether it is a "go" or a "no go" rests in the hands of the pilot, which is exactly right. However, he should not have to be the one to determine whether or not this type of aircraft is airworthy. That is a decision that must be taken by other people in the system. We have nothing before us - and I do not suppose they have anything before them - that would give a pilot any comfort at all as to the safety of this particular aircraft.

Earlier, the minister suggested that "We are very sensitive to the situation at Greenwood; that we understand perfectly well that if the air crews do not want to get on this type of aircraft, we will bring in substitute crews." To me, that makes no sense at all. This is still an unsafe type of aircraft. Now the government intends to bring in someone from some other place, someone who has never seen the aircraft, and that is supposed to make it all right. It is not all right.

If this government is doing everything possible to protect not only the consuming public but the crews who are satisfying the needs of that consuming public, then why would they not follow up on the suggestion of my colleague Senator Comeau and implement some plan to bring in airworthy aircraft on an interim basis, at least until we get some answers on these other matters? Out of an abundance of caution, why would your government not do that?

Senator Graham: Honourable senators, I have two points in response to the honourable senator's question. I mentioned the other day that I had visited one of the locations at which a Labrador was undergoing a refit. I inquired thoroughly as to how often these refits take place. I was told that there is hardly a part of the Labrador that is, in fact, 30 or 35 years old because most parts have been renewed or replaced. Indeed, the engine upgrades program has been accelerated. Every Labrador is undergoing a detailed maintenance inspection.

These measures represent a prudent approach to risk management, in the face of uncertainties which arose as a result of the crash.

With respect to the suggestion made by Senator Comeau, the military remains confident that we can perform search and rescue missions with current Canadian Forces assets. However, I had discussions with the Minister of National Defence this morning in this regard, and I understand that, as we are now down to 12 Labrador helicopters, the department will investigate the requirement, or the advisability - and I want to use my words carefully here - of investigating the possibility or advisability of using leased helicopters with civilian crews in order to supplement our capability until the arrival of the Cormorant in the year 2001.

It needs to be carefully understood - and this I want to emphasize - that this measure, if pursued, would not involve Canadian Forces air crews flying leased aircraft.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, that is quite an intriguing temporary alternative. Can the minister advise us where such crews and equipment exist, and with whom we can negotiate?

Senator Graham: Honourable senators, these are valid questions raised by the Honourable Senators Lynch-Staunton, Comeau and others. I wish I could answer that question. However, I do not have an answer for the honourable senator at this time. I will need to inquire again. I am sure that people in the military know where such aircraft might be available, but I do not have the answer to that specific question at the moment.

Senator Lynch-Staunton: Honourable senators, one answer is that they do not exist in Canada. Therefore, we will be humbled by having to go abroad to have other people fulfil a duty which we are unable to fulfil. One of the reasons for that situation is that we cancelled a helicopter contract which, had it been honoured, would have allowed the replacement of the Labradors beginning as early as next year.

Senator Graham: That may be true, honourable senators. However, it would not have prevented the loss of life which occurred three weeks ago in the forests of Quebec as a result of that emergency mission. I do not want to get into a debate at the present time about the relative costs, or why the original contract was cancelled, in the context of the recent tragic accident that is still so fresh in our minds. However, it may be an item that we would want to debate on another occasion.

Senator Lynch-Staunton: With pleasure.

Hon. Brenda M. Robertson: Honourable senators, while we are going through this miserable process, if a pilot determines that he and his crew will fly the Labrador, and there is another crash, who will accept responsibility? Will the pilot be blamed? Will the Minister of National Defence be blamed? Will the top military person be blamed?

Senator Graham: Honourable senators, I would not want to assess the blame in matters as tragic as these.

As I said yesterday, the restrictions have been lifted everywhere. Canadian Forces personnel everywhere have a chance to say "no" if they do not want to fly. There is always a way to move crews from base to base on a temporary basis, if need be.

If I remember correctly, some honourable senator suggested that the identity of the people who refuse to fly should be made known. I think I said in response that it would probably be a matter of public record, and it could become known rather quickly. However, I hope that it would be regarded in the realm of a privacy issue.

(1410)

Solicitor General

Charges of Destroying Ballot Made Against Student Protestor at APEC Conference-Government Position

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, the saga of the "forces of darkness" continues, and abuse of power continues to be a concern for Canadians, particularly today as we read in the Globe and Mail that Jonathan Oppenheim, one of the student APEC protesters who filed a complaint that is before the now adjourned RCMP Public Complaints Commission, was charged with unlawfully destroying a ballot during the last federal election. He has just been charged, 17 months later.

My question to the Leader of the Government is: Is this retaliation?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, my honourable friend will know that the government did not make this decision, and has no knowledge of the circumstances surrounding the charge.

Senator Kinsella: Can the Leader of the Government in the Senate tell this chamber how many Canadians who destroyed their ballot as a means of protest 17 months ago have been charged, to date, with unlawfully destroying a ballot during that last federal election?

Senator Berntson: And how would they know? It is a secret ballot.

Senator Graham: Honourable senators, under the Canada Elections Act, prosecutions are authorized by the Commissioner of Elections Canada. He is an independent official who is appointed by the Chief Electoral Officer, and Senator Kinsella's knowledge of such things would be perhaps as good as, or even better than, mine.

Delayed Answer to Oral Question

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, I have a response to a question raised in the Senate on September 29, 1998 by the Honourable Senator John Lynch-Staunton regarding the investigation into the sale of Airbus aircraft to Canada, status of letter to Swiss authorities, and possibility of withdrawal or negation.

Justice

Investigation into Sale of Airbus Aircraft to Air Canada-Status of Letter to Swiss Authorities-Possibility of Withdrawal or Negation-Government Position

(Response to question raised by Hon. John Lynch-Staunton on September 29, 1998)

The letter of request sent to Swiss authorities in September 1995 is part of a police investigation. The Government has apologized for the inappropriate language that was used in the letter of request and has informed the Swiss authorities, on two occasions in writing, that the language of the letter was to be interpreted as allegations only.

Should the Government be informed by the RCMP that they wish the letter of request be withdrawn from the Swiss authorities, we will comply with their request. The RCMP are responsible for the police investigation and they determine when it has concluded. There has been no indication from the RCMP that the investigation has concluded.

It is important to note that the settlement agreement of January 6, 1997, signed by Mr. Mulroney - a copy of which is appended, states:

"The parties have always acknowledged that the RCMP must continue investigating any allegations of illegality or wrongdoing brought to its attention."

"The parties acknowledge that the procedure used in sending the Request for Assistance to Switzerland in this case was the same as that followed in numerous previous requests for mutual assistance under both the current and previous administrations where such requests have always remained confidential. Because of this the Government of Canada did not foresee that the Request for Assistance would become public. Since it did, the Government of Canada has reviewed its procedure to ensure that the risk of this happening again is minimized."

"The parties accept that the RCMP on its own, initiated the Airbus investigation; that the Minister of Justice was not involved in the decision to initiate the investigation; and that before November 4, 1995, the Minister of Justice was not aware of the Request for Assistance and the RCMP investigation."

"The parties accept that the RCMP and the Department of Justice in sending the Request for Assistance to Switzerland acted within their legitimate responsibilities in this matter."

(For text of Appendix, see Appendix `A' p. 2092.)


Distinguished Visitor in the Gallery

The Hon. the Speaker: Honourable senators, before I call for Orders of the Day, I should like to draw your attention to the presence in our gallery of one of our former colleagues, the Honourable Richard Doyle.
[Translation]

ORDERS OF THE DAY

Parks canada Agency Bill

Third Reading-Motions in Amendment-Vote Deferred

On the Order:

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

And on the motion in amendment of the Honourable Senator Ghitter, seconded by the Honourable Senator Kinsella, that the Bill be not now read the third time, but that it be amended:

1. in the preamble, on page 2, by replacing line 29 with the following:

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

2. on page 8, by adding after line 8, the following:

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

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

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

3. in Clause 32, 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 and"; and

(c) by adding the following after line 21:

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

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

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

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

Hon. Roch Bolduc: Honourable senators, I listened very carefully to Senator Ghitter, who gave a magnificent speech and accurately analyzed the bill. I agree with all the amendments he proposed. When I studied the bill, I realized that an important principle was missing from this bill. I will explain.

The parks, as you know, that is, the national parks as opposed to national historic sites, are public resource lands belonging in principle to the people of Canada. Canadians rich and poor must be able to enjoy them under the principle of equal opportunity without personal income being a consideration. My philosophy is centre right. In this case I will make an exception and lean slightly centre left, although the left frightens me somewhat.

The principle is important. The people of Canada must have access to these public lands and national parks without money being a factor.

These are places where people, children and adults, can rest, enjoy nature and learn more about the environment without financial restrictions. There is always some limit, there are expenses. Our national parks are found pretty much throughout this great land. It seems to me that it does not make a lot of sense to have to pay to get into a park. I am not saying the bill stipulates that people must pay to get in. Clauses 4 and 5 of the bill are annoying and caused me to raise an eyebrow. I refer to clause 23.(1), and I quote:

The Minister may, subject to any regulations that the Treasury Board may make, fix the fees or the manner of calculating the fees to be paid for a service or the use of a facility provided by the Agency.

This is the parks agency. I will now quote clause 24:

The Minister may, subject to any regulations that the Treasury board may make for the purposes of this section, fix the fees or the manner of calculating fees in respect of products, rights or privileges provided by the Agency.

So, interpretation by well-intentioned officials is possible. We know the government is a bit short of money and wants to charge entrance fees pretty well everywhere. The government may decide to institute a small entrance fee of $5 or $10 for people who want to use the parks. In my opinion, free admission not covered by the act should be ensured. I think this represents a fine principle of fairness toward those who have less money. We must bear in mind that huge distances have to be covered. For a middle-class family from Montreal or Eastern Canada, travelling to the national parks in Alberta is a once-in-a-lifetime affair. There would be no sense in imposing admission fees on top of everything else.

Of course, if there are facilities such as hotels or campgrounds inside the park, it is only fair that visitors pay for these services as they would anywhere else. It seems to me that such an important bill should provide for free admission to national parks. As you are aware, under clauses 23 and 24 of the bill, the minister has broad discretionary powers. Giving powers to ministers is one thing, but caution ought to be exercised. We are paid to ensure that the government and its ministers and employees do not take actions that make no sense. We must hold such behaviour in check.

I will have an amendment to put forward later. I would like to point out that clause 4 in the English version states, and I quote:

[English]

The Minister is responsible for and has the overall direction of the Agency.

[Translation]

In French, it reads, and I find it much better:

Le ministre est responsable de l'Agence et fixe pour elle les grandes orientations à suivre.

It seems to me that it is more precise. The minister is responsible for the government's policies relating to national parks. In English, it says:

[English]

...the overall direction...

[Translation]

Perhaps the translators will tell us there is no difference, but it seems to me that the French is more precise. If they could make an effort and make the English as precise, it would be greatly appreciated. Especially since clause 6 states, and I quote:

[English]

The Agency is responsible for the implementation of policies of the Government of Canada...

[Translation]

Policy-making is usually a government responsibility. The minister is responsible for defining policies and for the overall direction. The minister should not take the place of the chief executive officer or board of directors of the agency or corporation. That is important. I have concerns in this respect. For instance, subclause 4(2) states, and I quote:

[English]

The Agency shall comply with any general or special direction given by the Minister...

[Translation]

The idea is that the agency must comply with any general or special direction given by the minister. What does "special direction" mean? Does it mean specific directives on a given subject within an administrative structure under the chief executive officer's authority? That will cause problems. As a former public servant, I can tell you that this will create friction between the minister and the agency's CEO. It is better to say the directives are general rather than specific. When ministers start meddling with specific directives, things always end up in a mess.

Motion in Amendment

Hon. Roch Bolduc: Honourable senators, as a result of this weighty intervention, prepared in the heat of Senator Ghitter's speech, I move:

That Bill C-29 be not now read the third time but that it be amended, in clause 25, on page 13, by adding the following after line 40:

(1.1) The Minister shall not fix a fee under section 23 or 24, or under any other Act under which the Agency provides services, facilities, products, rights or privileges, to be paid for admission to a national park.

[English]

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The Hon. the Speaker: Honourable senators, it was moved by the Honourable Senator Bolduc, seconded by the Honourable Senator Beaudoin:

That Bill C-29 be not now read the third time but that it be amended, in clause 25, on page 13, by adding the following after line 40:

(1.1) The Minister shall not fix a fee under section 23 or 24, or under any other Act under which the Agency provides services, facilities, products, rights or privileges, to be paid for admission to a national park.

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

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the amendment please say "Yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the amendment please say "Nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "nays" have it.

And two honourable senators having risen.

The Hon. the Speaker: Will the whips inform me as to how long the bell will ring?

Hon. Mabel M. DeWare: Honourable senators, pursuant to rule 67(2), I would ask to defer this vote until tomorrow at five o'clock.

The Hon. the Speaker: Honourable senators, under the rules, the whip of the opposition proposes that the vote be deferred to tomorrow at five o'clock.

[Later]

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the request for a deferred vote made earlier by the Honourable Senator DeWare. The request is perfectly in order. However, it was stated that the vote would be held at five o'clock, and rule 67(2) provides that the deferred vote be held at 5:30. Pursuant to the Rules of the Senate, then, the vote is deferred to 5:30 p.m. tomorrow.

Comprehensive Nuclear Test-Ban Treaty Implementation Bill

Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Corbin, seconded by the Honourable Senator Cook, for the second reading of Bill C-52, to implement the Comprehensive Nuclear Test-Ban Treaty.

Hon. A. Raynell Andreychuk: Honourable senators, it is with great pleasure that I rise today to speak to Bill C-52.

This treaty has been an arms control and disarmament objective of successive Canadian governments since the 1960s. As I noted in the debates of the other place, much mention was made of the government of the day. I wish to put on record the commitment of the government of John Diefenbaker to this issue in the early 1960s. I also want to put on record the achievements of the Honourable Joe Clark, who dedicated money within the Department of External Affairs and International Trade to this issue to make it a high priority.

The treaty and its achievement brings us one step closer to the real prize, one espoused by the overwhelming majority of Canadians - 93 per cent in the latest poll and by the public of the world over - namely, the total elimination of nuclear weapons and, with them, the threat of global nuclear annihilation which has hung over us since the dawn of the nuclear age.

By banning all nuclear test explosions in all environments for all time, the test-ban treaty severely constrains the ability of a non-nuclear weapons state to develop any but the most basic nuclear weapons capability. Similarly, the treaty restricts the ability of the five declared nuclear weapons states to make qualitative improvements to their existing nuclear weapons and removes completely their ability to develop advanced, new types of nuclear weapons. With a verification regime that can quickly and accurately detect, locate and identify nuclear explosions anywhere in the world, the treaty provides a solid framework for further nuclear weapons reductions.

The Comprehensive Nuclear Test-Ban Treaty was opened for signature at a special session of the United Nations General Assembly in New York on September 24, 1996, and has now been signed by over 150 countries. Canada played an important role in the treaty's negotiation, particularly in relation to the verification regime. Approximately 15 Canadian monitoring stations will be part of the international monitoring system, as well as one radionuclide laboratory.

Canada has also worked with like-minded countries such as Australia to find a way to open the treaty for signature and ratification, despite the resistance of countries like India and a small number of other countries to the treaty's finalization. Approximately 21 countries have now ratified the treaty, including two nuclear weapons states, namely, the United Kingdom and France, and 8 of the 39 non-nuclear states designated under the treaty as having nuclear energy or research programs. They, therefore, along with the nuclear weapons states, must also ratify the treaty before it can come into force.

Canada, one of the world leaders in nuclear technology for solely peaceful purposes, is a designated state. It is therefore most appropriate and important that Canada be one of the first group of countries to ratify the treaty. It might be argued that, given our continuing prominence in the preparation of the Comprehensive Nuclear Test-Ban Treaty organization, the body which will oversee implementation of the treaty, we should have ratified much sooner. However, I do not underestimate the importance and complexity of this seemingly straightforward legislation.

Bill C-52 criminalizes the carrying out of or aiding and abetting in the carrying out of nuclear explosions. It establishes a national authority to serve as a focal point for liaison between Canada and the CTBTO in Vienna, with other states party to the treaty, and obligates Canadian industry to report large-scale chemical explosions which might be confused with nuclear tests. Once passed, this legislation will allow Canada to ratify the treaty.

As I stated at the outset of my comments, the Comprehensive Nuclear Test-Ban Treaty is a long-sought and extremely important milestone on the road to global nuclear disarmament, and Canada should be justly proud of the considerable contribution it has made in helping us get this far.

However, as the nuclear weapons test in May of this year by India and Pakistan so graphically and disturbingly demonstrated, the test-ban treaty is not a panacea. Indeed, its very entry into force is in doubt so long as India and other nuclear countries such as Pakistan remain outside the treaty. Clearly, if we want to see the nuclear threat continue to recede, rather than looming up in even more dangerous guises than before, much more has to be done.

Given the extremely volatile situation in South Asia, the immediate priority must be to ensure that India and Pakistan do not step any closer to the nuclear brink by going beyond testing to deploying nuclear weapons. Every effort must also be made by the international community to help defuse tensions between India and Pakistan and thus reduce the risk of nuclear confrontation. However, without in any way excusing them for this potentially catastrophic step toward nuclear confrontation on an already extremely troubled subcontinent, all the responsibility cannot be laid at the feet of India and Pakistan. True, in the initial aftermath of the Cold War, the United States and Russia made impressive, unprecedented cuts in their nuclear arsenals.

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However, those arms control processes have now bogged down, both in the Russian Duma and in the United States Senate. Add to this NATO's continued, undue reliance on its strategic doctrine of nuclear response, despite the much-heralded 1990 NATO Summit Declaration in London that nuclear weapons would henceforth be "truly weapons of last resort." Worse still, rather than continuing the process begun by the START treaty reductions to steadily devalue and delegitimize nuclear weapons, American counter-proliferation policy appears to be dedicated to finding new roles for them.

In the face of this dangerous backsliding, Canada must seize every opportunity to promote constructive debate and new thinking among our NATO allies. We must insist that the review of NATO strategic doctrine, which is currently under way, include a revisiting of alliance nuclear policy to bring it fully into line with nuclear disarmament and non-proliferation obligations, to which each and every alliance member is committed under the nuclear non-proliferation treaty.

Urging new thinking and forward-looking action on the nuclear question in NATO councils is a necessity. If we are truly to play a leadership role in promoting principled, practical and realistic steps towards nuclear disarmament, then we must be prepared to publicly urge not just those outside of our circle of close friends and allies but those inside as well.

Canada's action was disappointing in its mild statements against France's testing in the Pacific. It was clearly a race to enlarge a nuclear capacity for France before ratification. Clearly, this gesture of technical compliance gave the wrong signals and emphasis to others. Small wonder that China, India and Pakistan followed suit.

It is also disappointing that Canada has not pursued more vigorously its assistance to Russia and the former Soviet Union states in demobilizing their nuclear capability. We started with a small fund in the early 1990s to help scholars so that they might remain within Russia and the Soviet Union, and not sell their knowledge and expertise to other countries. However, since then we have fallen off. As Canadians, we have not done much through our government to assist this demobilization, which is necessary in Russia. Neither have we asked our neighbours, our colleagues or our friends to do the same.

More perplexing is our lack of response to the troubled Arctic waters. Time and time again, both within Russia and elsewhere, concern has been raised in relation to the nuclear waste that is embedded on the floor of the Arctic Ocean, and perhaps, in the words of many, contaminating our waters around the world. Collectively, we have paid little attention, only lip service, to this problem. I believe Canada, if it wishes to be consistent with this new treaty, must again raise these issues, as we did in the early 1990s.

To Canada's credit, Canada's ambassador for disarmament has called on his counterparts in the United States, the United Kingdom and France to end their seemingly implacable opposition to Canada's modest proposal for substantive discussions - not negotiations, just discussions - on nuclear disarmament to begin at the Geneva conference on disarmament. Such blunt speaking out is a good start, and must be built upon. Canada must summon the courage to challenge the United Kingdom and France, two of our closest friends and allies, to go beyond the tentative first steps they have taken in reducing unilaterally their respective nuclear arsenals and to negotiate binding cuts which are deeper and irreversible.

Beyond this, is it too much to dare to ask that these two countries have the wisdom to lead the way into the millennium by decisively severing the unholy connection which currently exists in the Security Council between the powers and privileges of permanent membership and nuclear weapons state status? It is not enough for Canada to confine our high-mindedness to nuclear disarmament. If our leadership is to be credible, the same high standard must apply to all of our nuclear dealings, including Canadian exports for peaceful purposes.

In the wake of the 1974 nuclear explosion test by India, using Canadian technology transferred in good faith solely for peaceful purposes, Canada learned a hard lesson and then went on to become one of the first nuclear exporters to require the International Atomic Energy Agency full-scope safeguards on all exports of nuclear material to non-nuclear weapons states. We also put in place arrangements to ensure that any transfers for peaceful purposes to a nuclear weapons state, mainly the United States, would not be diverted for military purposes. These are longstanding Canadian policies which were ground-breaking in their time.

Regrettably, however, against that backdrop of exceedingly high standards and practices must be set the seemingly casual way Canada went about signing a nuclear cooperation agreement with China, a nuclear weapons state which still does not require full-scope safeguards for its nuclear exports, and whose record of proliferation of significant transfers has been lamentable indeed. Such was the unseeming haste to get in on the presumed economic benefits that no review of the proposed nuclear cooperation was even undertaken at the level of ministers.

Let me be clear: There is no evidence at present that Canadian materials or technologies will be misused or diverted in any way by China. Rather, I am wondering how we can square the ease with which we entered into a nuclear cooperation with a country with less than satisfactory non-proliferation credentials with the very high priority which we purport to give to preventing the spread of nuclear weapons.

If we are to continue to play a leadership role in preventing the spread of nuclear weapons and in promoting their successive reduction, we must surely attend to all aspects of our nuclear policy with equal vigour and credibility. We should not so easily forget the lessons of India in the 1970s, and the questions being raised about our own nuclear installations and uses in Canada. The issue of Chalk River and its replacement is taking place without a true national awareness and debate. This issue, our national nuclear policy, is too important to be left out of a parliamentary debate.

On the international scene, the Standing Committee on Foreign Affairs and International Trade in the other place has just finished a review of Canada's non-proliferation, arms control and disarmament policy. I look forward very much to that report, and trust that it will confront, head-on, the issues I have raised here in this debate. This is what leadership is all about, and Canadians will expect no less.

I also look forward to reviewing this legislation in committee and raising further questions. For example, I would wish to know what consultation took place with the provinces, as they have a stake in our nuclear capacity. I would want to raise the issue that, in the initial act proposed in the House, the national authority did not have a reporting mechanism to Parliament. In relation to the issues of implementation and national reporting, these can now be placed before the House of Commons, by way of amendment. It is disappointing that the House of Commons did not use the word "Parliament" and include the Senate. I also wish to initiate some debate as to whether the national authority should, through the minister, also file its report in this chamber.

There is also the question of a series of explosions which, while they were not nuclear, could be taken to be within the ambit of this act. We need to clarify for the purposes of business and for the purposes of our citizens' assurances and safety what the meaning of "series of explosions" requires. It appears that the time limits are not adequately spelt out.

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In closing, honourable senators, I commend the government once again for bringing this legislation forward and for the role which Canada played in helping negotiate the Comprehensive Nuclear Test-Ban Treaty. I believe strongly that, on issues such as nuclear non-proliferation and disarmament, members from all sides should strive to put aside partisan considerations and speak as constructively as possible on the core issues. It is in this spirit that I have offered my comments here today. I hope that Canada will continue its strong leadership on this issue, as we remind ourselves that this is only the beginning of a long road.

The Hon. the Speaker: Honourable senators, if no other honourable senator wishes to speak, is it your pleasure to adopt the motion?

Motion agreed to and bill read second time.

Referred to Committee

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

On motion of Senator Corbin, bill referred to the Standing Senate Committee on Foreign Affairs.


Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw to your attention the presence in the gallery of some special visitors, a group of trainees from the Nunavut region. They are in Ottawa for some special training in preparation for the new government in that territory.

Hon. Senators: Hear, hear!


[Translation]

Judges Act

Bill to Amend-Consideration of Report of Committee-Point of Order-Speaker's Ruling Reserved

On the Order:

Motion by the Honourable Senator Milne, seconded by the Honourable Senator Butts, for adoption of the fourteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-37, An Act to amend the Judges Act and to make consequential amendments to other Acts, with amendments) presented in the Senate on October 22, 1998.-(Debate on a point of order).

Hon. Gérald-A. Beaudoin: Honourable senators, I believe there is no point of order. The relevancy rule is never easy to define or to apply.

It is true that the passage of a bill at second reading signifies that the principle of the bill has been approved.

However, it is obvious that a bill can later be amended, at committee stage, report stage or third reading stage. There are numerous examples.

Before rejecting an amendment on the grounds that it is irreconcilable with the principle of the bill, its content must be examined and compared with the bill.

It is obvious that an amendment modifies a bill. That is its whole purpose. To date, speakers have interpreted the precedents rather generously. This is a good thing, because the Senate is a legislative chamber and a chamber of sober second thought. It is our role to improve legislation.

If I consider the primary objectives of Bill C-37, which are to increase judges' salaries, create an independent commission, make changes to the annuity scheme, and appoint additional judges, I arrive at the conclusion that the amendments before us are completely consistent with the principle of the bill. Of course, they amend the bill before us, but they do not replace the original principle of the bill with a different one. This, in my opinion, is the crux of the matter. An amendment is out of order only if it is totally inconsistent with the principle of the bill.

I note, in closing, that citations 567 to 572 of Beauchesne's Parliamentary Rules & Forms - cited by the honourable senators opposite - have been respected in the case before us.

I therefore conclude, honourable senators, that there is no point of order.

[English]

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, I wish to make three points.

First, I should like to place on the record my appreciation to the Speaker for giving us this opportunity to go to the literature and see whether, after having read the debate from yesterday, we might be able to proffer some other ideas to help the Speaker in adjudicating on this matter, fully cognizant of the fact that the rules provide that only the Speaker may make such a determination.

Second, I would argue that it is important for the Senate to have a broad, large and liberal interpretation of whether amendments are in order on a bill, rather than a rigid, narrow view. The ultimate safeguard is the majority of the legislators who will express a judgment on whether the proposal is to be adopted. Given that in our chamber, in particular, the decision of the Speaker is always subject to that same judgment of the majority of our house, perhaps the wide and liberal view ought to be the guide in this chamber in assessing whether an amendment is in order.

My third point relates to the interesting question on the Royal Recommendation Senator Cools raised as part of her point of order argument. As Senator Stewart noted yesterday, the concept of the Royal Recommendation is somewhat mysterious, probably because a clear statement of the scope of its application is difficult to find. It is also confusing since Sir Ivor Jennings in his book entitled, Parliament, once remarked that it is a requirement where law, parliamentary privilege and parliamentary practice are almost inextricably intertwined.

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Not having had the advantage of being part of the important study on the matter of Royal Recommendations that Senator Stewart and other honourable senators participated in some years ago, although I did look at it, I simply remind honourable senators that the Constitution of Canada first speaks of this matter of Royal Recommendation in section 53. The Constitution provides:

Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

We all understand that principle.

Section 54 of the Constitution then says:

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

The fact of the matter is that this question is very important. It is part of our Constitution and we must attend to it in a very serious manner.

Rule 81 at page 84 of the Rules of the Senate reads:

The Senate shall not proceed upon a bill appropriating public money that has not within the knowledge of the Senate been recommended by the Queen's representative.

I have built upon the constitutional requirement, and I have quoted our rule, that we will not proceed with a bill if we are not sure, or that is to say, if we do not have the knowledge that it has been recommended by the government.

With that, of course, you then can go to the reference literature. Fortunately, our parliamentary authorities can assist us in trying to decipher the requirements of Royal Recommendations. In Erskine May, twenty-second edition, in particular, and His Honour would be familiar with this, from pages 762 to 768, we have a series of tests that can be applied to decide which matters require the Royal Recommendation. One test which may be relevant to the report of the Standing Senate Committee on Legal and Constitutional Affairs, in particular amendment number 3, can be found on page 767. The paragraph that caught my attention is headed, "Increase of expenditure by extension or purposes, etc." It states:

When a bill contains a provision extending the purposes of expenditure already authorized by statute (for example, by adding to the functions of an existing Government agency or publicly funded body, extending the classes of persons entitled to a statutory grant or allowance, or extending the range of circumstances in which such grants or allowances are payable), that provision will normally require authorization by Money resolution. In determining this question, regard is taken only of the particular provision in the bill. Counter-balancing reductions in expenditure purposes provided for elsewhere in the bill are disregarded, as are statements in the explanatory and financial memorandum accompanying the bill to the effect that costs will be met from within existing financial resources or that no overall increase in the public expenditure is expected to result from the bill.

Honourable senators, the point of order on this particular issue is serious; it is not frivolous. I would urge His Honour to interpret it in a broad way rather than in a narrow way. As to the particular references, if they are helpful to His Honour in determining this matter, then I will be pleased to have made this contribution.

Hon. Lorna Milne: Honourable senators, I will leave the legal arguments to other people in this place and I will restrict my remarks to one important aspect of this matter.

As defined by the Unabridged Oxford Dictionary, "criterion" means:

A test, principle, rule, canon or standard, by which anything is judged or estimated.

Moreover, in the Unabridged Webster's Dictionary, "criterion" is explained as:

A standard of judging; a rule or test, by which facts, principles, opinions and conduct are tried in forming a correct judgment respecting them.

The idea of criteria as limitation becomes even more obvious when a statement contained in the majority decision in the P.E.I. Reference, from which Bill C-37 was created, is examined. It states:

...the objectivity of the commission (should) be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission's deliberations. These factors need not be exhaustive. A list of relevant factors might include, for example, increases in cost of living, the need to ensure that judges' salaries remain adequate, as well as the need to attract excellent candidates to the judiciary.

Objectivity is to be ensured through the use of relevant factors or criteria. I wish to assure honourable senators that the factors recommended by the P.E.I. Reference are contained in the proposed newly established criteria for the Judicial Compensation and Benefits Commission.

Furthermore, in his testimony before the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-37, Mr. David Scott, chair of the 1995 Commission on Judges' Salaries and Benefits, declared that there were certain "obvious criteria" which previous commissions studied without being told. He went on to say:

These previous triennial commissions...followed the same process, namely, analysing what salaries were in the private sector, what they were in the practising bar, and what they were in the government. They were then compared, as was the cost of living increases. That is the relevant criteria.

Considering the definitions of "criteria," the P.E.I. Reference majority decision statement about these "relevant factors," the evidence presented by witnesses before the Standing Senate Committee on Legal and Constitutional Affairs, and the deliberations of the said committee, it becomes quite clear that criteria are parameters that form, confine and define our area of concern rather than causing it to expand.

For example, if the commission determined that Canadian judges deserved a raise simply because their American counterparts received one, and did not in any way consider the state of the Canadian economy, the cost of living in Canada, et cetera, then the commission's decision could be disregarded because it did not follow established criteria. Therefore, I contend that the Legal and Constitutional Affairs Committee's unanimous amendment to clause 6 of Bill C-37, which offers guidelines for the judicial compensation and benefits commission to follow in its work, henceforth narrowing the scope of the commission, is entirely in order.

(1500)

Hon. Anne C. Cools: Honourable senators, I shall add just one or two other references for His Honour's consideration. It is not my intention to repeat my remarks of yesterday.

The first is from Beauchesne's Parliamentary Rules & Forms, 6th edition, citations 595 and 596, which are found in Chapter 15. Citation 595 is entitled "Financial Relations Between the Crown and Parliament," and citation 596 is entitled "The Royal Recommendation."

Citation 596 reads:

The guiding principle in determining the effect of an amendment upon the financial initiative of the Crown is that the communication, to which the Royal Recommendation is attached, must be treated as laying down once and for all (unless withdrawn and replaced) not only the amount of the charge but also its objects, purposes, conditions and qualifications. In relation to the standard thereby fixed, an amendment infringes the financial initiative of the Crown not only if it increases the amount but also if it extends the objects and purposes, or relaxes the conditions and qualifications expressed in the communication by which the Crown has demanded or recommended a charge. This standard is binding not only on private Members but also on Ministers whose only advantage is that, as advisors of the Crown, they can present new or supplementary estimates or secure the Royal Recommendation to new or supplementary resolutions.

I ask His Honour to consider that. I should also like to ask His Honour to bear in mind an article written by one of our own staff here, Gary W. O'Brien, entitled, "The Requirements of the Royal Recommendation." We should be proud of Mr. O'Brien in many different respects. This article was printed in the spring of 1993 in the Canadian Parliamentary Review. I hope that Mr. O'Brien will use this when he advises His Honour.

I sincerely believe that this has been a fine Canadian tradition. One of the great masterpieces of Canadian parliamentary procedure was written by a former Clerk of the Senate named Fennings Taylor. We are also proud of the work of Dr. Alpheus Todd, former Librarian of Parliament of the Dominion of Canada.

Senator Stewart referred yesterday to a report of the National Finance Committee. That committee looked quite closely at what I would describe as the administration of Royal Recommendation. I served on that committee, so I have studied the subject-matter quite extensively. That report is dated March 21, 1990. I am looking at pages 20-7 and 20-8 and read therefrom as follows:

The bill had to conform to the resolution in every appropriating clause, and no member of the House could move to amend any such clause so as to increase the amount or change the purpose. If the government wished to change any part of a bill based on a resolution - that is, any appropriating clause - it had to obtain a new recommendation embodying the change. Any part of a bill not based directly on the resolution could be amended by the House in the ordinary way on the motion of a minister or a private member.

I wish to make it crystal clear that this amendment is with regard to the issue of clause 6, not with regard to spousal issues clauses 1, 9, 10, 11 in the report. I sincerely believe that if attempts at moving such motions for amendment were to succeed, a new legal order would have been developed in this country. The fact that such a new order is being developed is a political development, not a legal one. I shall speak more extensively on that as we consider this bill.

Honourable senators, I should like to make one final point and put two more quotations on the record from the Standing Senate Committee on Legal and Constitutional Affairs, of which, as we know, I am not a member. At the committee meeting of October 21, 1998, the following statement was made by the chairman of the committee. She said, in response to a question from me:

Senator Joyal is not committing the government. These are not government amendments.

If they are not government amendments, I am interested to know whose amendments they are, since they do speak to the issues of what I consider to be the royal prerogative of the financial initiatives of the Crown.

As I am not a member of that committee, I do not have the ability to move motions in that committee. At the meeting of the same committee, on the morning of Thursday, October 22, 1998, I said:

I was asking Senator Joyal, prior to proposing his amendment, to just exercise a day or two of delay so that this matter could be properly canvassed by the Liberal Senate caucus. That is what I was asking. I do not believe that I asked anything that was out of order. It is a very curious situation where the gentlemen across here are raising this potentially as a point of order. I think I understand why, and that is quite acceptable, because life unfolds as it does. I was making an appeal to Senator Joyal, since it is Senator Joyal's amendment. It is not the government senators' amendment, as I can see it, because it has not been placed before us by the government sponsor of the bill. Thus I have to conclude that it is a personal amendment being brought forward by Senator Joyal. There is a big difference. Our government sponsors usually do certain things. If Senator Joyal wishes to comply with my request, I would submit, Senator Beaudoin, that that was no business of yours. I was putting it to Senator Joyal.

Some Hon. Senators: Shame!

Senator Cools: I wished to put on the record those two quotations from the record of the proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

Finally, I sincerely believe that proceeding in the way in which this committee did sets a very new and unusual precedent. I made my point yesterday when I said that these amendments were irregular because they introduce a new branch of law into the Judges Act, which was not intended by the Judges Act nor by Bill C-37.

It seems to me, honourable senators, that the point is clearly made by virtue of the fact that if an amendment were being introduced that spoke to the matter of the royal prerogatives in respect to the financial initiatives of the Crown, that matter would have been put before the House of Commons and before this chamber by the responsible minister, who would have been the Minister of Finance.

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I have made the point. I would ask His Honour in his deliberations to exercise the most judicious, practised and studied eye. In addition, I ask him to uphold the rights, privileges and powers of the Senate in these respects.

I do not think I mentioned it yesterday, but I would ask that we also put into the debate the very famous 1949 Senate report known as the Ross report. It was formally known as the Rights of the Senate in Matters of Financial Legislation.

I thank honourable senators for their attention. This issue revolves around the question as to what is the proper construction to be given to the word "purpose" in section 54 of the BNA Act, 1867. Clearly, section 54 tells us that the financial initiative of the Crown and the Royal Recommendation is attached to a "purpose" which must be declared when the minister introduces any such proposal, proposition or bill to the chambers.

Hon. Serge Joyal: Honourable senators, first, I would like to commend Senator Cools for the dedication and passion she brings to this issue. She has decided to devote her time, energy and conviction to this subject.

Many points have been raised in relation to the procedural acceptability of one amendment contained in the fourteenth report of the Standing Senate Committee on Legal and Constitutional Affairs. I wish to deal with them fully so as not to leave any charge of procedural impropriety unanswered.

In the course of her remarks on the point of order, Senator Cools singled me out in particular as the mover of the amendments. Indeed, I was the member of the committee who moved the amendments. Let me point out, however, that all of those amendments enjoyed the unanimous support of all members of the committee on both sides.

Today, we are not dealing with the proposal of one individual senator; we are considering the unanimous report of a committee of the Senate. I would certainly like to commend the Chair and the committee members for their dedicated work.

Since I was the mover of the amendments to the bill in committee, I am happy to provide some background that may be helpful to His Honour as he considers the point of order.

I certainly did not draft the amendments in a casual or light way. Indeed, I sought procedural and legal advice. One of the first elements I explored extensively was the issue of whether any amendments I might propose would infringe upon the financial initiative of the Crown. I took great care that the amendments would be procedurally acceptable in that regard.

The amendment in the report of the committee to which Senator Cools objects is Amendment No. 3. The amendment relates to the mandate of the commission and provides that the commission shall consider objective criteria in its inquiry. Some criteria relevant to calculating compensation levels are enumerated, such as the cost of living and the need to attract competent candidates. The amendment allows for the possibility that the commission may also consider "objective criteria other than those enumerated."

The implication is that the amendment removes from the purview of the commission any power to consider non-objective or general criteria. To that extent, the amendments would circumscribe the scope of the mandate of the commission.

Senator Cools alluded yesterday that the third amendment in the report is a breach of the Rules of the Senate or of parliamentary practice on several specific grounds. Her main objections relate to her allegation that the amendment infringes the financial initiative of the Crown, and that the amendment cannot be properly before the Senate unless it has been recommended to the House of Commons by the Governor General.

Second, Senator Cools contends that the amendment constitutes an enlargement of the mandate of the compensation commission and, therefore, expands the purposes of the measures that were introduced under the Royal Recommendation attached to Bill C-37. The relevant test for measuring whether such an amendment would be out of order is clearly spelled out in citation 596 of Beauchesne's Parliamentary Rules & Forms, 6th Edition, at page 183. It states, in part:

...an amendment infringes the financial initiative of the Crown not only if it increases the amount but also if it extends the objects and purposes, or relaxes the conditions and qualifications expressed in the communication by which the Crown has demanded or recommended a charge.

This test is reinforced in the same edition of Beauchesne's at page 207, citation 698(7), which states:

An amendment is out of order if it imposes a charge upon the Public Treasury, if it extends the objects and purposes, or relaxes the conditions and qualifications as expressed in the Royal Recommendation.

Let me begin by examining in detail the question of the Royal Recommendation. Yesterday, Senator Stewart said in the course of the debate:

Some of you are very young.

I can say that although some of us are younger and have served less time in the Senate but more time in the other place, we are nonetheless invited to read and understand, I would even say savour, the history and background relating to parliamentary procedure.

Senator Stewart, of course, is an eminent authority on the Royal Recommendation. He has an intimate knowledge of the radical changes to the financial procedures of the House of Commons dating back to 1968 - some 30 years ago. Indeed, as a friend and advisor of the Government House Leader in the House of Commons at that time, the Honourable Allan J. MacEachen, Senator Stewart would appreciate more fully than most the implication of those changes.

The 1968 changes had an impact on the form of the Royal Recommendation. By 1976, the Royal Recommendation took on a rather standard formulation and makes no specific mention of the amount of appropriation or of any objects or conditions. This new version of the Royal Recommendation would be useful to any government front bench in the House of Commons as it serves to immunize bills from hostile or undesirable amendments. Consequently, rather than dealing with the substance of proposed amendments, the government could now simply object on procedural grounds to a whole new class of amendments that previously would have been on solid procedural ground.

The pretext deployed to fend off amendments was the allegation that amendments would offend the Royal Recommendation, even in many cases where no appropriating clauses were contained in the bill. The Speaker would have considerable difficulty in deciding the matter as the Royal Recommendation would now be devoid of any expression relating to the purpose of the measure or to the amount of appropriation sought.

Senator Stewart referred to the ninth report of the Standing Senate Committee on National Finance which was presented to the Senate on February 13, 1990. The report deals extensively with the Royal Recommendation. Senator Stewart was, indeed, a member of the committee, as was Senator Cools, and participated in the deliberation on that study.

The report states, in part:

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Before the House of Commons changed its Standing Orders on December 20, 1968, the constitutional purpose and effect of royal recommendations were obvious. The old Standing Orders required that before any bill or clause that appropriated money could be introduced, the House had to have carried a financial resolution approving that appropriation...Any part of a bill not based directly on the resolution could be amended by the House in the ordinary way on the motion of a minister or a private member.

It follows then, honourable senators, that any new clause or section inserted in a bill is procedurally acceptable as long as it does not increase the appropriation recommended to the House of Commons. However, things have become a little less straightforward since the House adopted changes to its financial procedures in 1968. The National Finance report of 1990 elaborates on the situation since 1976:

...a general message of the kind now used leaves the members of both Houses, including the Speakers, without a clear statement from the Crown as to what appropriation(s) is (are) being sought by a recommendation.

The committee went even further. In its recommendation to the Senate, the committee called on the Senate to adopt:

...a standing order requiring that, when any bill authorizing expenditure for a novel purpose comes to the Senate...

That is the case in this bill with the establishment of a new commission and the statutory expenditures for future appropriations that such an initiative entails. I continue to quote the recommendation of the same Senate report:

...the bill not go beyond second reading stage without an authoritative statement from the government specifying any and all appropriation(s) - both the purpose and the amount, or the formula for calculating the amount - sought by the bill.

Honourable senators, eight years have passed since that report was made to the Senate. Sadly, nothing has changed. As a result, we are again faced with the situation that the Royal Recommendation is deployed as a device to challenge the procedural acceptability of an amendment. Once again, the Royal Recommendation itself provides no direction. It is silent.

Senator Cools complains that the amendment would expand the objects of the Royal Recommendation. Respectfully, how does she know? Who can definitively say what those objects are?

Let me attempt an analysis that may assist His Honour in determining whether or not the amendments offend the Royal Recommendation. To determine whether the amendment contemplated violates the Royal Recommendation, as Senator Cools alleges, we must first answer the following six questions that we must apply to the tests of those amendments in reference to the Royal Recommendation.

1. What appropriation(s) did the Governor General recommend to the House of Commons in relation to Bill C-37?

2. Does the amendment result

(a) in a new appropriation, or

(b) in any increase of appropriations in Bill C-37 that are already authorized by the Royal Recommendation, or

(c) in any increase of appropriations already authorized by the current Judges Act?

3. What were the objects and purposes of the measure contained in the Royal Recommendation to the House of Commons?

4. Does the amendment extend those objects or purposes?

5. What were the conditions and qualifications of that Royal Recommendation?

6. Does the amendment relax these conditions and qualifications?

I will answer each of those questions in relation to the amendment under debate.

First, in response to questions one and two, the Royal Recommendation attached to Bill C-37 reads as follows:

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled An Act to amend the Judges Act and to make consequential amendments to other Acts.

The Royal Recommendation does not make any specific mention of any specific appropriation. In order to determine what appropriations are being sought, it is necessary to examine the individual clauses of the bill.

Clause 5 of the bill deals with the salary increase; so clearly there is an appropriation contemplated by that clause, although the specific dollar amount is expressed as a mathematical formula.

Other provisions that clearly carry an appropriation or which constitute a "virtual appropriation" - to borrow the expression Senator Stewart used yesterday - are those which provide for the establishment of the commission and, of course, for the remuneration of the commissioners and the staff.

However, the amendment which gave rise to the point of order relates only to clause 6 of the bill. That clause and only that clause deals with the establishment of a Judicial Compensation and Benefits Commission. No other clause in the bill needs to be taken into account for the purposes of this discussion.

What does clause 6 say? After studying that clause in depth, I came to the conclusion that there are 11 elements contained in clause 6. I will not quote all of them. I will quote the first one and the last one to give you an idea. The clause:

Establishes the Judicial Compensation and Benefits Commission to inquire into "the adequacy of salaries and other amounts payable under this Act and into the adequacy of judges' benefits generally."

This is the first element of clause 6. There are 11 of those, the last one provides for remuneration, compensation and personnel of the commission.

Honourable senators, the amendment which led to the point of order arises from the first element only. In other words, the amendment relates only to the mandate or the terms of reference for the commission. The amendment would not cause nor does it contemplate any appropriation of money. Senator Cools herself, in her remarks yesterday, stated:

The issue here is not the quantum or the dollar amount but the purpose.

Clearly, Questions 1 and 2 are thus answered satisfactorily. There is no procedural irregularity resulting from any amendment that would appropriate money or increase any existing appropriation or any appropriation contemplated by the Royal Recommendation.

The third question was regarding the objects and purposes of the measure contained in the Royal Recommendation in the House of Commons. The fourth question was whether the amendment extended those objects or purposes. Honourable senators, how can we determine what the objects and purposes of the Royal Recommendation are?

Let us look again at the Royal Recommendation attached to Bill C-37, which reads as follows:

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled An Act to amend the Judges Act and to make consequential amendments to other acts.

According to the Royal Recommendation as printed, its purposes are to be found in the bill itself. However, when one examines the bill, one finds no clause in the bill which declares its purpose. The summary of the bill printed inside the cover is the only statement contained in the bill which can possibly shed light on the objects or purposes of the Royal Recommendation. With respect to the commission, the summary says the following:

The enactment establishes a Judicial Benefits and Compensation Commission in place of the former commissioners, who were convened every three years.

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Honourable senators, I recognize that the Royal Recommendation does not call for objective criteria to be defined. Neither does the Royal Recommendation rule out objective criteria. It cannot be concluded from the Royal Recommendation that it was His Excellency's clear objective to leave the commission's mandate undefined. If that were an object of the Royal Recommendation, I expect it would have been clearly expressed.

To the extent that the Royal Recommendation and Bill C-37 expresses objects or purposes, the amendment does not extend them. The only expressed object is the establishment of a commission on judicial compensation. The amendment before us does not extend that purpose. They do not create, for instance, more than one commission. They would not allow the commission to inquire into the salaries of persons other than judges, for instance.

If the amendment is adopted, it will serve to define more clearly and to focus the work of the commission by allowing them to consider only a set of objective criteria. In that way, the amendments would restrict the commission from considering criteria that are not objective measures. Without the amendments, the commission mandates would be extremely broad. In fact, it would be almost totally undefined.

To illustrate the point, let us imagine the bill is enacted without this amendment. Remember that the commission is given no terms of reference by the bill. Without the amendments recommended by the Senate committee, the Judicial Compensation Commission would be able to include in its mandate anything at all - that is, objective criteria as well as non-objective, or general criteria, or no criteria at all. In the unamended bill, the mandate of the commission would include any and all of the objective criteria enumerated in the amendment. No expansion of the mandate is contemplated or possible under the terms of the amendment. On the contrary, by recommending that the commission's mandate take into account only those criteria, our committee report clearly recommends a tighter focus for the mandate of the commission.

Indeed, honourable senators, when the Supreme Court rendered its ruling in the P.E.I. Reference case in 1997, a ruling that triggered the present bill, Chief Justice Lamer, in writing for the majority of the court, spoke of the need "to circumscribe the commission mandate."

I listened carefully to Senator Milne make the same comment, but in light of our discussion it might be helpful to repeat it. Mr. Justice Lamer said:

In addition to being independent, the salary commissions must be objective. They must make recommendations on judges' remuneration by reference to objective criteria, not political expediencies... Moreover, I recommend (but do not require) that the objectivity of the commission be ensured by including in the enabling legislation or regulations a list of relevant factors to guide the commission's deliberations. These factors need not be exhaustive. A list of relevant factors might include, for example, increases in the cost of living, the need to ensure that judges' salaries remain adequate, as well as the need to attract excellent candidates to the judiciary.

The Senate committee agreed with the court and decided to exclude from the purview of the commission any mandate to consider general factors or any subjective criteria when conducting its inquiry.

The answer, then, to Questions 3 and 4 are clear: The only discernible object or purpose that can be construed from the Royal Recommendation is the simple object of establishing a commission on judicial compensation. The Royal Recommendation is silent on what criteria the commission ought to consider in formulating its recommendation. Honourable senators, if we establish a list of objective criteria, such a refinement of the mandate of the commission cannot be considered as an extension of the objects of the Royal Recommendation.

The objects and purposes of the Royal Recommendation are very simple: to establish a commission to review judicial compensation. The amendment in no way can be construed as extending those objects and purposes.

I will conclude by answering Questions 5 and 6. Let me remind honourable senators what Questions 5 and 6 are. They state:

5. What were the conditions and qualifications of that Royal Recommendation?

6. Does the amendment relax these conditions and qualifications?

There simply are no conditions or qualifications attached to the Royal Recommendation. Even if we read carefully the text of the bill and we find "between the lines" some hint of subliminally embedded conditions or qualifications on other matters, the entire bill is absolutely silent on the matter of the criteria that the commission is to take into account during its inquiry. No subliminal condition or qualification can be discerned in this connection, not even by the most astute clairvoyant. Try as one may, it is impossible to see what is not there.

There being no conditions or qualifications relevant to the amendment we are discussing, the amendment cannot be said to infringe upon the Royal Recommendation by relaxing the conditions and qualifications attached to it.

His Honour has a difficult task. If he is to treat Senator Cools' point of order properly, how can he determine whether or not the Royal Recommendation has objects or purposes, conditions or qualifications attached to it? He has no reference point. There is no clause in the bill which declares its purpose.

In my view, His Honour must decide in favour of the Senate prerogative to amend bills. To do otherwise - that is, to accept Senator Cools' argument - His Honour would need to be a clairvoyant. He would have to read the mind of the Governor General to determine his purpose in recommending this measure to the House of Commons. His Honour would have to conclude that the recommendations specifically excluded the possibility of objective criteria being set down. I am convinced that His Honour will not be able to detect the slightest hint or insinuation of such a qualification in the Royal Recommendation.

In summary, honourable senators, the amendment does not involve any appropriation. It does not extend the objects or purposes specifically expressed in the Royal Recommendation, nor does it relax any condition or qualification specifically expressed in the Royal Recommendation. Procedurally, the amendment is perfectly sound and totally within the purview of the Royal Recommendation.

Based on those arguments, I would recommend that the amendment be ruled admissible.

Some Hon. Senators: Hear, hear!

Senator Cools: Honourable senators, I thank Senator Joyal for his excellent remarks. I had thought that I would be the last person to speak because I waited to see if any other senator was rising before doing so myself. However, I will make two quick points.

First, Senator Joyal makes the point that I was making very profoundly, namely, that I was not raising the issue of the quantum of the Royal Recommendation but, rather, the issue of the purpose of the objects of the Royal Recommendation. Senator Joyal made that point for me profoundly, but I do not think he feels that he has done so.

I would remind all honourable senators that the purpose of section 54 in the Constitution Act, 1867 was to uphold the sovereignty of Parliament. The reason and the purpose originally for section 54, as it developed and found its way to the Constitution Act, 1867, was to uphold the fact that Parliament is the forum where the sovereignty and independence of a people must be preserved.

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The intention of section 54 was to preserve Parliament's power over the purse and to keep it away from other issues. Senator Joyal quoted Chief Justice Antonio Lamer and pointed out that his own proposed amendment, which I believe is irregular, was intended to be in obedience to achieve Chief Justice Lamer's judgment. I say again, Senator Joyal has made the point for me very clearly, and there is no doubt now. That is why I have said, Senator Joyal, that if your amendments succeed and if your attempt succeeds, certain judges will have engineered a revolution by signaling their allegiance to a new legal order. This is a political development, not a legal development.

I have spoken a few times on this point, and I have raised the issue of judicial independence as a part of our political morality. A political morality reflects what we think and what our communities think should be the body of principles that guide us as politicians. I am speaking about political morality. The issue of political morality is the one upon which I have rested all my arguments. Essentially, the business and the phenomenon of the finances of the nation belong to Parliament with responsible ministers and do not belong within the purview or the review or the consideration of the judges for any reason whatsoever. That has been a basic tenet of representative government, of responsible government. That is the system of political morality that we have inherited in this country and that I think we should uphold. Our system of political morality has developed a system of principles and governance over 700 years, and much struggle and bloodshed has gone on because of it.

Senator Joyal, you have made my point for me.

The Hon. the Speaker: I thank all honourable senators who have voiced their opinions on the point of order. I have allowed a great deal of leeway. I would remind honourable senators that the purpose of hearing honourable senators on points of order is not to engage in a debate; rather, it is to provide advice to the Speaker. I will attempt to make my ruling tomorrow.

Business of the Senate

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, I believe there is agreement on both sides, in that committees are sitting, that all other items would stand in the order in which they presently appear on the Order Paper.

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Senate adjourned until tomorrow at 2:00 p.m.