Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 29
Thursday, February 17, 2000
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore
Table of Contents
Thursday, February 17, 2000
The Senate met at 2:00 p.m., the Speaker pro tempore in the
Hon. Dan Hays (Deputy Leader of the Government)
Honourable senators, with leave of the Senate and
notwithstanding rule 58(1)(h
), I move:
That when the Senate adjourns today, it do
stand adjourned until Tuesday next, February 22, 2000, at
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
Motion agreed to.
Absence of Government Leader
Hon. Dan Hays (Deputy Leader of the Government)
Honourable senators, the Leader of the Government in the Senate
is absent today. However, should honourable senators wish to put
questions, I would be happy to take them as notice.
Hon. Lowell Murray
: Honourable senators, I have a question
that the Deputy Leader of the Government might be able to
answer. In view of the motion we just passed to the effect that the
Senate will meet again on Tuesday at two o'clock, may we
expect as heavy a legislative menu next week as we have had
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I wish to thank the Honourable Senator
Murray for that question. I believe that we will be receiving at
least two bills this week.
Senator Murray: Two? That is amazing.
Senator Hays: We have a heavy committee workload, which
I hope will be made heavier today as a result of our deliberations.
In fact, I fully expect that there will be considerable work done
today, at least if all goes according to plan.
We are anticipating some very important legislation. The short
answer to the question is that we will have plenty of work to do
Royal Assent Bill
Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable
Senator Lynch-Staunton, seconded by the Honourable
Senator Kinsella, for the second reading of Bill S-7,
respecting the declaration of Royal Assent by the Governor
General in the Queen's name to bills passed by the Houses
of Parliament.—(Honourable Senator Corbin).
Hon. Eymard G. Corbin: Honourable senators, earlier, in a
conversation with the Deputy Leader of the Government, I had
indicated that I would not be speaking on Bill S-7. After further
reflection, I changed my mind.
I shall do so more or less off the cuff, because I did not have
the time I would have liked to have had to prepare a text. I have
even felt pressured from certain quarters to hurry up and speak
on this bill. And yet, we are only on the third day.
The bill we have before us is the personal initiative of Senator
Lynch-Staunton. Truth to tell, he is not just a regular senator,
he is the Leader of the Opposition in the Senate.
According to tradition, the government or the executive does
not interfere in the business of backbenchers, whether MPs or
senators; these are things we settle amongst ourselves. It seems
to me that we ought to have all the time required to look at
proposals that are not government bills.
Therefore, honourable senators, I am feeling a bit bothered by
some rather indiscreet pressure, and I have to admit I find it
shocking. I am hardly a newcomer on the Canadian
parliamentary scene, since I am coming up on 32 years of
participation in debates. I had the signal honour of being
selected by my constituents to represent them for 16 years in the
House of Commons, and will soon have served another 16 here
in the Senate.
I also deplore the fact that private bills are used in a match
between the government and the opposition. I find it rather
unhealthy; it does not encourage the goodwill and degree of
cooperation that should characterize our work.
I certainly cannot be accused of deliberately delaying the work
of the Senate. I will be frank with you. I did it once, because
I could not agree to the changes in the Rules of the Senate
proposed by the party on the other side of the house.
I nevertheless played the parliamentary game, and nothing in the
rules prevents a senator from using dilatory tactics to make his
A bill goes through several important stages — first reading,
debate at second reading, consideration in committee, report by
the committee and third reading — and Royal Assent is the last
stage. We must remember particularly that Royal Assent is part
of the process. Without Royal Assent in proper form, we have
before us nothing more than paper fit to be recycled, according to
One of the main duties, if not the main one, of the
representative of Her Majesty in Canada is to give assent to bills.
As far as I am concerned, all the rest is window dressing. It is all
fine to hand out the Order of Canada or decorations for bravery
and to visit our communities to maintain good relations with
Canadians — and I do not want to take away from this aspect of
the Governor General's role. However, the main reason Canada
has a representative of Her Majesty, however symbolic, is first
and foremost to give Royal Assent.
Bills move in Parliament from the first to the final stage
publicly. However, I cannot agree with Royal Assent being given
a bill in some remote backroom in Parliament or in secret or
unknown offices. Royal Assent must be public like the other
stages; it is the crowning point of the process and has
extraordinary symbolism attached to it. It is the moment elected
representatives and the appointees to the Senate receive the
approval of the symbolic representative of Her Majesty. It is also
the moment when a number of laws come into force. They,
therefore, take on at that moment a power that must be
recognized and that cannot be repealed, unless a bill is
introduced to do so and the process begins again.
I was a little saddened to see some of my colleagues propose
that the Royal Assent ceremony be conducted by personalities
other than Her Majesty's representative, including recipients of
the Order of Canada and others.
This is not part of the process. We have a responsibility
regarding this institution, and so does Her Majesty's
representative. The Queen, the Senate and the House of
Commons form our Parliament. I do not accept the fact that we
would delegate the authority of the Governor General to a
citizen, however honourable, because this goes against the very
reason Parliament and our democratic institutions exist.
In 1660 or 1661, Parliament decided that the body of Oliver
Cromwell, that regicide, and those of his associates would be
exhumed, handed over to the executioner and hanged at Tyburn.
That was done. His body and those of his henchmen were
beheaded and buried under the gallows.
Some time later, that same Parliament, the Parliament of the
Restoration, decreed that certain acts passed by Cromwell against
the King, affecting his person, his prerogatives and his rights,
would be burned by the executioner. This is perhaps one way to
restore the primacy of Parliament while also giving a warning to
those who, in the future, might be tempted to follow the
This private bill should have been introduced by the
government. It should have indicated that Her Majesty or the
Governor General approves its content and does not object to it.
Why? Because this is a measure which affects the rights and
prerogatives of the Crown. It is not up to a member of Parliament
or a senator to get involved in this area without having been
authorized to do so by the person concerned, namely, the one
who presides over Royal Assent ceremonies.
I believe the proposal falls down on this point. It should
contain a notice indicating that the Governor General or
Her Majesty do not oppose it. What is the aim of this bill
exactly? It is to push Royal Assent and all the symbolism that
accompanies it into some little office somewhere, far from public
view. Parliamentarians are primarily responsible for the current
situation. They do not take their responsibility or their oath of
When I was a member of the House and we were informed
that the Gentleman Usher of the Black Rod was knocking at the
door calling us to the Senate for Royal Assent — there were 40
or 50 members, fortunately before the advent of television —
everyone hurried to follow the Speaker of the House of
Commons. The Speaker went up to the Senate for Royal Assent.
Jeanne Sauvé never missed one Royal Assent. I know because
I served with her. Lucien Lamoureux never missed a Royal
Assent. He arrived at the time the practice of having the Speaker
of the House attend Royal Assent in the Senate was gradually
dying out. Why? I have no explanation. I am sorry it did. It
occurred as parliamentarians were being dispersed to either side
of Wellington Street, in the Confederation Building, the Victoria
Building, the East Block, and so on.
The parliamentary cohesion that used to exist has disappeared
completely. There is no longer any importance attached to the
Speaker's presence in the House of Commons or the Senate. His
role is not taken seriously. Look at what goes on every day in the
Senate. How many senators are present for Royal Assent? This is
unbelievable; yet this is the culmination of the entire
When the Catholic Church inaugurated its famous reform with
Vatican II, our former colleague Jean Le Moyne, may he rest in
peace, likened it to a Reader's Digest reform. Not many years
later, church attendance fell off. Why? Because the Church's
mystique had been dealt a death blow, because its symbolism had
been eliminated. It is all very fine and well to use everyday
language for the liturgy but symbolism has been eliminated in
Today, we are being asked to do much the same with this bill.
It will eliminate symbolism and give us carte blanche to be more
frequently absent from this place, where we have a duty to
perform. I am opposed to this bill. We do not need a measure to
diminish its importance, but rather an initiative to enhance it.
What would prevent us from inviting recipients of the Order of
Canada, of Decorations for Bravery, to attend the Royal Assent
ceremony and the reception afterwards in order to meet the
Queen's representative? This is the direction in which we should
be moving, and not in the direction of dilution, erosion and
concealment. That is all I will say. I will not be supporting
Hon. Marcel Prud'homme: Honourable senators, I do not
want to kill the debate; I only wish to participate next week.
However, if an honourable senator wishes to participate in the
debate today, that would be fine, following which I shall ask a
colleague to second my motion to adjourn the debate under my
name until next week. I promise to speak to this matter next
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, Senator Cools has a question and I should
like to make an intervention, but I do not wish to interfere with
questions. Perhaps we could then go to Senator Prud'homme for
Hon. Anne C. Cools: Honourable senators, I have a question
that I wish to put to the Honourable Senator Corbin. He
articulated clearly his position, and I think it is widely supported.
The Hon. the Speaker pro tempore: Honourable Senator
Cools, I regret to interrupt you, but the time allotted for Senator
Corbin's intervention has expired.
Senator Corbin, are you asking for leave to continue?
Senator Corbin: Honourable senators, I seek leave to extend
my time in order to answer any questions in regard to
The Hon. the Speaker pro tempore: Honourable senators, is
Hon. Senators: Agreed.
Senator Cools: I am informed that the governors general are
willing and desire to appear at Parliament more often — in the
Senate, as they are not able to appear in the House of
Commons — to provide for Royal Assent themselves. If that is
true, one must wonder why they are being so discouraged.
Senator Corbin obviously has done some research on the
subject matter. What has he heard on this subject?
Senator Corbin: Honourable senators, what Senator Cools
has said is news to me. I am not aware of anything along
On motion of Senator Prud'homme, debate adjourned.
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable
Senator Cools, seconded by the Honourable Senator Milne,
for the second reading of Bill S-9, to amend the Criminal
Code (abuse of process).—(Honourable Senator Cools).
Hon. Anne C. Cools: Honourable senators know that I have
studied a terrible and pernicious heart of darkness that has
developed in our court system, being the use of false accusations
in civil justice. This is the mischief of litigating parties, usually
mothers, suddenly, within the context of divorce and within child
custody proceedings, falsely accusing the other party, usually
fathers, of the sexual abuse of their own children.
These false allegations are often made with the overt or covert
complicity of their lawyers. They are a lethal weapon in the
business of parental alienation. They are a tool for achieving sole
custody of children and creating fatherlessness.
Bill S-9 addresses the serious social and legal problems
surrounding the employment of false accusations by parties and
their counsel as an instrument to defeat adversaries in court
proceedings. It would enact the principle that such willful use of
false accusations in civil justice is an abuse of process. Bill S-9
would amend the Criminal Code, Part IV, entitled "Offences
Against the Administration of Law and Justice," being
sections 118 to 149. Particularly, Bill S-9 will amend that subset
of these sections entitled "Misleading Justice" by adding
two new sections, 135 and 135.1. Bill S-9 will make the willful
use of false accusations in judicial proceedings an offence
against the administration of justice, an offence of misleading
justice, and will augment the other related sections, including
perjury and the obstruction of justice.
Honourable senators, Bill S-9 had been Bill S-4 in 1996 and
then Bill S-12 in 1998. Both bills passed second reading here
unanimously and were referred to Senate committees for study,
where they were when Parliament was dissolved in 1997 and
prorogued in 1999. I spoke to Bill S-4 twice, on March 26 and on
October 28, 1996. I spoke to Bill S-12 on March 26, 1998. In
addition, on July 13, 1995, I also spoke on these false accusations
in my inquiry on the Ontario Civil Justice Review and again on
November 23, 1995, in my inquiry on the Hill v. Church of
Scientology Supreme Court of Canada decision.
In addition, the 1998 Special Joint Committee of the Senate
and the House of Commons on Child Custody and Access heard
of countless cases of false accusations of child sexual abuse
against parents and grandparents in civil justice in divorce and
Honourable senators, on May 20, 1998, a witness,
psychologist Dr. Brian Hindmarch, appeared before the special
joint committee. Speaking of false accusations of child sex abuse
against good fathers, Dr. Hindmarch said at page 26:57 of the
In the majority of the cases where an allegation of sexual
abuse arises in the context of an open custody assessment,
you have a father who has never had any history of sexual
aberration...and has never been in trouble with the law or
anything else. In the context of an acrimonious custody
battle, he is then accused of sometimes the most heinous
and rarest, from a psychopathological perspective, of sexual
In his written submission of March 10, 1998, to the committee,
to which he referred in his May 20 testimony, Dr. Hindmarch
wrote at page 2:
Suffice it to say that while one must err on the side of
caution when assessing such allegations in the context of
custody/access disputes, research has shown that the vast
majority of these allegations prove ultimately to be false.
Parents continue to raise what are often the most
preposterous of sexual abuse allegations against their
ex-spouses, in sworn Affidavits and with the full support of
their solicitors...However, there should be some means by
which more common sense and sensitivity could be injected
into these situations by lawyers.... In order to "win", there is
a propensity to enshrine on paper and for the public record,
issues and allegations which, when read later, no doubt are
psychologically traumatic to the children involved. The
bland acceptance of such inflammatory material by lawyers
is unacceptable. A heightened level of sensitivity...attention
to the principle of the child's best interests...should be
stressed in the legal profession.
In his testimony, Dr. Hindmarch went directly to the important
question of lawyers' involvement in false accusations within
divorce and child custody proceedings. He told the committee at
Lawyers often will allow or encourage sometimes the most
inflammatory of allegations to be included in affidavits.
Honourable senators, Bill S-9 addresses the role of lawyers in
the use and advancement of false allegations in civil justice by
creating three new offences in the Criminal Code. It would make
it an offence for counsel, that is lawyers, in judicial proceedings:
first, to make public statements outside the tribunal that are
known by that counsel to be false or that counsel has failed to
take reasonable measures to ascertain were false; second, to
institute or prosecute proceedings known by that counsel to be
brought primarily for the purpose of intimidating or injuring
another person; or, third, to wilfully deceive or to knowingly
participate in deceiving the tribunal or court or wilfully
presenting or knowingly relying on false, deceptive, exaggerated
or inflammatory documents, whether or not under oath.
Bill S-9 will cover those unsworn court documents that
lawyers call pleadings. Pleadings include statements of claim,
statements of defence, notices of motion, et cetera, and are court
documents which though vital to court proceedings are not, as
are affidavits, sworn under oath and therefore are not subject to
perjury provisions, being section 131 of the Criminal Code and
the related offence against justice. The integrity of such
documents, pleadings, have relied on solicitors' and courts'
privileges and lawyers' honour, and consequently they have not
been buttressed by Criminal Code prohibition. The process has
relied on confidence that lawyers, as officers of the court, have a
duty to truth and integrity and on confidence that lawyers, on
their honour alone, would not use court proceedings for unjust or
dishonourable purpose. Bill S-9 focuses on this and lawyers' role
in developing court documents, court defence and court strategy
in cases of false accusations within judicial proceedings.
Honourable senators, Bill S-9 creates no new standard for
lawyers or imposes no new burdens. It supports the ancient
standard of honour, integrity and ethics in the conduct of court
proceedings by creating a criminal offence. Bill S-9 will defend
the ancient standard of lawyers' honour as described in the
lawyers' "Rules of Professional Conduct." The perjury
provisions of the Criminal Code are insufficient and inadequate
because many of these false allegations are not made under oath
but are made in pleadings which, as civil justice proceedings, are
privileged and are shielded. Given that these false accusations
are mostly made in civil proceedings, such as divorce and child
custody, they are submitted to a lower standard or burden of
proof than if they were made in criminal proceedings.
Interestingly, most, though not all, of these false allegations in
custody cases have diligently, even strategically, avoided
criminal process to avoid the higher standard of proof.
Honourable senators, previously in speeches here I had
discussed the 1995 Civil Justice Review of Ontario, co-chaired
by Justice Blair. The Civil Justice Review's first report had a
chapter entitled "Focus on Family Law," which raised the
question of lawyers. Justice Blair said, at page 272:
Concern and frustration were expressed about the number
of allegations made in affidavits that were not capable of
being substantiated in any way.
Lawyers were criticized for their drafting of lengthy,
damaging, and sometimes unsupportable affidavit material.
Justice Blair's report concluded that the civil justice system in
Ontario "is in a crisis situation."
Honourable senators, I had also described the 1996 Manitoba
Civil Justice Review Task Force, chaired by Manitoba MLA
David Newman. The Civil Justice Review Task Force Report's
Chapter "Court of Queen's Bench Family Division" addressed
also false accusations of child sexual abuse in civil justice. The
report said, at page 20:
The Task Force heard horror stories about the traumatic
impact on the accused person, on the immediate family and
children affected by malicious false allegations designed to
achieve sole custody, prohibit or restrict visiting privileges,
and to punish the other parent.
The report added, at page 20:
When false allegations are discovered, strong and
effective sanctions are necessary to discourage such
conduct....Lawyers, of course, must never assist in
making false allegations and should be on guard against
becoming the tool or dupe of an unscrupulous client.
The role of lawyers is raised yet again. That last statement,
honourable senators, also warns that judges and courts should
also be on guard against becoming the tool or dupe of
Honourable senators, this heart of darkness, this inhuman,
aggressive hurling of false accusations of child abuse, the
"weapon of choice" during child custody proceedings, is
diabolical. It is the Devil's own work. For those, mostly fathers,
broken by false accusations of child sexual abuse of their own
children, it is ungodly. For a parent to be accused falsely of
something so terrible is soul-destroying. Such false accusations
have been used routinely in recent years since about 1987 by one
parent, usually a mother, to injure and damage the other parent,
usually a father, for the purposes of destroying the other parent
and destroying their relationship with the child. They have been
directed to obtaining sole custody of the child by imposing
insuperable and inhuman burdens on the other parent. These
burdens are emotional, legal, and financial. This phenomenon is
the most recently identified form of child abuse and child
maltreatment. It is also a new form of civil molestation and civil
harassment, as the courts and legal process are enlisted as
instruments of injury, malice and deceit during civil litigation.
The enormous financial burden borne by those personally
affected and by the public treasury and taxpayer is
overwhelming. The emotional and psychological consequences
to the affected children is incalculable and unspeakable, and such
child abuse shames us all.
Honourable senators, I have brought many cases of false
allegations of child abuse in divorce and custody to the attention
of the Senate. I have applied the highest test. That highest test for
me is a finding or a confirmation by a judge in a court that the
allegations are false or groundless. I bring to the Senate cases
where findings have been made by judges. There are numerous
cases that have never been adjudicated, but these cases that I
bring today have been. However, I add that all false accusations
in civil justice are pernicious, even if the impugned cannot
financially or emotionally sustain the adjudication, and the issue
is compelling senators' investigation. I have already cited several
of these judgments and quoted the judges in my several speeches
here. I shall enumerate those 10 judgments that I have already
quoted. They are as follows.
From British Columbia, I have quoted three judgments: by
Justice Rowles, 1990, in P.(G.L.) v. P.(J.M.), B.C. Supreme
Court; by Justices McEachern, Legg, Hollinrake, 1992, in Lin v.
Lin, B.C. Court of Appeal; by Justice Preston, 1992, in the case
Metzner v. Metzner, B.C. Supreme Court.
From Manitoba, I have quoted two judgments, being:
by Justice Carr, 1992, in Plesh v. Plesh, Court of Queen's
Bench (Family Division); and by Justice Jewers, 1997,
in Margaret Pott v. Winnipeg Child & Family Services &
James Pott, Court of Queen's Bench.
From Ontario, I have quoted four judgments, they being: by
Judge Dunn, 1987, in Children's Aid Society of Durham Region v.
Dorian Baxter and Sharon Baxter, Provincial Court (Family
Division) of Ontario; by Justice Somers, 1994, in the Dorian
Baxter case, B(D) and B(R) and B(M) v. Children's Aid Society of
Durham Region and Marion Van den Boomen, Ontario Court of
Justice (General Division); by Justice Wallace, 1996, in the
Wayne Allen case, Allen v. Grenier, Ontario Court (General
Division) Family Court; by Judge Dunn, 1998, in the Barbosa
case, L.B. v. R.D., Ontario Court of Justice (Provincial Division).
Finally, from Saskatchewan, I have quoted one judgment, by
Justice Dickson, 1994, in Paterson v. Paterson, Court of Queen's
Bench. This case had included false child sexual abuse
allegations against the father arising from the mother's false
memory. All 10 judgments were adjudicated by judges — some
excellent judges. In all 10 judgments, false accusations were
made by mothers against fathers, eight involving false
accusations of child sexual abuse and two involving false
accusations of child physical abuse. I shall now repeat my
previous quotations from three of these judges, being Justices
Somers, Carr, and Preston.
Honourable senators, first: Ontario's Justice Somers in the
case of Reverend Dorian Baxter, an Anglican minister. His wife
falsely accused him of sexually abusing their two daughters. The
Children's Aid Society believed and supported her. Reverend
Baxter was exonerated and awarded custody of the girls. After
10 years and hundreds of thousands of dollars, he was successful
in his suit against the Children's Aid Society and their worker
Marion Van Den Boomen. In that 1994 judgment in favour of
Reverend Baxter, Justice Somers stated:
...one can certainly understand the frustration the father
must have felt in this case attempting to deal with
allegations against him which were untrue and which he
regarded as utterly repugnant, and with a bureaucracy that
treated him with ill concealed contempt....as I have said I do
believe that much of the damage sustained by the Plaintiff
was as a result of the machinations of his former wife...
About the testimony from an experienced child abuse
professional, Justice Somers said:
Ms. Chisholm indicated that the experience has been for
some time that sexual assault allegations made by a mother
against a father in custody disputes are very prevalent
nowadays and indeed have become what she called "the
weapon of choice".
Honourable senators, my second repeat quotation is from
Manitoba's Justice Carr in Thomas Plesh v. Wendy Ellen Plesh.
Justice Carr stated:
It is patently obvious from the evidence and the manner in
which it was given that the mother...set out to punish the
husband....The only ways she knew of were to deprive him
of property (she took all of the furniture) and their son. Her
motivation was revenge, pure and simple.
Justice Carr continued:
...she cried child abuse and continues to make the allegation
to this date. In so doing she has nearly destroyed her
husband and his relationship with their child. I conclude that
she never believed that their son had been abused, not when
she reported the abuse and not now....and there was not then
and is not now a shred of evidence to suggest it!
Honourable senators, my third repeat quotation is from
B.C.'s Justice Preston's judgment in Martha Metzner v. Dr. Louis
Metzner, a case of false allegations by a mother against a father,
not of child sexual abuse but of child physical abuse. Justice
Mrs. Metzner was interviewed by Sergeant Armstrong of
the West Vancouver Police Department on January 8, 1990.
The officer's notes indicate that she told him that there was
no history of abuse and that Dr. Metzner had never hit her or
the children. His notes also contain the entry "Martha said
lawyer told her that this would be enough to get him out of
the house because he wouldn't leave."
Justice Preston's words raise yet again the role of lawyers in
Honourable senators, I have 39 more judgments in adjudicated
cases of false allegations of child abuse, mostly child sexual
abuse and a few of physical abuse, that I shall place before the
Senate today. I shall list them as before; by province, judge, year,
and by judgment. They are as follows:
From Alberta, one judgment, being by Justice Nash, 1997, in
Spurgeon v. Spurgeon, Court of Queen's Bench.
From British Columbia, 15 judgments: by Justice Finch, 1987,
in Rodgers v. Rodgers, B.C. Supreme Court; by Justices
McEachern, Taylor and Wood, 1990, in Bartesko v. Bartesko,
B.C. Court of Appeal; by Justice van der Hoop, 1991, in Lin v.
Lin, B.C. Supreme Court; by Justice Coultas, 1991, in M.(H.B.) v.
B.(J.E.), B.C. Supreme Court; by Justice Coultas, 1992, in
Kobylanski v. Kobylanski, B.C. Supreme Court; by Justice
Newbury, 1993, 1995, 1996, three judgments in C(G.E.) v.
C(M.B.A.), B.C. Supreme Court; by Justice Edwards, 1995, in
C.(R.M.) v. C.(J.R.), B.C. Supreme Court; by Justice Shabbits,
1995, 1996, two judgments in Dawson v. Stalker, Supreme Court
of B.C.; by Justice Cooper, 1996, in Hillstead v. Hillstead,
Supreme Court; by Master Powers, 1996, in Huyghue
v. Huyghue, B.C. Supreme Court; by Justice Sigurdson, 1996, in
James v. Turner, B.C. Supreme Court; by Justice Melnick, 1996,
in Scheffer v. Scheffer, B.C. Supreme Court.
From Manitoba, three judgments: by Justice Carr, 1998, in
Colquhoun v. Colquhoun, Court of Queen's Bench Family
Division; by Justice Guertin-Riley, 1998, in McKenzie v.
McKenzie, Court of Queen's Bench; by Justice Allen, 1999, in
the Antonovich case, Winnipeg Child & Family Services
v. L.M.T. & A.A.A., Court of Queen's Bench.
From Nova Scotia, one judgment by Judge Legere, 1997, in
W.A.H. v. S.M.L., Nova Scotia Family Court.
From Ontario, 14 judgments: — the hotbeds seem to be
Ontario and British Columbia — by Justice Thompson, 1987, in
Demeester v. Demeester, Supreme Court of Ontario; by Justice
Fitzgerald, 1990 in Scott v. Scott, Ontario Supreme Court; by
Justices Tarnopolsky, Finlayson, Abella, 1992, in M.(B.P.) v.
M.(B.L.D.E.), Ontario Court of Appeal; by Judge Webster, 1993,
in W.(K.M.) v. W.(D.D.), Ontario Court of Justice (Provincial
Division); by Justice Webber, 1994, in R. v. Robert A. Clark,
Ontario Court of Justice (General Division); by Judge Magda,
1995, in A.N. v. A.R., Ontario Court of Justice (Provincial
Division); by Justice Wallace, 1995, in Jenkins v. Farrauto,
Unified Family Court; by Justice Killeen, 1995, in Lindsay v.
Lindsay, Ontario Court of Justice (General Division); by Justices
Austin, Laskin, Moldaver, 1996, in the Baxter case, B(D) and
B(R) and B(M) v. Children's Aid Society of Durham Region and
Marion Van den Boomen, Court of Appeal of Ontario; by Justice
Aston, 1996, in B.(B.J.A.) v. R.(K.J.), Ontario Court of Justice
(General Division) (Family Court); by Justice Wilson, 1996, in
M.K. v. P.M., Ontario Court of Justice (General Division); by
Justice Czurtin, 1997, in the Wayne Allen case, Allen v. Grenier,
Ontario Court (General Division) Family Court; by Justice
Fitzgerald, 1997, in R. v. Viinalass, Ontario Court of Justice;
by Justice Bellamy, 1999, in Jepp v. Brandon, Ontario
From Quebec, two judgments: by Justice Gomery, 1991, in
Stuart-Mill v. Cher, Quebec Superior Court; by Justice Marx,
1996, in M.B. v. Y.M., Quebec Superior Court.
And finally, from Saskatchewan, three judgments: by Justice
Dielschneider, 1991, Philipowich v. Philipowich, Court of
Queen's Bench; by Justices Cameron, Wakeling, Lane, 1992, in
the Philipowich case again, P.(K.L.) v. P.(P.M.), Saskatchewan
Court of Appeal; by Justice Hunter, 1999, in Miket v. Miket,
Court of Queen's Bench Family Law Division.
Honourable senators, that is a mouthful to speak and that is a
large number of cases. Of these 39 judgments, all are in the
context of divorce, separation and custody proceedings; 31 deal
with false child sexual abuse, eight deal with false child physical
abuse and most are by mothers against fathers. Honourable
senators, that may have been a mouthful, but what I have cited
here is nearly 50 cases of judgments where a judge has said these
allegations are false. I think it a shame, a tragedy and a crisis.
Honourable senators, I shall now quote judgments in four of
these last 39 cases just listed. In the Alberta case of Leslie James
Spurgeon v. Barbara Leah Spurgeon, the father was falsely
accused by the mother. This is a classic case of access denial,
parental alienation, and false accusations of child sexual abuse
against the father. About a letter from mother to father, Justice
Nash said, at paragraph 21:
Those paragraphs, in my view, illustrate what is often
referred to as an example of parental alienation. The girls
are 10 and 12 years old. By involving them in the on-going
conflict between their parents, Mrs. Spurgeon is involving
them as her allies in the position that she had taken
Madam Justice Nash continued, at paragraph 22:
Another concern that I have is the apprehension of bias
on the part of the Department who investigated the
allegations of sexual assault. Mr. Spurgeon was cleared by
the polygraph which, I appreciate, is not admissible in a
Court of law. There was no medical evidence supporting
These judgments often mention the role of the child welfare
Honourable Senators, next is Justice Coultas of British
Columbia in George Juris Kobylanski v. Lorrie Kathleen
Kobylanski, a case of a mother falsely accusing a father
repeatedly. The mother abducted the child and fled the province
with the child to a women's shelter in Yellowknife, N.W.T.
Women's shelters are also becoming a recurring theme. Justice
Coultas said at page 4:
Mrs. Kobylanski deposes that she left the Province
because Stephanie had disclosed that her father sexually
abused her. Allegations of the father's sexual abuse are not
new. In my March 4th Reasons I recited the history of these
earlier allegations. They were first made just prior to a
Hearing to enforce an order for overnight access, and, as a
consequence, overnight access was denied Mr. Kobylanski.
Justice Coultas added, at page 5:
Although I did not make a specific finding that the
Petitioner had invented these allegations, I thought it highly
probable that she did so...
Justice Coultas continued, at page 12:
In spite of her deviousness and irresponsibility I continue
to think that it is in the child's best interest to be, for the
moment, with her mother, for the child is bonded primarily
with the mother. I do not believe that Mr. Kobylanski has
ever abused his child sexually. He has fought tenaciously for
access rights because he believes that he can be a good
influence in the child's life.
Honourable senators, next is Justice Newbury in the case of
Gary Christopherson being C.(G.E.) v. C.(M.B.D.) in British
Columbia. This was a case of a mother's false accusations of
child sexual abuse against the father, a custody change from
mother to the father, and then, finally, the mother and new mate
kidnapped the children to Europe. These are three separate
judgments by the same Justice Newbury, being March 19, 1993,
August 15, 1995, and January 4, 1996. On March 19, 1993,
Justice Newbury said, at paragraph 95:
...I find that there is no real risk that Mr. C. has abused or
will abuse E. or K. in the future. The case against him can
only be described as flimsy at best and while it may not be
a deliberate fabrication, it is the product of Ms. D.'s hostility
In the second judgment, two years later, on August 15, 1995,
Justice Newbury said, at paragraph 50:
In my earlier judgment, I concluded that there was
no `real risk' that Mr. C. had abused or would abuse E. or K
in the future. I reach the same conclusion again concerning
the latest allegation, but with even greater confidence.
In the third judgment, a year later, on January 4, 1996, about
the mother's contempt of court, the integrity of the court and the
children's best interests, Justice Newbury said, at paragraph 13:
...the results of those acts of contempt have taken their
course — the custody of the children has been changed.
This is not to imply that the custody of Ellen and Kirsten
was changed in order to punish Ms. Durville's conduct.
From the parties' points of view, however, little would now
be served by exacting a penalty against Ms. Durville for
these acts. Accordingly, although I conclude that
Ms. Durville's conduct does constitute contempt of court,
I decline to impose any penalty on the basis that remedial
action is now unnecessary, and punishment would be
ineffectual at this late date.
As of last fall, Mr. Christopherson did not know the
whereabouts of his children. Even though he has custody, even
though there is a court order against either parent removing the
girls from the province without the other's consent, Ms Durville
kidnapped them to Europe. He has not seen them for two years,
is impoverished emotionally and financially, and can only afford
a bicycle to commute to work.
Honourable senators, next is the 1996 B.C. judgment by
Justice Shabbits in Daniel Alexander Dawson v. Samantha
Stalker, a case of false allegations of child sexual misconduct by
mother against father within a custody and access proceeding.
Justice Shabbits stated, at page 11:
...the very allegation seems improbable in the extreme.
The previous year, in 1995, Justice Shabbits had heard the
same couple in another custody and access proceeding. About
Ms Stalker's mean actions, supported by her belief that the child
was her property, Justice Shabbits said, at page 12:
The evidence satisfies me that Ms. Stalker has regarded
Corey as hers to do with as she wishes. She has adopted a
regular pattern of refusing to abide by court orders in
respect of access.
Justice Shabbits continued in this 1995 judgment, at page 19:
The evidence in front of me is that after November, 1993,
Ms. Stalker has continued to ignore and flout orders of the
court. Judge Collver also said this: `...Samantha Stalker is
the nastiest litigant I have ever encountered'.
About Ms Stalker, in the 1995 judgment, Justice Shabbits
continued, at page 20:
She gave the impression generally, and occasionally said,
that the proceedings were an inconvenience to her, and an
imposition. She ignored a direction of the court that she
answer a specific question, seemingly certain that no
meaningful sanctions would flow from that.
Honourable senators, the Special Joint Committee on Child
Custody and Access heard from many witnesses about false
accusations of child sexual abuse within child custody and access
disputes. Heidi Polowin, Director of Legal Services of the
Children's Aid Society of Ottawa-Carleton, testified before that
committee on May 6, 1998. At page 22:54, she said:
Of every five cases that the CAS investigates, three of those
cases involve custody and access matters, and of those
three, two are found to be unsubstantiated.
I turn now to the question of lawyers' involvement in the
advancement of these false allegations. I have laid before
honourable senators almost 50 judicial findings that the
allegations were false. There is a crisis in civil justice and in the
practice at bar. That these particular false allegations seemingly
arise in the context of separation and divorce and within civil
justice proceedings of child custody points to lawyers. Today in
civil justice, almost all documents, even sworn affidavits, are
written and prepared by lawyers. Lawyers are both practitioners
at the bar and also officers of the court. As officers of the court,
they are entrusted with privileges whose very purpose is the
protection of truth and the securing of justice. These are ancient
and important privileges. Their maintenance, protection and
proper use should be the goal and duty of every lawyer.
The heart of the problem in this civil justice crisis is the
misuse of these privileges that are entrusted to lawyers as officers
of the court. These privileges, both the absolute and the qualified
privileges, shelter lawyers from criminal and civil liability, even
personal responsibility, for unsworn statements made within
court documents and court proceedings which are false. These
privileges originate in Her Majesty's Royal Prerogative as the
dispenser of justice and guardian of subjects and are bestowed
upon solicitor-barristers when they are admitted as Officers of
Her Majesty's Court. Officers of the court hold these privileges
in trust from Her Majesty as the Fount of Justice. Privileges are
conditional grants from the sovereign to protect the
sovereign's interest in justice and her subjects' right to the
These privileges are part of the sovereign's protection for the
processes of discovering truth and securing justice itself. Her
Majesty's privileges cannot be enlisted to defeat truth or justice
or to deceive her courts.
There is an additional question, being the relationship between
officers of the court, use of these privileges and the welfare of
children. In short, what obligation do lawyers, as officers of the
court, owe to the children of the subjects of Her Majesty when
those lawyers encounter those children in court proceedings,
either as children of their clients or as children of their
adversaries in civil or criminal proceedings? It becomes more
complex when asked in concert with obligations imposed by the
provincial child welfare acts on professionals. For example,
Ontario's Child and Family Services Act, section 72, imposes a
duty on professionals to report suspicions of or knowledge of
children suffering abuse. Interestingly, the obligation of lawyers
to report is different from other professionals. Section 72(8),
described as "Exception: solicitor client privilege," states:
Nothing in this section abrogates any privilege that may
exist between a solicitor and his or her client.
Honourable senators, Bill S-9 imposes no new standard on
lawyers. Bill S-9 affirms the standard of the barristers' current
code of ethical conduct. Bill S-9's language borrows from the
language of the Law Society of Upper Canada's Rules of
Professional Conduct. Bill S-9 elevates that same standard, a
largely informal one, to law. Bill S-9 codifies these standards as
statute and gives them the force of law.
Bill S-9 was inspired by the Reverend Baxter case and the
Hill v. Church of Scientology case. The Church of Scientology
case lasted eleven years and cost countless millions of dollars. In
September 1984, the Church of Scientology and its lawyers made
some serious and unfounded allegations against Casey Hill, the
Crown prosecutor associated with investigating the Church of
Scientology. They instituted contempt of court proceedings
seeking to imprison him.
A few months later, Justice Cromarty ruled that the allegations
of the Church of Scientology against Casey Hill were untrue and
unfounded. This well-reported case is known for the
mean-spiritedness of the Church of Scientology and some of its
lawyers and their persistent campaign to defame a lawyer, Crown
prosecutor Casey Hill. Their persistent and unconscionable
repetition of untrue accusations against Casey Hill, despite
Justice Cromarty's judicial determination to the contrary, are
At the Ontario Court of Appeal, Justices Griffiths, Catzman
and Galligan in their 1994 decision found for Casey Hill, saying:
It continued with unfounded contempt proceedings against
Casey Hill when it knew, no later than September 27, 1984,
that its principal allegation was untrue. It hid its knowledge
of the falsity of that allegation from the court...
The 1995 Supreme Court of Canada judgment upheld the
Ontario Court of Appeal's decision in Casey Hill's favour and
awarded him the largest damages ever in Canada. In that
judgment, Justice Cory spoke about one counsel's "precipitous
and very aggressive letter to the Solicitor General of Ontario."
About another letter, to Casey Hill himself, leading to the
accusations against him, Justice Cory said:
It should be noted that at the time this letter was written,
Clayton Ruby was a Bencher of the Law Society and
Vice-Chairman of the Law Society's Discipline Committee.
The letter implied that there could be disciplinary
proceedings brought before the Law Society of Upper
Canada and that a contempt action might be instituted.
Honourable senators, Bill S-9 is a parliamentary response to a
modern pathology. While I strongly believe that lawyers'
privileges must be upheld because they are important to the
administration of justice, it becomes clear that some correction is
needed. Undoubtedly, the majority of lawyers — and I have
many friends who are — are honest and ethical professionals. As
always, it is the small minority, the deviants, who abuse process
and who need sanctions. The Criminal Code is all about the
deviant minority, not about the honest majority. Parliament has a
duty to protect the children who are the subject of these ugly and
inhuman proceedings, and to ensure that sharp practice is
discouraged. Parliament must use the Criminal Code to limit the
misleading of justice by codifying the deceit of the courts by
some of its officers and declare that the deceit of the court can
form no part of any duty by any solicitor to any client.
Parliament must enact that such activity is an offence against the
administration of justice.
Honourable senators, I should like to thank you for your
indulgence. Perhaps there was a fair amount of tedium in my
speech. As the lawyers around here know, it is no simple task to
discover, glean, peruse and review 50 or 60 judgments and then
to crystallize the findings and list them in a particular order.
Nevertheless, honourable senators, I felt that it was important
that these findings form part of the record of this place.
In addition to that, honourable senators, on a personal note,
this subject matter has touched me very deeply. I have talked to
so many of the men and women who have been afflicted by this
subject matter. One woman, Pamela Stuart-Mill, whose case I
mentioned, was the subject of false allegations. She is one of the
women who was accused by the father. It was a nasty case of
parental alienation. That woman has been able to regain access to
two of her four children. Two of them remain quite hostile and
are alienated from her. That woman came before the Special
Joint Committee on Child Custody and Access. She was recently
invited by the Americans to work on a full-time basis for the
Parental Alienation Syndrome Foundation in Washington, D.C.
Honourable senators, Bill S-9 has been before you on several
prior occasions. I know that I have submitted senators to some
rigorous tedium in the recitation of those particular cases.
However, I honestly believe that there is a terrible pathology that
has crept into our system and that we should do all in our power
to attempt to study this matter with an eye to excising it.
I have held consultations on this question. I have met with
hundreds of people on many different occasions and in many
different cities in this land. I urge all honourable senators to give
this matter their just, studied and practised consideration. I
sincerely believe that the children of this country deserve nothing
less. These children are being destroyed, as are their mothers,
fathers, grandparents and the entire extended family.
Hon. Pierre Claude Nolin: Honourable senators, Senator
Cools has raised an interesting subject. As a lawyer, I want my
colleagues to respect our serment d'office. In her speech she
basically focuses on civil cases when the lawyer is falsely
accusing someone of something. All those cases cited focus on
criminal action or a series of acts committed or supposedly
committed by someone who could bring a criminal accusation.
Every day lawyers write all kinds of allegations in their
statements of claim. It is up to the civil judge to decide whether
or not he believes the evidence sustains the allegations.
If the honourable senator wishes to restrict her amendment to
the Criminal Code, to false criminal attitude, I would understand
it. I would respect that and I would probably support that.
However, the way I read her amendment to section 135 of the
Criminal Code, she is including all statements made by a lawyer
in the written procedure in civil court.
Does that specific amendment to the Criminal Code address all
statements made by lawyers, including those made in writing?
Senator Cools: There are a couple of questions that I should
like to answer first.
First, I have not raised the problem as it exists within
Senator Nolin: I know that.
Senator Cools: Honourable senators, my interest has emerged
as a result of my interest in divorce and the devastation that has
been occurring to families. Yes, my bill would have application
to criminal process, but my heart, in terms of my research, has
been centred around civil justice proceedings.
Senator Nolin is a lawyer and knows of the difficulties of
which I speak. He would be well aware that a lower standard of
proof is required in an accusation contained in documents in a
civil proceeding. In these instances, accusations are made within
statements of defence, here, there, and everywhere. They resist
criminal prosecution and being subjected to the criminal justice
system. I will provide an example. I know of a particular instance
where a father was so accused. He would go to the police and
say, "Investigate me." This is what is happening. In that
particular instance, the accusing spouse had a borderline
personality disorder. The woman was not interested in having her
accusations submitted to the higher standard of the criminal
I do not believe that this is a general practice and that every
lawyer behaves in such a fashion. However, this problem seems
to have been mushrooming within civil justice proceedings, not
in the criminal courts, particularly within the context of divorce
Essentially, I am attempting to expose only those individuals.
Not every lawyer has something to fear, because the majority do
not behave in that manner. Perhaps I can be helpful by putting on
the record exactly what the bill would do.
The Hon. the Speaker pro tempore: Honourable Senator
Cools, I regret to inform you that your speaking time has expired.
Are you seeking leave to continue?
Senator Cools: Yes, I am seeking leave to continue.
The Hon. the Speaker pro tempore: Honourable senators, is
Hon. Senators: Agreed.
Senator Cools: I thank honourable senators for their
The provision that I am proposing to place into the
Criminal Code, 135.1(2), would say:
Every person is guilty of an indictable offence and liable
to imprisonment for a term not exceeding two years who, as
counsel in any judicial proceedings,
(a) wilfully deceives or knowingly participates in
deceiving the tribunal or other body legally authorized to
conduct the proceedings, or
(b) wilfully presents or knowingly relies upon a false,
deceptive, exaggerated or inflammatory document,
whether or not under oath.
What we are dealing with here is what may be described as a
I encourage honourable senators to review this legislation very
closely. What I am attempting to impress upon you is that we
simply cannot sit still and leave these matters to a judge. In the
case of, for example, Father Baxter, it took 11 years in the courts.
No citizen in this land has the financial ability to be able to
sustain that kind of ongoing attack.
In the last few years, there has been more awareness as a result
of the debates here in the Senate and as a result of our work on
the joint committee. There is more knowledge and awareness of
this subject, and many more judges are on top of the matter.
However, there is still much to be done.
Parliament must not ignore this terrible travesty. As a lawyer,
the honourable senator is concerned that lawyers may be caught
in the net. I disagree. Bill S-9 is not attempting to alter the
status quo other than by providing a prohibition and a censure in
instances where it can be proven that the individual wilfully and
deliberately acted in the manner described.
I could cite many cases. One particular case involved Satanic
ritual abuse and recovered memory where the accuser literally
shocked the lawyer. Most lawyers who looked at the case said
they would not touch it.
Honourable senators, if that is not the best approach, feel free
to amend the bill to make it better. My intention here is to say
that this Parliament of Canada, this Senate, cannot ignore this
abuse, this heart of darkness, then turn around and say in the next
breath, "We care about children." What I ask of Senator Nolin is
judicious consideration and study. If he can show me a better
way to write this bill, I will be happy to take his advice.
Senator Nolin: My question is about the intent. If my
honourable friend is restricting her amendment to the case of a
lawyer who alleges that Mr. or Mrs. "X" has committed an
infraction, knowing that the accusation is not true, then we
should study that. However, she is proposing now, according to
my reading, something much larger. She is saying that if a lawyer
makes a statement publicly or writes a statement and it becomes
evident that the statement is not true, he can be charged.
Senator Cools: No.
Senator Nolin: That is what the honourable senator's
amendment states. That is why I am trying to understand the
precise intent of her amendment.
Senator Cools: The precise intent of the bill goes to the
question of the wilful and deliberate attempt to deceive the
courts. Many of these cases fall by the wayside because the
individuals who indulge in that sort of thing are perfectly aware
that they will never come to adjudication. If one looks at these
files, one finds that under cross-examination the individuals start
to say, "I am not sure. I really do not remember." They retreat.
Senator Nolin: I agree.
Senator Cools: The problem is pernicious. One has to look at
those hundreds of cases. Many grandparents are in that position.
They simply cannot finance the abiding nature of the litigation.
I understand the Honourable Senator Nolin's concern, and
I think my bill addresses that. I am attempting to address the
mischief, as the old masters used to say. The evil or the mischief
that the bill attempts to correct is the deliberate and wilful
attempt to deceive the courts for the purposes of injuring another
person. Part of Bill S-9, proposed section 135.1, talks about
counsel who institute or prosecute proceedings that they know
are brought primarily for the purpose of intimidating or injuring.
It will be an interesting debate and discussion on how to prove
some of this subject matter, but, believe you me, honourable
senators, when I use the phrase "heart of darkness," it is a heart
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, it is clear that our colleague Senator Cools
has done a great deal of research into this matter and has brought
forward a lot of interesting data. We will want to study today's
Hansard and also to discuss this obviously important proposal to
amend the Criminal Code.
On motion of Senator Kinsella, debate adjourned.
National Archives of Canada
Bill to Amend—Second Reading—Debate Adjourned
Hon. Lorna Milne
moved the second reading of Bill S-15, to
amend the Statistics Act and the National Archives of Canada
Act (census records).
She said: Honourable senators, the purpose of Bill S-15 is to
allow for the public release of post-1901 census records. The bill
is intended to make reasonable and workable amendments to
both the Statistics Act and the National Archives of Canada Act
to allow for the transfer of the census records from Statistics
Canada to the National Archives of Canada where the records
will be released to the public, subject to the Privacy Act.
I believe that Bill S-15 achieves an acceptable compromise of
the concerns and goals expressed to me by the various interest
groups involved — Statistics Canada, the National Archives of
Canada, the Privacy Commissioner of Canada, genealogists,
historians, medical researchers and the Canadian public.
There has been considerable debate surrounding the supposed
promise of confidentiality that the Chief Statistician is presently
honouring, the intentions of the government of the day, and the
legal interpretations taken from all of this.
As the debate is encumbered with several diametric positions,
I have undertaken to propose Bill S-15, which recognizes all the
arguments and offers a solution to the debate, allowing Statistics
Canada to uphold their promise of secrecy while deeming
consent to have been given to the National Archivist to permit
access by the public to utilize these vital research tools.
Honourable senators, I was first made aware of the situation in
the summer of 1998 by a group of genealogists from the Upper
Ottawa Valley. As someone who has used census records
extensively for family research purposes, I can tell you from
firsthand experience the imperative need for the census records
from the 20th century to be released to the Canadian public. I ask
honourable senators to reflect upon Canada during that time.
Think about what the country has experienced since 1901 — the
vast mass immigrations and migrations; the settlement of the
western provinces; the wars; the change from an agricultural
society and a natural-resource-based society to an industrial
society; the altered economic conditions. That is what I thought
about, when my roots from the Upper Ottawa Valley alerted me
to the fact that a piece of Canadiana, the 1906 Western Census
and subsequent census records, would never be seen by
Clause 1 of the bill makes amendments to the Statistics Act by
adding a new section after section 21. Under this new section,
Statistics Canada would conserve the records while they are in
the care of the department.
In addition to ensuring the conservation of these records, the
bill requires the Chief Statistician to obtain the consent of the
National Archivist of Canada before administering the
destruction or disposal of any census records, including
individual census returns, and ensures that this can only be
carried out once all of the information has been transferred onto
another recording medium. This proposed section also details
when the transfer from Statistics Canada to the National
Archives of Canada should occur, first, for population censuses
taken under section 19 and agricultural censuses taken under
section 20, and, second, all the population and agricultural
census data taken prior to 1971.
Bill S-15 recommends 30 calendar years following when the
census was taken but leaves the window open for the transfer to
take place sooner if the two departments are in agreement.
For the pre-1971 records, the transfer is to occur before the
expiration of two years after this section comes into force or at
an earlier time agreed upon by the two departments. This is
consistent with section 6 of the National Archives of Canada Act.
The solution I referenced earlier comes through changes the
bill makes to the National Archives of Canada Act. It reaffirms
that the census records will be transferred to the National
Archives, as was clearly stated in the original bill but has been
treated by Statistics Canada as an optional move.
Once the records are transferred to the care and control of the
National Archivist, the Chief Statistician will no longer be
responsible for the records. The information contained in the
records and the release of the census records would then fall
solely under the responsibility of the National Archives of
Canada and the National Archivist.
Bill S-15 amends section 7 of the National Archives of Canada
Act. Under Bill S-15, proposed section 7.1 would recognize the
permanent historic and archival importance of census records
and thus the necessity to ensure the security of the permanence of
these records through specifically prohibiting the transfer,
destruction or disposal of the records unless all of the
information is saved on an alternative recording medium.
Proposed section 7.2 would recognize the promise of
confidentiality. Once the records are in the control of the
National Archivist, prior to 92 years after the census has been
taken, the archivist could only disclose the information in the
records to the Chief Statistician of Canada and persons
authorized by order of the Chief Statistician under
subsection 17(2) of the Statistics Act or as authorized by this
proposed section. After the 92 calendar years have elapsed since
the census was originally taken, the National Archivist would
provide public access to the records of the census. This does not
touch any provision already providing access to the information
under the Statistics Act prior to 92 years since the taking of the
census. The access provided by the National Archivist after
92 calendar years would be subject to such reasonable terms and
conditions as the archivist may establish that are consistent with
the purposes of the National Archives of Canada Act.
The last addition Bill S-15 makes to the National Archives of
Canada Act would implement an objection process whereby the
National Archivist accepts written objections from individuals
who wish the information they submitted in the course of a
census to remain confidential. The archivist will receive these
written objections in the final year before the information would
otherwise be released. Bill S-15 sets a number of requirements
for those written objections. In addition to when it should be
submitted, the objection must contain sufficient information for
the archivist to locate the information and, in the opinion of the
National Archivist, the disclosure of the personal information
would constitute an unwarranted invasion of the privacy of the
person to whom it relates. Upon satisfying these requirements,
the archivist would not disclose the personal information referred
to in the objection.
When 92 calendar years since the census was taken have
elapsed, the archivist will make public all census records of
individuals recorded in the census who have not made a valid
objection to the archivist, who would, therefore, be deemed to
have given irrevocable consent to public access to this
information in the census.
Honourable senators, I have had numerous consultations, both
verbal and written, on this piece of legislation with the Chief
Statistician, the National Archivist, the Privacy Commissioner
and others to try to arrive at a workable solution that would give
genealogists and other researchers the access they require to
these records, while making some concessions to the officials
whose jobs are to protect the integrity of their departments. The
bill before you has evolved from numerous drafts, countless
discussions and extensive research. There is a considerable voice
from the Canadian public that wants continued public access to
these records, as they have always had. I am trying to represent
that voice while appreciating the concerns of others. I know
some of you here in this chamber share those concerns. It is my
hope that this bill will be recognized as a legitimate and
thoughtful approach to recognizing and protecting the rights of
confidentiality, as promised in the 1906 regulations, while
granting family and academic historians the access to these vital
records that document 20th century Canada as no other source
does. It will extend to all Canadians equally the same right to
explore their personal history, as is presently enjoyed by the
citizens of the province of Newfoundland and Labrador.
Honourable senators, I request leave to table over
500 electronically transmitted letters of support, e-mail, that
cannot be recognized as petitions under our present rules and
regulations. In substance, these e-mails are petitions to
Parliament from residents of Canada, the United States, New
Zealand, Australia, the United Kingdom, Sweden and
Switzerland that I have received over the course of the past
12 months. The non-Canadian electronic petitions in this bundle
of over 500 come from foreigners who are researching their
Canadian family ties.
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
On motion of Senator LeBreton, debate adjourned.
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable
Senator Ghitter, seconded by the Honourable Senator
Cohen, for the second reading of Bill S-8, to amend the
Immigration Act.—(Honourable Senator Grafstein).
Hon. Jerahmiel S. Grafstein: Honourable senators, what is
the heart of this legislation? Turn back the boats. Turn back the
boats. Empower the minister to turn back the boats.
Bill S-8, a private senator's public bill tabled by Senator Ron
Ghitter on November 2, 1999, seeks to re-enact previous
legislation which allowed the Minister of Immigration to direct
that boats carrying illegal immigrants be turned back from
On December 14, Senator St. Germain, in support of this bill,
stated that this was meant to redress what he saw as a serious
Now we are dealing with boatloads of people from China
arriving on our West Coast, brought here by racketeers or
On the surface, this legislation seems to be a non-malevolent,
rather innocuous, almost painless resolution to a difficult
problem which is always a great media favourite and an irritant
to many Canadians. Let me sketch quickly the background. This
issue is not new to the Senate.
Back in August, 1986 and again in July, 1987, two ships
arrived stealthily off the east coast of Canada and then secretly
and covertly disembarked passengers who subsequently made
refugee claims in Canada. There was at that time, senators will
recall, a loud, mostly media-promoted outcry. The Conservative
government of the day introduced emergency legislation in
response to this so-called public outcry. Bill C-84, among other
measures, empowered the Minister of Immigration with the
authority to direct that boats be turned back from Canadian
waters. During the parliamentary debates, senators may recall,
there was fierce opposition to that bill in the Senate led by
Liberal senators. A stand-off developed. This lasted several
months until a compromise was reached. The federal
Conservative government relented and accepted a number of
amendments, including the sunset clause, section 90.1, on the
ministerial power to direct ships to be turned back from entering
Canadian waters. Because of the sunset clause insisted upon by
Liberal senators, section 90.1 was enacted on October 3, 1988,
and ceased to be in force on July 1, 1989. In return, it was agreed
that Bill C-55, a wide package of changes introducing the basic
structure of our current refugee determination process, had to be
assented to during that same session of Parliament. That salutary
compromise was reached in this chamber.
The authority granted under section 90.1 was, in fact, never
used. Its use may have been proven disastrous as the clandestine
shippers, or "human smugglers," as Senator St. Germain calls
them, involved in the covert trafficking of humans notoriously
employ dangerously unsafe, rundown vessels to move their
human cargo to their intended destinations.
From my quick review of Canadian history, similar authority
has been used at least twice in Canadian history.
Earlier in this century, a ship full of Sikhs from India landed in
Vancouver and was refused permission to dock or to off-load any
of its passengers. After a long standoff, the boat was forced to
return to India without disembarking any of its passengers.
In the most notorious case, in 1939, Jewish refugees fleeing
Nazi repression, on the ship the St. Louis, were denied entry to
Canada after the United States and Cuba refused them
permission to enter. That ship and all of its passengers eventually
had to return to Nazi Germany, most to disappear in the
smokestacks of captive Europe.
Honourable senators, when we turn back these boats, how
many persons of remarkable and talented genius do we turn
away? Would any of these be future Canadian Nobel Prize
winners, such as Bellow, Altman, Cech, Friedman, Herschbach,
Herzberg, Hubel, Lee, Marcus, Polanyi, Rotblat, or Taube? What
about the Governor General herself, who advised us when she
came to this chamber that she arrived in Canada as a refugee
Honourable senators, if there is a scintilla of substance to the
arguments that Canada might become an easy mark, a magnet, a
careless safe haven or an unfair entry point, particularly to those
unwilling to queue up and wait their turn to come to Canada, we
must provide a rational response. We must neutralize those
arguments, to convince Canadians why Canada should not turn
back such unsafe boats at sea.
Let us start with the Constitution. The Charter of Rights and
Freedoms requires a due process and a fair hearing to those who
come to us asking for our protection. The Charter applies to
anyone in Canada, all the time, not just to some of the people,
some of the time. Despite what critics say, Canadians
overwhelmingly believe in adherence to the Charter and
Turning back such boats on the high seas would be a serious
breach of Canada's international obligations, which include the
UN Law of the Sea obligation not to endanger lives at sea, and
the UN convention relating to the status of refugees, which
requires that each state offer safe haven to those who
Turning back boats, particularly these rundown, unsafe
vessels, would most certainly endanger lives and betray Canada's
constant battle to project a reputable policy of "human security,"
both in practice and in precedent. Canadians, and all senators,
believe in and have respect for international norms and
international conventions that we have signed and, hence, the
international rule of law.
We must go further. We have an obligation, if we oppose this
bill, to address and ameliorate the sources of the problem. What
can we do? Human trafficking lies at the source. We must enlist
other countries, including China, to combat crimes related to
border controls, criminally organized smugglers and trafficking
in human beings. In this way, we can allay part of the problem.
Canada has assumed a leading role in formulating United
Nations protocols on transnational organized crime and migrant
smuggling. To obtain multilateral adherence is an ongoing
problem. This is a moving target, and more can be done. More
energy can be enlisted on this international front. These efforts
will also reduce part of the problem.
Successfully negotiated and implemented international
protocols will require signatory states to facilitate the return of
nationals and share information about the activities of organized
criminals operating across borders. This, too, can alleviate part of
The Canadian government is strengthening its worldwide
intelligence and tracking systems to see that these traffickers are
intercepted, charged and prosecuted before their victims leave.
This, too, can ameliorate part of the problem.
Recent history shows that by attacking the source of the
problem, the problem becomes substantively less severe. For
example, the Chinese government has reported the recent seizure
of six migrant vessels, including up to four which some thought
might have been destined for Canada.
Over 6,000 people lacking proper documentation were
prevented from getting to Canada last year alone. Canada already
has some of the most severe penalties in the world for smuggling
— up to 10 years' imprisonment and fines up to $500,000. While
more can be done, we always must be careful that stronger
government measures do not override our humanitarian
The most excellent Minister of Citizenship and Immigration,
my friend the Honourable Elinor Caplan, who comes from my
region just outside of Toronto, has suggested in recent statements
that the government is considering movement on a series of
fronts. Let me just recount a few.
First, increasing penalties for human trafficking to be at least
as tough as penalties for trafficking in drugs.
Second, more aggressive action to seize vehicles, vessels and
other property used in the course of such trafficking operations.
Third, the imposition of screening mechanisms for criminality
and security considerations at the first instance of the refugee
determination process, to identify criminals earlier and prevent
them from abusing the system and to protect the true victims.
Fourth, empowering victims of organized crime by providing
witness protection and offering landed immigrant status in
Canada to encourage sworn testimony against those engaged in
the unlawful smuggling and trafficking of human beings.
Fifth, clarifying existing grounds for detention to deal better
with people smuggling and trafficking in Canada. Honourable
senators will recall that the Immigration Act currently permits
three grounds for detention: inability to establish identity,
reasonable concern for public safety, and warranted fear from
Finally, the government is considering consolidating the
refugee determination process to make it faster and fairer.
Thus, honourable senators, not by one act but concerted
actions, by a bundle of palliative actions, the miserable source of
the problem can be ameliorated without egregious breaches of
our Constitution, our international obligations and our
international reputation. Let the Senate reaffirm the idea of
Canada and say no to this legislation. We in the Senate and the
Government of Canada can find other, fairer ways to reduce
human trafficking and still protect the idea of Canada as a haven
for the truly oppressed.
Honourable senators, I have been asked to adjourn the debate
in the name of Senator Wilson. She would like to participate in
this debate and unfortunately is not here.
On motion of Senator Grafstein, for Senator Wilson, debate
The Senate adjourned until Tuesday, February 22, 2000, at 2