Hon. Jack Austin, Chair of the Standing Senate Committee
on Aboriginal Peoples, presented the following report:
Wednesday, March 29, 2000
The Standing Senate Committee on Aboriginal Peoples
has the honour to present its
Your Committee, to which was referred Bill C-9, an Act
to give effect to the Nisga'a Final Agreement, has, in
obedience to the Order of Reference of February 10, 2000,
examined the said Bill and now reports the same without
amendment, but with the observations appended to this
to the Fourth Report of the Standing Senate
Committee on Aboriginal Peoples
During the course of its hearings on Bill C-9, your
Committee heard testimony concerning the potential
impact of the Nisga'a Final Agreement on unresolved
overlapping land claims of the Gitxsan and Gitanyow
Nations in the Nass Valley region of northern British
Columbia. Your Committee recognizes that the parties
have attempted to address this question by including
provisions in the Nisga'a Final Agreement that aim to
preserve and protect the rights of Aboriginal peoples
other than members of the Nisga'a Nation. Your
Committee is nevertheless deeply concerned about the
implications of outstanding overlap issues, not only in
relation to the Nisga'a and neighbouring First Nations,
but also in the broader context of the ongoing British
Columbia treaty process involving over 50 First Nations.
Your Committee therefore strongly urges the federal
government and its negotiating partners to pursue
vigourously all means at their disposal to ensure that
overlap issues are resolved to the satisfaction of
concerned First Nations prior to the conclusion of future
land claim agreements.
The Hon. the Speaker pro tempore: Honourable senators,
when shall this bill be read the third time?
On motion of Senator Austin, bill placed on the Orders of the
Day for third reading at the next sitting of the Senate.
Notice of Motion to Establish Special Senate Committee
Hon. Anne C. Cools: Honourable senators, pursuant to
rules 56(1) and 57(1)(d), I hereby give notice that two days hence
I shall move:
That a Special Committee be appointed to examine the
civil justice system in Canada, including its operations,
costs and availability to litigants, and the role of legal aid in
the context of family law, with special emphasis on the
impact of false allegations of child or spousal abuse within
custody proceedings on both the administration of justice,
and on the litigants and their immediate families;
That the Committee have the power to consult broadly, to
examine relevant research studies, case law and literature;
That the Senate Special Committee on civil justice in
Canada shall be composed of five senators, three of whom
shall constitute a quorum;
That the Committee have the power to report from time to
time, to send for persons, papers and records, and to print
such papers and evidence as may be ordered by the
That the Committee have the power to sit during the
adjournment of the Senate;
That the Committee have the power to retain the services
of professional, technical and clerical staff, including legal
That the Committee have the power to adjourn from place
to place within Canada;
That the Committee have the power to authorize
television and radio broadcasting of any or all of its
That the Committee shall make its final report no later
than one year from the date of its organization meeting.
Rescue Operation at Sea—Condition of Fourth Sea King
Helicopter Assigned to Task Force
Hon. J. Michael Forrestall: Honourable senators, I have a
question for the Leader of the Government in the Senate. It has to
do with the very historic rescue of 12 seamen from a stricken
Panamanian bulk carrier. Two of four Sea King helicopters
available participated in that rescue. Certainly, their crews
performed yeoman service and should be commended from the
highest places for it. Through no fault of its crew, one of the
other two Sea Kings available to the task force was missing its
radar and other equipment necessary for night operations, leaving
one helicopter unaccounted for.
Could the Leader of the Government tell us why the fourth Sea
King in the task force was not launched to take part in the rescue
operation? Was that helicopter elsewhere? Was it inoperable?
Were there not enough air crew members for all four Sea Kings?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I should like to join with the honourable
senator and commend all of those involved in this operation for
their remarkable and dedicated service.
As to whether the fourth Sea King was required to be in
service or whether there were other operational requirements,
obviously I cannot say at the moment. I am certainly prepared to
make inquiries specifically with regard to that question and
return to the chamber with the information for the honourable
senator as quickly as possible.
Senator Forrestall: Honourable senators, does the minister
think it is incumbent upon Canada not to send helicopters to sea
that are not capable of carrying out their missions? Surely he
would at least agree with that.
If the minister makes inquiries, can he find out why the
Sea King was missing its radar and other necessary equipment
for hovering at night? Was this one of the helicopters scavenged
to make it possible for the other three to fly? Considering the low
reliability factor of the Sea Kings, all four may not have been
available that particular night. How would the government
explain to the people of the world that kind of embarrassment?
Senator Boudreau: Honourable senators, as Senator
Forrestall I am sure will agree, I do not wish to speculate on what
the operational requirements were on that particular evening,
indeed, whether there was any normal availability of that fourth
aircraft, and, if not, why that might have been the case. I can
simply say that I have continually sought reassurances that the
equipment and the personnel we send to these often very
dangerous missions do a remarkable job, and demonstrate
competence and dedication to the task at hand. I am further
assured that the equipment they serve on is capable of fulfilling
the mission safely.
Senator Forrestall: Honourable senators, the minister has
missed the point of my question. We had four Sea Kings on that
task force. Was one of them embarked on that task force solely
for the purpose of being scavenged for spare parts for the other
three? Does the minister not believe that when we send vessels to
sea they should be equipped to carry out the missions for which
they are tasked, otherwise we should not send them? Does the
minister not agree with that common-sense approach?
When the Leader of the Government is questioning the
Minister of National Defence, would he put that simple
proposition to the minister? Why in hell would we send four Sea
Kings to sea if they did not work?
Senator Boudreau: Honourable senators, my honourable
friend is questioning which aircraft were deployed and for what
purpose. They are all very important operational questions. I will
convey the honourable senator's inquiry to the Minister of
National Defence. I can only assume at this stage that there were
very clear operational requirements for the equipment as it was
deployed, but I will ask the questions and attempt to bring back a
more specific answer to the honourable senator as soon as
Job Creation Programs—Possible Mismanagement of
Funds—Request for Inquiry
Hon. W. David Angus: Honourable senators, when I rose here
last Thursday, I thought it would be the last time I would be
talking about this HRDC matter and all that arises therefrom. I
thought we could get into a more healthy situation, given my
interest and the government's interest in revitalizing and
restructuring our health care system.
As honourable senators will recall, in my supplementary
question last Thursday, I indicated that news had just come to
hand from the Auditor General, saying that the mismanagement
of grants of public monies has a much more general application
throughout the departments of government. In the ensuing
releases that were available on Friday and over the weekend, it
has become apparent that this is a deep-seated malaise within our
This morning, the front page of the Ottawa Citizen, that
well-known journal, indicated:
The dilution of responsibility in the Human Resources
Development Canada job grants fiasco underscores the need
for a full-scale inquiry into the operations of government,
say experts in public administration.
"It will be a textbook case that touches on the most
important issues of public administration: the role of elected
officials, the role of Parliament and accountability. You
can't get much more basic than that," said Donald Savoie, a
political scientist at the Université de Moncton.
In my questioning of the Honourable Leader of the
Government in the Senate in late February, I did ask on several
occasions — and I think he will recall that I did — whether the
government is prepared to call an inquiry. I ask the minister again
today. Is the government now, in the face of all of this
incontrovertible evidence of a breakdown in the proper and
businesslike management of public funds in this country,
prepared to call a full and complete commission of inquiry into
this unsavoury and troubling situation?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I thank the Honourable Senator Angus for
raising this topic once again. Given his recent comments, I would
have been disappointed if that had not been the case.
I anticipated that the honourable senator might raise this topic
again, in spite of the comments of the last day, and had occasion
to obtain a copy of the testimony of the Auditor General and read
it prior to today's sitting. I did not bring it with me, but I can
recall some of the points that I wish to share with honourable
senators in relation to that testimony.
First, I thought the testimony was reasonably balanced and that
the Auditor General made a number of very important points.
Mr. Desautels gave the audit that was done great credibility. He
said it was a credible and competent audit. I think Senator Angus
was calling for an independent audit because he was concerned
that the internal audit perhaps was not as thorough, as good or as
competent as it should have been. When I read the comments of
the Auditor General, I thought that Senator Angus would now be
satisfied and reassured that the original audit was thoroughly and
Honourable senators, the next thing the Auditor General said
in his testimony was that he had examined the multi-faceted
program put in place by the minister to deal with the issues
raised by the audit. The Auditor General said he was satisfied
with the credible steps taken by the minister. The Auditor
General thought that was a legitimate, competent approach to the
evidence raised in the audit. Therefore, he was pleased with the
The third matter that comes to mind from the testimony of
Mr. Desautels, which may be of interest to honourable senators is
when he was asked if he had any views on why some of these
problems may have arisen.
The Auditor General said, and I am paraphrasing now because
I do not have the material before me, that there may have been an
overemphasis on the customer service aspect of these programs.
In other words, the department was perhaps going too far to
service the clientele who, by the way, are Canadians. That is
something to be concerned about, but if there is a fault that is
forgivable or at least understandable here, it would be that fault.
Of all of the things he might have said when asked the question,
"How do you think some of these deficiencies occurred," that
was the answer that most pleased me.
Senator Angus: Honourable senators, I thank the minister for
that comprehensive answer. I am pleased to note that we are
getting his attention, that he is anticipating that he will have to
deal with this horrendous situation and is doing his research.
What the Auditor General said about the interim audit carried
out in HRDC was that this audit dealt only with record-keeping.
He said he will now conduct an audit into HRDC and the very
effectiveness of the six-point action plan ordered by the HRDC
minister, the Honourable Jane Stewart, to clean up the mess. The
Auditor General described the problem as persistent, serious and
ranking at the very top of his concerns. He said he would look
into the possibility of money being spent in ways that would not
achieve its intended purpose. The Auditor General even said that
this terrible situation was the most disturbing one that he had
encountered in his nine years in that function.
Will the government please call a full inquiry into this matter
so we can clean it up and give Canadians a sense of confidence
in their administration again?
Senator Boudreau: Honourable senators, the Auditor General
referred to two types of audits in his testimony. It is important to
distinguish between them, as the honourable senator did to some
extent. One of them is an accounting audit which checks to
ensure that the money was properly paid out; that payments
conformed with the program; and that when payment was made,
a receipt was issued. Checks were made to ensure that the entire
audit trail was in place and properly carried out. That is the type
of audit that was done internally. We know the results, and we
know that the minister has acted, according to the Auditor
General, in an appropriate way.
Above and beyond the accounting audit is what I used to refer
to as a "value-for-money" audit, which involves an examination
of the programs to see if they are achieving the goals to which
the policy had directed the programs. Auditors general,
historically, have pushed the envelope in this direction to
determine, from a value-for-money approach, whether programs
are doing the types of things they are meant to do. That is an
entirely different type of audit and over the past 20 years,
auditors general in every government in this country have been
pushing harder into that area.
This auditor general is no different. He wants to push harder
into that area, too. There is a line somewhere — and I am not
quite sure where it is drawn — over which an auditor general
moves from accounting policy into public policy. That has been a
moving goalpost for a number of years.
The honourable senator asked if we would support an inquiry.
The Auditor General outlined what he felt was appropriate in his
testimony. He will pursue the matter and, in fact, we will have
more and more of these value-for-money audits.
Senator Angus: Honourable senators, good Nova Scotians
like the minister and me, understand the difference between yes
and no. Do I understand that the leader's answer is no, the
government will not order and conduct a full-blown commission
of inquiry into this situation?
Senator Boudreau: Honourable senators, I have no indication
at this time that the government will do such a thing.
Hon. Leonard J. Gustafson: Honourable senators, my
question to the minister and the government is about the
increased fuel prices that have been of great concern to all
Canadians in every area but more particularly in agriculture.
Everything that is done in agriculture creates an energy cost.
According to the Keystone Agricultural Producers who appeared
before the Senate committee, a 3,000-acre farm in Manitoba that
had fuel costs of approximately $33,750 last year, will have costs
of $47,250 this year.
Even if a farmer receives the whole amount of the recently
announced Canada-Manitoba Adjustment Payment, or CMAP, it
will cover only 80 per cent of that increase in the cost of fuel.
The farmers have no way to pass on this cost or absorb that kind
of expense. Has the government looked at these fuel costs in
regard to farmers?
I can recall Otto Lang making a positive comment about what
he would like to see done for farmers. He said that we need
different fuel rates for agriculture than for the general public.
This is a very serious problem for farmers. Would the minister
look into the matter and carry that message to cabinet?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, of course I will carry such a message to
cabinet. The government has shown a level of concern in this
area, even though regulation of gas prices, as the honourable
senator knows, falls within the jurisdiction of the provincial
The recently announced Conference Board of Canada study
will give us an opportunity to look at the entire picture. In any
kind of action, we want to be sure we understand all the factors
that have an impact on price. Any action that might be taken by
provincial governments or other parties should be the most
I also offer to honourable senators some news of which you
may already be aware. OPEC members have agreed to increase
their daily production by almost 1.5 million barrels. That in itself
is not an answer, but supply is an important factor in pricing. By
increasing the supply, the hope is that the price will be depressed.
Senator Gustafson: Honourable senators, we are all aware
that a barrel of oil has gone from $10 to $32. That is my point,
that oil companies have a way of protecting themselves and
doing it very quickly. The farmers do not have the same ability to
recover their costs. Farmers in the food chain today are getting
such a small amount of the actual food charge that they cannot
bear the cost of these increased fuel costs.
Just to make the point, I take a little can of gas and use it to
take a load of wheat to the Macoun Co-op. That is a cost of just
over $5, which is equivalent to two bushels of wheat. A big
tractor can cost $800 to fill. Some farmers must fill three or four
tractors. The costs are unbelievable. I cannot stress enough the
importance of these fuel costs because they can wipe out
everything the government has done to try to help. As positive as
those efforts were, these increases in fuel costs can wipe out
those efforts. Would the minister please carry the seriousness of
this cost increase in fuel to the cabinet?
Senator Boudreau: Honourable senators, of course, I will
convey, as I have in the past, the honourable senator's concerns
in this area, particularly with respect to the situation of farmers
dealing with increased oil costs. The fluctuations in oil prices
have been quite dramatic over the past 10 years, resulting in
fairly unpredictable cost levels for Canadians in all walks of life.
As the honourable senator points out, this situation has a direct
impact on the farmers of this country. Once we have conducted
an independent and thorough study of this question, I hope that
we will be able to understand more clearly how we might have
an impact on that situation and, perhaps, avoid these wild swings
Senator Gustafson: The minister will know as well that the
government receives a lot of money from taxes that accrue to the
federal and provincial governments. I sat on the Energy
Committee during the Lalonde days, when we were nailed
with $9-billion worth of exchange that went to Eastern Canada. It
was a pretty serious situation. At that time, the percentages were
very high. An awful lot of the cost of a gallon of fuel goes to
both the federal and the provincial governments. Surely, because
of this increased money that comes to the coffers, they could give
some serious consideration to this matter.
Senator Boudreau: Honourable senators, in spite of the
question of jurisdiction that rests with the provinces, the
Government of Canada has and continues to be concerned. It is
attempting to act prudently by commissioning an independent
and thorough study of the situation. We do not want to act
precipitously in one direction only to have price swings wildly in
the other direction and see the action that we took wiped out
I hear the honourable senator's concern, specifically as it
relates to farmers, and I will pass that concern along.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, under Government Business, I should like
to call No. 1 and No. 2, the supply bills, as indicated on the Order
Paper. After we have dealt with those items, I should like to call
Order No. 4, Bill C-20, and then follow the order of business as
set out in the Order Paper.
Hon. Anne C. Cools moved the third reading of Bill C-29, for
granting to Her Majesty certain sums of money for the public
service of Canada for the financial year ending March 31, 2000.
She said: Honourable senators, there is sufficient and clear
consensus on behalf of all of us here that this bill should proceed
to third reading. I also wish to state again, very clearly for the
record, that I took Senator Kinsella's remarks yesterday with
some seriousness, and I am sure the government has also. I wish
to reiterate that I think all honourable senators are well aware
that the defeat of a bill such as this would certainly result in
either a resignation of a government or a defeat of a government.
I wanted to make that point.
With the permission of honourable senators, I should like to
make a correction to Hansard. Yesterday's record of my speech
contains a slight error. On page 853 of my speech at second
reading on Bill C-29, the third paragraph reads, "Later the same
day, the Senate adopted that report." That sentence should read,
"Earlier today, the Senate adopted that report."
Having said that, honourable senators, I think the question
should now be put.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read third time and passed.
Hon. Anne C. Cools moved the third reading of Bill C-30, for
granting to Her Majesty certain sums of money for the public
service of Canada for the financial year ending March 31, 2001.
She said: Honourable senators, once again I shall reiterate that
there is clear and unanimous consensus on both sides of the
chamber to move this bill along and to give it third reading. I
wish to restate, for the sake of the record and for the sake of
clarity, the very important role that the Senate was given in
respect of the finances and expenditures of Her Majesty's
Having said that, honourable senators, I think we can proceed
with some dispatch. I am eager and willing to hear what Senator
Lynch-Staunton has to say on Bill C-20, so I shall delay no more.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read third time and passed.
Bill to Give Effect to the Requirement for
Clarity as Set Out in the Opinion of the
Supreme Court of Canada in the Quebec
Resuming debate on the motion of the Honourable
Senator Boudreau, P.C., seconded by the Honourable
Senator Hays, for the second reading of Bill C-20, to give
effect to the requirement for clarity as set out in the opinion
of the Supreme Court of Canada in the Quebec Secession
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, in my wildest imagination, I never thought
that there would come a day when the Parliament of Canada
would be asked to approve a bill intended to sanction conditions
under which the breakup of this country could ensue. Even less
did I ever see myself as a participant in such a debate. I do so
with great reluctance, as passage of Bill C-20 will confirm
secession as a valid and legal objective. I simply do not accept
that this option should ever be before Parliament, much less
sanctioned by it.
Bill C-20 denies the history of this country — one of
continuous and oftentimes painful negotiation between its
partners. It denies the basic makeup of this country, a voluntary
association able to accommodate all but the most extreme
demands made on it. It abandons the principle of flexibility
which allows any region to advance its individuality without
compromising that of the others.
The background of Bill C-20 is as deplorable as Parliament
having to debate it. In September 1996, the Attorney General of
Canada sought from the Supreme Court the answer to three
questions: Can Quebec legally secede under domestic law? Can
Quebec legally secede under international law? If yes to both,
which predominates? One did not have to be even a first-year
law student to know the answers, but the minister no doubt felt
that by dragging the Supreme Court into the political arena, it
would gladden the hearts of many, particularly those in areas
where Quebec-bashing is a popular sport. Had the court,
however, limited itself strictly to answering the questions,
Parliament would not be put in the awkward position it is in
presently. Instead, for reasons known only to itself, the court
went way beyond the reference and set out in broad and vague
language under what conditions the breakup of the country could
In a most extraordinary trespassing on the jurisdiction of
Parliament and every provincial legislature, the Supreme Court
gave legitimacy to separation, and now the government is using
the Supreme Court as justification to confirm secession as a
It might interest honourable senators to know that in the 1996
study produced for the C.D. Howe Institute, it was found that of
89 constitutions examined, "82 do not permit secession of a part
of a state's territory under any circumstances," and 22 of this
latter group contain explicit prohibitions of secession. In
addition, one has yet to find a single government that would not
reject out of hand the notion that it preside over the breakup of
As well, no less a constitutional authority than Peter Hogg, the
Dean of Osgoode Hall Law School, said in his book entitled
Constitutional Law of Canada that:
The attitude of a federal government — any federal
government — to a secession movement may be confidently
predicted to be more or less hostile. The government may be
expected to take the view that it did not assume office to
preside over the dissolution of the federation.
This government has yet to properly explain why it rejects what
has never been respected by all its predecessors.
This bill, like the Supreme Court opinion it relies on, is
provocative and incomplete. It does not specify a question or
define a majority. Bill C-20, like the court, uses the word "clear",
while staying away from defining it. The House of Commons
alone will decide that, which means the government, which
means the Prime Minister's Office to which for years the House
has casually abandoned much of its authority. This alone makes
the bill reprehensible and not worthy of support. One person
surrounded by an unelected coterie of faithful insiders will
decide upon the propriety of the question and whether the
support it receives can or cannot lead to negotiating the breakup
What obviously matters to this government is not the
long-term damage this legislation will cause but the short-term
political gains it believes it brings. Bill C-20 was condemned by
the Quebec government and its satellite operation in Ottawa,
while being received enthusiastically in many parts of the
country, and revealed open dissension in more than one
opposition party. These initial results have, no doubt, caused
much joy in the Langevin Block.
Honourable senators, we have to admit, if we are to believe the
comments and polls, that, initially, a vast majority of Canadians
welcomed the bill and that the violent reaction of the
Government of Quebec is still not shared across the province.
This is no surprise.
For forty years, few headlines have not referred to Quebec's
grievances, real or imagined, whatever the government in office.
The slogans are similar and lend themselves to
over-interpretation. "Maîtres chez nous", "égalité ou
indépendance" and "souveraineté-association", for example, are
the natural heirs of what was once called "autonomie
The exhaustion and the frustration caused by the uncertainties
generated by such crises are felt in Quebec as well and not just
by its minority language. However, we must not forget that the
history of Quebec, even before 1867, is marked by efforts aimed
at survival and recognition, efforts too often misunderstood and
rejected by an often indifferent, if not hostile, majority.
Far be it for me to attempt even a brief history of Quebec,
from an agricultural society dominated by political and religious
elites to an industrial one free of the discipline and fear these
elites imposed for far too long. No one must forget, however, that
whatever the nature of Quebec society, there is one constant
which changes only in emphasis, not in nature: that of not just
keeping a unique identity in North America, but in resisting all
threats to it, perceived and real.
Nationalism as we know it in Quebec today is not new, only
the way it is being expressed. Most historians trace Quebec's
nationalism origins to 1885, when the French-speaking Catholic
Louis Riel was hanged. Later, Manitoba withdrew its support of
denominational schools and then disallowed the use of French in
the legislature and in the courts.
The establishment of Alberta and Saskatchewan in 1905
included little to guarantee Catholic minority rights. In 1912,
Ontario adopted Regulation 17, severely limiting the instruction
of French; and in 1916, the Privy Council ruled that the French
language was constitutionally protected only in the courts and in
the Canadian and Quebec Parliaments.
The reaction throughout was a belief that the compromises that
led to the approval of the federation and the belief that French
Canadian rights were the same across the country had been
betrayed. Quebec turned onto itself and promoted the idea that
Canada resulted from an agreement between two founding
peoples, not from an agreement between four colonies. Only
Quebec could henceforth protect and further its majority's
culture, as the rest of the country had abandoned its commitment
to it, or so it was widely accepted.
Gone was the spirit that motivated Sir Wilfrid Laurier, who
fought so hard for equality of rights when the western provinces
were being formed. It was replaced by acrimonious debates, such
as those over conscription in 1917, 1942 and 1944, and the
imposition of the 1982 Constitution over the will of all sides in
Quebec's National Assembly.
Examples of forcing the majority's will on the minority
abound and are not limited to Ottawa. The Quebec National
Assembly has passed legislation aimed at promoting majority
values at the expense of minority ones.
Honourable senators, Bill C-20 allows the majority to sit in
judgment of a minority. A country cannot exist in harmony if
minorities are meant to feel vulnerable, if not despised. The
House of Commons always thinks in majorities. The Senate's
equation has traditionally been based on equality, and it is in this
light that Bill C-20 must be studied.
Ironically, this majority-minority approach was given
parliamentary sanction when the Prime Minister himself, one
who cringes at using a vocabulary associated with Quebec
nationalism, moved in the House of Commons less than one
month after the October 1995 referendum that "...the House
recognize that Quebec is a distinct society within Canada." In his
remarks, he said:
Once it is passed, this resolution will have an impact on
how legislation is passed in the House of Commons. I
remind Canadians that the legislative branch will be bound
by this resolution, as will the executive branch.
The Prime Minister ended by saying:
It is easier to attack than to work together. It is easier to
shout than to listen. It is easier to destroy than to build. It is
easier, yes, but it is wrong for ourselves, for our children
and for our country. The shouters, the attackers, the
destroyers have had their say. Now Canadians want to get
on with building Canada.
Honourable senators, is Bill C-20 what the Prime Minister was
thinking of when he spoke about impact, working together,
listening and building Canada? By no stretch of the imagination
can his eloquence of less than five years ago be reconciled with
the blunt instrument he is asking Parliament to place at his
Bill C-20 is, in fact, a rejection of the prime responsibility of
every national government since Confederation — that is,
keeping and enhancing the unity of the country. The federation
has been called a reluctant partnership and, ever since 1867, the
national government has had as its top priority a determination to
solidify the partnership, despite the frustrations, disappointments
and political setbacks that are too often the only reward for these
In his book entitled ABrief History of Canada,
Roger E. Riendeau writes:
Confederation was effectively a marriage of economic
and political convenience between partners who had little
desire to live together but could not afford to live apart. The
reluctance with which the British North American colonies
entered into their national partnership foreshadowed the
persistence of the regional and cultural discontent that
would characterize Canada's development in the last third of
19th century and throughout the 20th century. Despite the
precarious foundation of unity, Canada would manage not
only to survive as an independent nation in the shadow of a
mighty southern neighbour but also to fulfil the
transcontinental ambitions expressed in its motto..."From
Sea to Sea."
With Bill C-20, we are being asked to support the government
in withdrawing from its responsibility of being the main unifying
catalyst and, instead, allow it unilaterally to decide when it is
appropriate to formally discuss secession.
This bill is, in effect, a not-too-subtle sanctioning of the power
of disallowance found in the Constitution, not used since 1943
and rejected by virtually all constitutional scholars and others as
being out of date and no longer worthy of being used.
Not only, however, is Bill C-20 giving the House of Commons
the right to disallow a vote of a provincial legislature, even a
unanimous one, but also it allows a majority popular vote in a
referendum to be nullified. Even the framers of the British North
America Act never dared to go that far.
Let us look for a moment at the power of disallowance
contained in the Constitution Act, 1867. The late chief justice of
the Supreme Court, Bora Laskin, termed the disallowance power
as "dormant, if not entirely dead." In MacGregor Dawson's The
Government of Canada, the usefulness of this power is described
in relation to the Charter of Rights and Freedoms on the basis
that "some of the main reasons that might have been adduced to
activate the disallowance power before 1982 seem to have been
largely dissipated by the Charter."
Again, Dean Hogg, on the power of disallowance, said:
Its use today would provoke intense resentment on the
part of the provinces. If the federal objection to a provincial
statute is that it is ultra vires or inconsistent with a federal
law, the province may fairly insist that a court is the
appropriate forum to determine the issue. If the federal
objection to a provincial statute is that it is unwise, then the
province may fairly reply that its voters should be left to
determine the wisdom of the policies of the government
which they have elected. In my view, the provincial case is
unimpeachable: the modern development of the ideas of
judicial review and democratic responsibility has left no
room for the exercise of the federal power of disallowance.
William Estey, in his submission last week to the Senate
committee studying the Nisga'a treaty, also spoke of what he
called "the power of disallowance which was frequently used in
the early years of Canada to prevent injustice". Now it is being
introduced to allow injustice.
If all this does not impress my friends opposite, they should
know that no less a constitutional authority than former prime
minister Pierre Trudeau himself, in his book Federalism and the
French Canadians, says clearly that both the federal powers of
disallowance and reservation of provincial laws are "obsolete".
Whether we believe the federal power of disallowance to be
dead or alive, Bill C-20 certainly resurrects it in another form. It
gives the House of Commons the power to basically set aside or
disallow a referendum question duly enacted by a provincial
legislature and then disallow or ignore a referendum result based
on that or another question.
The issue before us deserves better treatment than that given
by the Leader of the Government in the Senate who found sport
in ridiculing the leader of the Progressive Conservative Party for
using the word "ambiguity", and, in a feeble effort at humour,
saying that "ambiguity is the friend of the Parti Québécois." This
revealed a complete lack of understanding on how Canada works
— better ambiguity, flexibility, openness and patience than
rigidity, inflexibility, imposition and eventual resignation, which
is what Bill C-20 is all about.
Some Hon. Senators: Hear, hear!
Senator Lynch-Staunton: On the other hand, having gone
this far, Bill C-20 would take on more credibility, gain wider
acceptance, and certainly not lack for clarity were the questions
acceptable to Parliament actually specified in it, as well as the
definition of "clear majority." The only objection I can see to this
proposal is based on interference. However, since the bill is one
of interference anyway, to the point of disallowance, why not
come clean and simply say, in words anyone can understand, that
any province that wants to negotiate secession must first ask the
following question and no other, and gain a specified percentage
of favourable votes and nothing less.
Some Hon. Senators: Hear, hear!
Senator Lynch-Staunton: In November 1999, the Prime
Minister quoted from the September 3, 1998 issue of Le Devoir,
in which former Quebec premier Jacques Parizeau suggested that
the question be: "Do you want Quebec to become a country?"
The Prime Minister said, "I have no problem with a clear
question like that." If the arch-federalist and the arch-separatist
have found common ground, I for one lean to amending the bill
to include the question they agree to.
As for a clear majority, I favour a minimum of two thirds of
eligible voters. It is only fair for all parties to know ahead of time
that the rules of a very dangerous game are deliberately made so
strict that few would dare play it.
Those who object to clarifying the referendum question and
establishing a clear majority will say provincial jurisdiction must
be respected. I fully agree, but Bill C-20 ignores this.
Not only does it permit the rejection of a question adopted
unanimously by a provincial legislature, but it permits the
rejection of the results of a democratic vote. If this is not
boldfaced meddling, nothing is.
This is why the Parliament of Canada, which has no interest in
doing the groundwork for secession, would be better advised to
confirm its disdain for such a possibility by formulating the only
valid question and specifying what constitutes a clear majority in
advance. On this basis, few will try their luck, unless it is
obvious to all that reconciliation is out of the question and
rupture inevitable. Then and only then should the question be
The bill also requires the following:
...an amendment to the Constitution of Canada would be
required for any province to secede from Canada which in
turn would require negotiations involving at least the
governments of all of the provinces and the Government of
How naive can one get? Does the government really think that,
having accepted by its own definition a clear answer to a clear
question, the seceding province would wait for the months if not
for the years it would take to complete negotiations before
seeking international acceptance for what has been accepted by
no less an authority than the Government of Canada itself?
Just think of the following: The House of Commons agrees
that the question is clear. The House of Commons agrees, again
to quote from the bill, that "there has been a clear expression of
a will by a clear majority of the population of a province that the
province cease to be part of Canada." Then what? Well, the
province celebrates its independence and finds international
recognition for it, the government starts an endless series of
consultations which, involving so many with conflicting views
and no fixed deadline, could easily take years to complete. Does
the federal government really think that, during all this time, the
province would continue carrying on as if it were a full member
of the federation? Has the government ever thought of the chaos
that would ensue as a result? To ask the question is to answer it.
Anyway, the Supreme Court did answer this question in the
last paragraph of its opinion when it stated:
Although there is no right, under the Constitution or
international law, to unilateral secession, that is secession
without negotiation, this does not rule out the possibility of
an unconstitutional declaration of secession leading to a
de factosecession. The ultimate success of such a secession
would be dependent on recognition by the international
community, which is likely to consider the legality and
legitimacy of secession having regard to, amongst other
facts, the conduct of Quebec and Canada, in determining
whether to grant or withhold recognition.
Thus, de facto secession through a declaration of secession is a
real possibility, especially following a successful victory for the
Yes side in a referendum.
The naiveté of the bill is found throughout. It specifies that, as
there is no right to unilateral secession, an amendment to the
Constitution would be required to make it legal. In its unhelpful
way, the court refused to pronounce itself "on the applicability of
any particular constitutional procedure to effect secession unless
and until sufficiently clear facts exist to squarely raise an issue
for judicial determination." The court invokes what it calls "the
usual rule of prudence in constitutional cases" to explain its
Constitutional experts appear to be divided as to which
procedure is applicable between the 7-50 one and the unanimous
one. What about Bill C-110, respecting constitutional
amendments, which was given Royal Assent at the end of 1995?
The bill was introduced by the Prime Minister as another of his
post-referendum sops. In it, not only is Quebec's traditional veto
restored, but it is extended to Ontario, British Columbia, two or
more of the Atlantic provinces that have at least 50 per cent of
the population of all the Atlantic provinces, and two or more of
the prairie provinces on the same basis, which in effect gives
Alberta a veto also. Here is how the Prime Minister explained the
bill. He said, in 1995, as reported at page 16973 of Hansard,
...requires that the Government of Canada first obtain the
consent of Quebec, Ontario and two provinces from both the
western and Atlantic regions representing 50 per cent of the
population of each of those two regions before proposing a
constitutional amendment to Parliament.
The amending formulae in the Constitution are tailored to
specific cases. As secession is not in the Constitution, the court
has held that "each option" — that is amending option — "would
require us to assume the existence of facts that, at this stage, are
Bill C-110 answers the question if the Prime Minister's
explanation still holds, namely that the consent of at least
six provinces, each with a veto, including Quebec, is required
before any amendment is brought before Parliament, including
that of secession.
Coincidentally, in his submission to the Senate committee
studying Bill C-9, the Nisga'a bill, former justice Willard Estey
pointed out the following:
The Canadian Constitution may be amended by the formula
set forth in Part V of the Constitution Act, 1982. An
amendment may be achieved only with some difficulty and
upon a broad consensus of Canadian opinion. It is so
defined to ensure stability in the most basic of Canadian
institutions. The Nisga'a Constitution may be amended if 70 per cent of those Nisga'a citizens voting in a referendum
approve. This then supplants the amending formula in the
I can only assume then, that the Constitutional Amendment
Act, Bill C-110, also supplants the Constitution.
What is the result? A unilateral imposition of an unenforceable
constitutional amending formula guaranteeing that no major
changes to the Constitution are possible. Quebec, having decided
to secede, never a signatory to the Constitution Act, 1982, will
nonetheless be allowed to sit on both sides of the negotiating
table as its determination to leave the federation is being
discussed, and with a veto at hand at all times.
The long and the short of it is that this bill is just what many
people — especially those whose favourite sport is
Quebec-bashing — want, and just what a growing number, not
the least of them Quebec's federalists, do not want.
When Daniel Johnson resigned as leader of the Liberal Party
of Quebec, thousands of people across Canada urged Jean
Charest to step into the breach in preparation for the November
1998 election. One of the first to encourage him in this direction
was the Prime Minister of Canada himself. The March 12, 1998
issue of Le Devoir quotes the Prime Minister as saying:
Jean Charest believes firmly in Canada and in Quebec.
He is an ally whether he is leading the Progressive
Conservative Party or running for the leadership of the
Liberal Party of Quebec.
One of the first to condemn Bill C-20 was that very ally,
Here is how Mr. Charest reacted to Bill C-20 as quoted in the
November 30, 1999 Globe and Mail:
The polarization between Ottawa and Quebec has placed
the Quebec Liberals in a serious dilemma. While the rest of
the country was dealing with secession, the Quebec Liberals
found it impossible to build a case for changes to the
federation, Mr. Charest argued.
He acknowledged that it was difficult to concentrate on
changing the federation while a separatist government was
in power in Quebec. But he insisted that this is the issue
Ottawa should be focusing on rather than the hard-line
strategy toward Quebec known as Plan B.
But the bigger question for me and the bigger issue is this
one: How do we, as Quebeckers, assume our leadership
within the federation...How do we make the country work
rather than focussing on the break-up scenario, in other
words, Plan A rather than Plan B?
That Mr. Bouchard should vent his spleen on Bill C-20 is to be
expected, but that Mr. Charest, whose commitment to federalism
is unquestioned, be put in such an awkward position that his
chances of winning the next election may be seriously
compromised, reminds one of the saying, "With friends like that,
who needs enemies?"
Bill C-20 is based on the false assumption that Quebecers can
be identified as either separatists or federalists, when in fact the
majority are deeply committed to Quebec without in the least
reducing their attachment to Canada. What they seek is a greater
role and greater control over the handling of their own affairs, a
goal sought by many other provinces over the years, and still
today. Bill C-20 will not draw the moderates closer to federalism
per se, believe me, honourable senators.
The mover of Bill C-20 in this chamber happens to be from
Nova Scotia which, by his own admission, he would prefer
representing in the House of Commons rather than here. As he
told us on Thursday in so many words, this place is in the end but
the handmaiden of the other. His preoccupation with the
possibility of secession is understandable, as Nova Scotia was
never really satisfied when it joined the federation. In fact, the
first attempt at secession was made in Nova Scotia.
The separation movement there came to a head in 1868.
Although there was no referendum, 31,000 of the 48,000 electors
in Nova Scotia signed a petition in favour of separation. As
David Matas points out in an article in the fall 1995 edition of the
McGill Law Journal:
There was no question at the time that the will of the people
was on the point: a referendum against Confederation would
have undoubtedly succeeded.
On top of all this, all but two of the 38 members of the
Legislative Assembly voted in favour of the petition for
separation, and 16 of the province's 19 members in the House of
Commons signed the petition for separation. Was the petition
clear? It certainly was. Honourable senators, allow me to read the
prayer in the petition to show how categorical the feeling of a
huge majority of Nova Scotians was at the time. It states, in part:
That there being no Statute of the Provincial Legislature
confirming or ratifying the British North America Act, and
it never having been consented to nor authorized by the
people, nor the consent of the Province in any other manner
testified, the preamble of the Act, reciting that this Province
has expressed a desire to be Confederated with Canada and
New-Brunswick is untrue, and when Your Majesty was led
to believe that this province had expressed such a desire, a
fraud and imposition was practised on Your Majesty.
Thus, here was a clear question on secession and a clear
majority in favour of the clear question. If Bill C-20 had been in
effect at the time, Canada would have gone down the slippery
slope of negotiating Nova Scotia's breaking away from Canada.
What is more, had Bill C-20 been in effect in 1868, Senator
Boudreau, the sponsor of the bill, would not be here waiting to
run in the next election, waiting to take his place in the next
Liberal cabinet. How dreams of greatness can be dashed by
ill-advised and provocative legislation which is Bill C-20.
I wish now to quote from Donald Creighton's biography of
Sir John A. Macdonald:
Yet, despite his troubles, he had no real doubts about
Nova Scotia. He was conciliatory by instinct and long
practice; but he had not the slightest intention of making
compromises about the newly created Dominion of Canada.
The object of Howe's mission to England was the repeal of
the union so far as Nova Scotia was concerned. Macdonald
refused to discuss such a subject officially. The only
concessions that he ever considered making were small
adjustments, chiefly financial, inside the unaltered frame of
the union. He was willing to bargain about these, but about
nothing more. There were those who argued that the best
plan would be to persuade the Nova Scotians to give the
new system "a fair trial", with the inevitable implication
that if they continued to dislike the union at the end of the
trial, they would be free to withdraw from it. "That, it seems
to me," Macdonald wrote bluntly to Jonathan McCully,
"would be giving up the whole question. The ground upon
which the Unionists must stand is that repeal is not even a
matter of discussion."
Some Hon. Senators: Hear, hear!
Senator Lynch-Staunton: The ability to negotiate, to be
flexible and, yes, to be sometimes ambiguous, has, since 1867,
been the genius of the Canadian federation. This is lost to us with
Parliament's role is at all times to take measures which not
only do not jeopardize the unity of the country but, rather,
enhance it. Bill C-20 opens the door to secession. It uses a
questionable Supreme Court opinion giving respect to secession,
a legality sanctioned by the one body which should not be
entertaining the subject, except to reject it without condition.
Bill C-20 does not do that as presently worded. If for no other
reason, it deserves to be rejected on this basis alone.
However, if what Senator Boudreau tells us is true, that this is
the most important bill for Canada that we will consider in many
years, then perhaps it is up to us in the Senate to ensure we are
not dealing with a possibility of separation with half measures
which I believe this bill, as presently written, represents.
If this government does not have the vision and the necessary
policies to build Canada in the 21st century, then let us at least
ensure that its negative and pessimistic approach to the future of
Canada as represented by this bill is altered enough that no
province will dare advance the issue of separation unless there is
a fundamental breakdown in the functioning of this country.
Let us amend this bill — put clarity into this so-called clarity
bill — so that the bar will be raised to such an extent that this
bill, I hope, will never, ever be used.
I believe that if we must have a Bill C-20 — and I will never
agree with the defeatist attitude of this government and agree that
we need it — then let us insert right in the bill both the "specific
and clear" question and the exact minimum majority support
required before Parliament must deal with the results of the
Our role is to put obstacles in the way of those who want to
break up the federation for reasons arising out of constant
grievances that can easily be worked out rather than the
legitimate ones that are insoluble within the present federal
Bill C-20 opens the possibility of secession at any time. My
proposal would only allow it to be pursued when it is inevitable
anyway. While I have amendments along the lines suggested, I
will hold them back until a full discussion on the merits of these
proposals has taken place.
This bill, this very important bill as the Leader the
Government terms it, will be the legacy left behind by the current
government — an administration that will be known for bringing
in a bill, for the first and only time since 1867, that sets out a
roadmap to secession, for the breaking up of the country.
This is truly a government lacking in vision, lacking in agenda
for the future, especially when the Leader of the Government
here points with pride to this secession bill.
Then, as I have suggested, let us amend it so that secession
will become virtually impossible. If we do not reject it, let us
amend it so that secession becomes virtually impossible. This
government can then forget about fighting past battles and get on
with the job of governing — the job it was given by the
electorate, and a job that it continuously fails to take up.
Some Hon. Senators: Hear, hear!
Hon. Anne C. Cools: Honourable senators, I wish to ask a
Senator Lynch-Staunton has told us that the first obligation of
the national government, as with any government, is to maintain
and uphold the union, the very existence of the political entity
itself. Obviously Senator Lynch-Staunton has done substantial
work on his speech and has put before the Senate a very thorough
range of the history of Canada in respect of this matter.
The honourable senator told us that the Supreme Court of
Canada has said that there is no constitutional authority for
secession, that it is not countenanced by the BNA Act. In his
research, has Senator Lynch-Staunton addressed this particular
question I wish to put to him, a question that has caused me
much disquiet for quite some time: If what we believe, as he
says, is the case, where has the Government of Quebec derived
its lawful constitutional authority, over the last many years, to
promote and to spend the dollars of taxpayers on the issue of
promoting the secession of Quebec and promoting the disunion
I wonder if the senator addressed that particular question in his
research. I understand it is a difficult question, one that makes
giants into dwarfs and one around which there has been a fair
amount of timidity. However, I have wondered for quite some
time now if, as former Mr. Justice Estey told us, sections 91 and
92 form the total — 100 per cent I think his words were —
powers of the government, both of Canada and the various
provinces, where does the power of any provincial government
come from to promote secession?
Senator Lynch-Staunton: Honourable senators, any
government can promote the political option that it was put in
power to promote, such as in the case of the Parti Québécois.
There has been excessive use of tax dollars. There has been
deliberate and open use of the Caisse de dépôt, for instance, to
promote so-called Quebec priorities, which are not necessarily in
the interests of all Canadians. There is a whole series of use of
tax dollars like that.
Where does it get the authority? I suppose that in a democracy
such excesses must be accepted, unless it can be proven that the
use of the money is really aimed at the breakup of a country,
which in this case has yet to be done. I deplore the use of
taxpayers' money for the promotion of secession, but it is legally
acceptable. Permissible, I assume so; whether it should continue,
of course not.
Senator Cools: Honourable senators, I appreciate that answer
from Senator Lynch-Staunton. I also understand the sensitivity
and the delicacy of the matter. We are essentially hearing from
the media, from all of the political persons and most players, that
the Government of Quebec is right because it has done it. It has
the power to do it because it took that power. Therefore, the
Government of Quebec can use taxes to promote secession
because it has been doing it and no one has really directed an
alternative response at them. I know this is a position in which
most people find themselves; I still find it very unsettling and
very much improper
My next question was to be the other half, but the honourable
senator has answered the other half of my question in his
I have a minor question, and not a question of policy. The
senator cited a particular case, I believe he said it was from 1916.
Does the honourable senator have the name of that case?
Senator Lynch-Staunton: If I recall correctly, 1916 was in
reference to Regulation 17 in Ontario.
Senator Cools: The Honourable Senator Lynch-Staunton had
been laying out the historical development in a systematic and
chronological way. I saw that as such an important matter that
perhaps the name of the case should be placed on the record.
Senator Lynch-Staunton: Honourable senators, I do not have
it with me, but it was not Regulation 17. That was in 1912. In
1916, the Privy Council ruled the constitutional rights of French,
and limited it to the courts and to the Quebec and federal
Parliaments. It was a judgment of the judicial committee of the
Senator Cools: It was a decision of the Judicial Committee of
the Privy Council, I see. When this bill gets to committee,
perhaps a useful part of the committee's study would include a
review of the development of the relationship of the powers
between the central government and the provincial governments
as they were substantially altered by the Judicial Committee of
the Privy Council.
I am putting this on the record so that the record can show that
it was the courts that fundamentally altered the Constitution of
this country. The difference between those instances and these
instances is that, at the time that those events were taking place,
I believe Canadian constitutionalists condemned the actions of
the Judicial Committee of the Privy Council in England. Whether
it was the great constitutional giants, whether it was William P.
Kennedy or any of these individuals, to a person, including the
late Frank R. Scott, to a scholar, they all condemned the
involvement of and the exercise of these powers by a court in a
distant place in reducing the powers of the federal government
and reallocating those powers to the provincial government.
If we were to move on in this subject matter, a very important
question that the committee will need to study on this particular
bill — because this issue is causing me enormous distress — is at
what point in the development of the Constitution of Canada did
those newly acquired provincial powers get converted into the
powers to promote and now, by Bill C-20, to negotiate the
disunion of Canada?
Once again, honourable senators, for the record I shall say that
Canada is one and indivisible. Her Majesty's governments are
one and indivisible.
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I have a brief question. I commend the
Leader of the Opposition for a well-researched and ably
delivered speech. The views, for the most part, were clear to me.
I am sure they are honestly held and I respect the Honourable
Leader of the Opposition for that and for the opinions he
expresses. There was only one area where I was a little confused,
and my hope is that he can help me with it.
As Senator Lynch-Staunton began his remarks, I understood
that his very fundamental opposition to this bill would be based
on his firm belief that under no circumstances should the
Government of Canada entertain secession negotiations or
discussions. If 95 per cent of the population of Quebec voted in
favour of secession given a perfectly clear question and with a
perfectly clear response, even under those circumstances, the
honourable leader would believe as a matter of principle that the
Government of Canada should not entertain any negotiations on
Subsequent to that, there was mention of a figure. When the
honourable senator referred to a level, he referred to two-thirds
of eligible voters. Of course, the leader of his party has indicated
a level of 50 per cent plus 1.
I think I know the answer to this, but I wanted to ask the
question: What is the position of those three options I have just
laid out as held by the Honourable Senator Lynch-Staunton and
urged upon us?
Senator Lynch-Staunton: Honourable senators, I would
prefer that we not discuss secession here. I would prefer to see a
constitutional amendment disallowing secession, but that is
impossible in the near future anyway.
If we must have the subject before us, let us make the rules so
strict that we make secession impossible. In effect, we would tell
the provinces that secession will only come about when every
other avenue of negotiation, discussion, compromise and
consensus has been exhausted. If the situation becomes so
untenable and even insoluble that there is no other avenue, then
there is no other alternative.
As for the level of two-thirds, that is a question of opinion. I
throw out two-thirds because I think the bar must be very, very
high. The question must be specific. I can think of no one, other
than Mr. Parizeau and a few people in the péquiste government
now, who would dare ask that question. They will certainly ask a
lot of others, but no one there, realistic as they are, would ask the
direct question. There is the answer. They know the mood of
Quebec, which has not changed very much over the years. It goes
in cycles. Right now, it is very comforting to federalists, but it
should not be taken for granted.
If we are to play this very dangerous game of establishing
rules of secession, which is not our responsibility, let us play
hardball. Let us raise the bar so high that no one can get over it,
unless a referendum becomes useless and a constitutional
amendment meaningless because we have reached the stage
where secession is inevitable anyway. It will take place other
than through a referendum and legalities.
Senator Boudreau: I thank the honourable senator for that
answer. If this situation ever arises — and we all hope and
believe that it never will — there will be differing opinions on
where the bar should be set.
I seemed to hear from the Honourable Leader of the
Opposition that he had a fundamental, principled objection to the
Government of Canada entertaining, under any circumstances,
the notion of negotiating secession. That is quite different from a
position which says that the bar should be very, very high. Does
the honourable senator hold the view that under no circumstances
should the Government of Canada entertain discussions on
secession, regardless of the results?
Senator Lynch-Staunton: In my view, it is not up to the
federal government even to entertain the notion that this country
can be broken up.
Some Hon. Senators: Hear, hear!
Senator Lynch-Staunton: I quoted Sir John A. Macdonald at
length because he set the bar. He said he would talk of many
things but that this union is not dissoluble. That should be the
motto of every government and has been, until this one. This
government leans on the Supreme Court opinion, which is
flawed, incomplete, contradictory and which says that under
certain conditions, which we will leave up to you to decide,
secession can take place. Now we are faced with a bill that is
vague, incomplete and contradictory.
Senator Kinsella: The government should not have brought it
Senator Lynch-Staunton: That is quite right; the government
should not have introduced it. If they want to confirm their
distaste for secession, they should say to those who preach it that
these rules must be obeyed before they will even consider talking
to the secessionists about it.
I would rather the government say, "As long as we are in
power, we are not here to preside," and I am paraphrasing Dean
Peter Hogg, "over the dissolution of the federation." It is a
simple as that.
Honourable senators, this bill makes that option legal. The
Supreme Court legitimized it. Now the government wants
Parliament to make it legal. I think that is a recipe for disaster.
Hon. Fernand Robichaud: Honourable senators, the Leader
of the Opposition tells us that the federal government must take a
hard line and not consider the possibility of secession. It could
therefore say that it would never agree to consider a referendum
on this question in any province. Would you go that far?
Senator Lynch-Staunton: Honourable senators, if the wish is
for Parliament to give an opinion on the secession question, it
should set ground rules that are so stringent that nobody would
be tempted to try their luck. It should spell out the question: If
Quebec wants to be independent, let us insist that two thirds of
eligible voters be in favour before any discussion can be held.
There ought not to be any discussion of secession in
Parliament. We should be finding means to solidify the unity of
this country. The notion of secession ought not to enter the
picture at the federal government level until all other possibilities
of keeping the province within the federation have been tried and
explored without any positive results. Any discussion,
negotiation, compromise or consensus ought not to take place
until there is an awareness of the inevitability of the desire to
separate. If a referendum is held without the conditions being
known from the start, where are we headed? How can anyone
envisage negotiating a constitutional amendment with a province
for years, when it has already decided to separate and when the
federation is very concerned because this may lead to the
breakup of the country? If Quebec decided to declare
independence, what would happen to the Atlantic provinces, or
to the western provinces, which would find themselves
dominated by Ontario? This would inevitably lead to a very
Parliament has a responsibility to speak out categorically
against secession. It should address the issue only when
secession appears inevitable. Today, it should say a categorical
no. By discussing the matter at this time and in the weeks to
come, I imagine, we are going to make the people in Quebec
who want secession very happy. We are going to play along with
them. We are going to discuss conditions, amending formulas,
formulas of what is to be included in the question, what is a
majority. How can the Parliament of Canada spend weeks
discussing such hypothetical questions, as if we had no other
priorities? This is beyond me.
Hon. Marcel Prud'homme: Honourable senators, I hardly
need say that I have listened most carefully to the speech of
Senator Lynch-Staunton. I am always afraid of people who talk
of impossibility, of indissolubility. It is a bit like Galileo, who
knew very well that the earth revolved around the sun. He was
condemned for this, but it was later realized that he was right.
Indissolubility is of great concern to me. Despite what we want
to see in Canada, many countries have become independent since
The Leader of the Opposition said he was considering
proposing an amendment on a clear question. I do not even want
to ask one. This is perhaps the only point on which I might agree
with Senator Cools. I believe Canada is one and indivisible. Still,
we must recognize its specificities, otherwise we will have
problems. We already have problems, but we will have more.
While preserving the country's unity, we must stop boasting all
over the world about Canada if we cannot work to recognize its
The honourable senator said he would like a tough and clear
question such as: "Do you want Quebec to become a country, yes
or no?" I do not like such a question, but at least it is clear. We
can have a relatively short debate, a conclusion and an
agreement. The honourable senator alluded rather quickly to the
notion of "two thirds." This is debatable. Did he mean two thirds
of the voters' list or two thirds of those who actually vote?
Senator Lynch-Staunton: Both.
Senator Prud'homme: Let me give you some statistics on
voters in Montreal ridings. Did you know that 93.34 per cent of
Quebecers voted in the last referendum? This is an exceptionally
high percentage in the Western World. In some parts of certain
ridings, such as D'Arcy-McGee, 99 per cent of voters voted, with
almost 99.3 per cent of them voting no. It is their democratic
right. Is this not enough for you? In the amendment he is
considering, would he go so far as to say that all those who do
not vote will, in any case, be included in the percentage? Is this
what he really said?
Senator Lynch-Staunton: Yes, I did indeed say that a clear
question ought to be included in the bill. Also, the minimum
number of votes ought to be specified before the process goes
any further. I suggest two thirds of those eligible to vote, not of
those who cast their votes. As the honourable senator said, in that
case, there can perhaps be a 100 per cent rate. The minimum
needs to be sufficiently high to ensure that the desire is clear-cut.
In my opinion, 50 per cent or 51 per cent is not enough if what is
at stake is the breakup of a country. Two thirds would be the
allowable minimum. If we get to that stage, I have no doubt that
the participation rate will be far higher, and the results will
Senator Prud'homme: Honourable senators,since the
amendment has not been moved, can the honourable senator help
us in our reflection? I dare not say it is his. After speaking about
a clear question and the requirement of two thirds of the votes, he
says no more. Would he be prepared in his reflection to stop
there, instead of adding one more difficulty that does not exist
anywhere in the world? As for the two thirds figure, 10 per cent
of people on a voters' list are not going to vote.
They count as if they had voted. You are not asking for
66.6 per cent. I know the honourable senator wants to make it
difficult. I will stand still for the moment, but I should like to
know if he is ready to reflect before he puts his amendment on
that last part to Parliament. It does not seem to be tough enough.
I like people to be tough when we are dealing with a country and
when we know the consequences. I ask the honourable senator to
reflect on that point.
Senator Lynch-Staunton: Honourable senators, if I
deliberately did not read the amendments, it is because I am
throwing them out as a topic for discussion only. I hope they will
be discussed at committee stage, as well as the honourable
senator's arguments and those of other senators.
We will decide whether to move amendments after
Senator Cools: Honourable senators, I had deferred to my
leader, Senator Boudreau, but I was not finished.
In my question to Senator Lynch-Staunton, it occurred to me
that, perhaps, I could have made it clearer for those who will
read these debates. I was speaking to the historical developments
of the Constitution Act while in the hands of the Judicial
Committee of the Privy Council in England. On reflection,
perhaps I should have described it as some of the historians have
described it, namely, as the contest between Sir John A.
Macdonald and Lord Watson. Lord Watson was the chairman of
the Judicial Committee, one of singular legal mind to whom was
attributed the business of reconfiguring the Constitution of
My question to Senator Lynch-Staunton concerns precisely
Bill C-20. As I said before, I was a supporter of former prime
minister Trudeau, and I still am. In a 1991 speech about former
chief justice Bora Laskin, Mr. Trudeau vigorously condemned
what the Supreme Court of Canada did with the Patriation
Reference back in 1980. If anyone were to read that speech, one
could hear Mr. Trudeau's vigorous condemnation of what he
described as the Supreme Court of Canada playing politics with
the future of Canada. Mr. Trudeau made the point that, try as he
did, he could not succeed in having a debate on the question of
where the sovereignty of Canada rested.
My concern about Bill C-20 is that it is creating a legal
scheme or legal regime which, essentially, will authorize the
secession of a province through a bilateral negotiation and
agreement between the Government of Canada and the
government of that province. In this instance, as I said earlier, the
opinion of the House of Commons is the opinion of the
Government of Canada. If we are not careful, the entire question
of secession will be reduced to a bilateral agreement and to a
bilateral negotiation between the Government of Canada and the
Government of Quebec, which is most improper.
My question to Senator Lynch-Staunton is the following: In
reading Bill C-20, which I have read dozens of times, I noticed
that it talks about the will of Quebec as expressed in a
referendum of the population of Quebec. However, Bill C-20 is
silent on the will of Canada as expressed, perhaps, in a national
referendum of Canadians. Has the honourable senator given this
matter any thought, or has he reviewed it in his research? A
referendum could be held in Quebec which, purportedly, may be
binding on Canada if the House of Commons says so. The fact is
the matter of the bill, which sets out this legal scheme, imposes
no obligation whatsoever on the Government of Canada to
consult the opinion of all of Canada by way of the same
technique, called "a national referendum."
Senator Lynch-Staunton: Far be it from me to explain the
bill, but I think the answer is that the House of Commons is
called upon to play a role in the preliminary stages in assessing
the question. If the question is assessed as favourable, then the
House will assess the answer. If it supports the answer, then it is
out of the picture. What happens, as I read it, is that under
clause 3(1) an amendment is necessary and all provinces and the
Government of Canada must participate in the drafting of that
amendment. That is what draws the rest of the country into the
ultimate breakup of the country.
Senator Cools: Essentially, the committee will have to look at
that question. What you are saying is that the bill lays out a
method for much later, but Canadians are not consulted as to
whether it should happen.
Hon. Douglas Roche: If the purpose of Senator
Lynch-Staunton's speech was to show clearly that his opposition
to the bill is principled, fundamental and does not rely on
discussion of the Senate's role in the determination of clarity,
since he hardly mentioned the word "Senate" in his address, then
Senator Lynch-Staunton certainly succeeded. He made that clear.
However, because the role of the Senate in participating in the
deliberations on the establishment of clarity is controversial,
would the senator give us his views on the manner in which the
bill speaks about the role of the Senate? I am sure Senator
Lynch-Staunton has strong views on this since he indicated
earlier that this is a concern. Perhaps he is leaving this provision
for another member of the caucus to address.
However, at this central moment in the debate, will Senator
Lynch-Staunton give us his views on the Senate and also give us
his view as to whether the bill is fixable by strengthening the role
of the Senate in the determination of clarity?
Senator Lynch-Staunton: Yes. I did not refer to the Senate as
such because others in the caucus will. I found the speech too
long and there were many other things I would have liked to
include in it. To speak just on the Senate alone would have taken
me quite a few minutes.
Honourable senators, it is an insult to Parliament, not just to
the Senate, to be excluded from the process, any parliamentary
process. It is an insult to the parliamentary system, not to the
Senate itself, to deliberately exclude an essential body to the
system from any decision whatsoever where Parliament should
Senator Kinsella, in particular, will address that particular
feature of the bill. I urge all senators to be here because he will
set out very clearly how the Senate has been slighted, what its
true role is and where we should be in this process.
Hon. Herbert O. Sparrow: Honourable senators, I
understand there are a number of reasons Senator
Lynch-Staunton wishes to see the bill defeated. One sufficient
reason, in his opinion, stated now, is because of the role of
Parliament in the process.
My honourable friend has suggested certain amendments to
the bill regarding majorities, et cetera, in a referendum and has
discussed defeating the bill in its entirety.
Is the honourable senator suggesting that we make
amendments to the legislation, and even if those amendments are
passed, he would still vote against the bill as amended because
he is opposed to the overall principle of the bill?
Senator Lynch-Staunton: If the amendments were along the
line that I suggested, I would have many fewer problems in
supporting the bill when it came to third reading. I would prefer
that the bill not be before us. However, if we can pass a so-called
secession bill where the rules of a very dangerous game are so
difficult to apply that they are practically impossible, and if we
can act deliberately as a signal to those who want to break up this
country that we will not be part of the process, then I would be
willing to support that kind of legislation.
Hon. Joan Fraser: Honourable senators, I have a question for
Senator Lynch-Staunton. I am a little troubled by one thread of
his argument and by some of the questions.
I believe one of the great glories of this country is that our
Constitution does not say that Canada is indivisible, as does the
French constitution and various other constitutions. It is one of
the greatest qualities of this country that we do discuss these
matters rather than fighting civil wars about them. I am troubled
by the thread of my honourable friend's argument where he says
we should not even talk about secession, and if ever it becomes
impossible to avoid talking about it, we should play hardball. Am
I right or wrong when I discern in that line of argument that
Quebec, or any province for that matter — but his province, like
my own, is Quebec — should not be allowed at all to secede
Senator Lynch-Staunton: No. I tried to make clear that I do
not think that Parliament should initiate a process whereby, if
accepted through Bill C-20, it would tell a province under certain
conditions that secession must be discussed. I am saying: Let the
Parliament of Canada make it clear that the only time it will be
involved in a secession discussion is when all other avenues of
keeping that province in the federation have been explored and
have been found wanting. Let us come in at the end, not start at
Hon. Dan Hays (Deputy Leader of the Government): As
honourable senators know, this is a short day. There is one item
further down on the Orders of the Day that I wish to ask leave to
bring forward now. It is not government business. It is item No. 2
under the rubric Reports of Committees. It has to do with the
fifth report of the Standing Senate Committee on Social Affairs,
Science and Technology. It involves a question asked of Senator
Kirby by Senator Lynch-Staunton about a condition that Senator
Lynch-Staunton wishes to see satisfied before we deal with this
matter. Accordingly, I ask for leave to bring this item forward
The Hon. the Speaker pro tempore: Honourable senators, is
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I find it passing strange that something else
is happening here that is more important in the mind of the
Deputy Leader of the Government than government business. If
that is his position, I have no objection.
Senator Hays: Honourable senators, I do not want to make a
qualitative statement about the importance of any item on the
Order Paper. Sometimes, at certain hours of the day, bearing in
mind there is not time for many more or any more speeches, it is
appropriate to deal in an orderly way with the business of the
chamber. My suggestion is an attempt to do just that. However, I
understand Senator Kinsella. If leave is not forthcoming, then we
will proceed with the Orders of the Day.
The Hon. the Speaker pro tempore: Is leave granted,
Report of Social Affairs, Science and Technology
Committee Requesting Authorization to Engage Services
On the Order:
Resuming debate on the motion of the Honourable
Senator LeBreton, seconded by the Honourable Senator
Nolin, for the adoption of the fifth report of the
Standing Senate Committee on Social Affairs, Science and
Technology (budget—study on the state of the health care
system in Canada) presented in the Senate on February 29,
2000.—(Honourable Senator Lynch-Staunton).
Hon. Michael Kirby: Honourable senators, I rise to respond
to a question that Senator Lynch-Staunton quite legitimately
raised on March 2 with respect to the budget of the Social Affairs
Committee in relation to the study of the federal role in the
health care system.
In the question that Senator Lynch-Staunton would have
addressed to me had I been in the chamber at the time, he
referred to a newspaper article that suggested — and he was
extremely careful in his remarks to make it clear that he did not
endorse the insinuation — that because I happen to be on the
board of directors of a long-term care company, it was open to
question as to whether I was in a conflict of interest.
I will respond specifically to that question and also to another
comment Senator Lynch-Staunton made, which was quite helpful
on the issue. Until I saw that story in the newspaper, it had never
occurred to me that this could be an issue. I happen to be on the
board of directors of a company that is in the long-term care
business. Long-term care is not funded by the federal
government, is not subject to medicare, and is not subject to the
Canada Health Act. Therefore, it had never occurred to me that
anyone could see a potential conflict of interest in my position on
the board. Indeed, I still do not understand this perception. As I
mentioned, Senator Lynch-Staunton did not even suggest that
there necessarily was a conflict.
However, having said that, given the fact that some people
think that there could be a potential conflict, Senator
Lynch-Staunton suggested, and I have taken up his suggestion,
that perhaps the Social Affairs Committee should adopt the
process that I put in place when I was chairman of the Banking
Committee and we were dealing with financial services
legislation. That process involved, originally, myself as chairman
tabling a letter with the Law Clerk and Parliamentary Counsel of
the Senate, Mr. Mark Audcent, outlining any business activities
that I might have had with respect to financial institutions,
because we were, at that time, considering the MacKay report. I
urged all members of the Banking Committee to table a similar
letter outlining any relationships they had with financial
institutions, just so that there would be no question about any
conflict of interest. If a senator did have an interest in a financial
institution, it would be publicly declared, since the intent was to
make these letters available, as indeed they were, to members of
the media who sought them from the Law Clerk.
As it had not occurred to me that anyone could perceive a
conflict in connection with the Social Affairs Committee, it never
occurred to me to adopt the same process in this instance.
Nevertheless, the issue has been raised. As soon as I read the
transcript of Senator Lynch-Staunton's comments in the Senate, I
proceeded to do exactly what I did previously with the Banking
Committee. I tabled a letter with the Law Clerk of the Senate.
That is a public document. The letter explicitly tells the Law
Clerk that he can make it public. I also wrote to all the members
of my committee and urged them to write such a letter to the Law
Clerk. Senator LeBreton has already done so, and I presume that
other members of the committee will do so in the future.
As an aside, since I also sit on the Subcommittee on
Communications of the Transport and Communications
Committee, I did the same thing with respect to that subject, even
though Senator Lynch-Staunton did not raise that matter.
Finally, every committee I have ever chaired has always
attempted to reach a consensus on issues before the committee.
Therefore, only on very rare occasions have those committees
been forced into a vote. We have always attempted to reach a
consensus solution. I am happy to state publicly that if, in the
course of deliberations on health care, a committee that I am
chairing has to vote on an issue relating to long-term care or
home care, I would abstain on the grounds that the company on
whose board I sit is in that business. I hope that we are not forced
into votes. It is my hope that the committee can develop
consensus solutions. That has been the great strength of the
Banking Committee over the years and I hope that it will become
the strength of the Social Affairs Committee as well.
I believe that that responds to Senator Lynch-Staunton's
question. I should like to thank him for giving me the opportunity
to put that on the record because it had not occurred to me that
this could be an issue in this case.
Hon. Wilbert J. Keon: Honourable senators, I have received
Senator Kirby's letter and I am responding to it by disclosing all
of my own pertinent information.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, I wish to thank Senator Kirby for
understanding the spirit in which my comments were made. It is
important, in this institution in particular, that as full disclosure
as possible is made. It is too bad that we do not have guidelines
on this. I recall that some years ago there was an attempt made to
establish such guidelines, and that should be revived. It would
make everyone more comfortable. We have nothing to hide here.
I understand that the proposition never occurred to Senator Kirby
until he saw the article, and I understand his reaction. However,
others who saw the article would interpret it in the wrong way.
This has cleared the air and I wish him success in the difficult
task upon which he has embarked with the Social Affairs
Senator Kirby: I thank Senator Lynch-Staunton for those
comments. It was precisely the failure of the effort to establish a
set of guidelines in this place several years ago that led me to
take the ad hoc measure that I took with the Banking Committee.
I would hope that the Standing Committee on Privileges,
Standing Rules and Orders would take it upon itself to, at the
very least, adopt the process that I have followed on an ad hoc
basis on two occasions; that is, simply as a matter of process, to
have members of the committee table letters with the Law Clerk
outlining outside interests they have with respect to the subject
matter the committee of which they are a member is studying.
I agree with Senator Lynch-Staunton that that is the least we
should do. I will write to Senator Austin, the chairman of that
committee, about this. I hope that the committee will consider
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?