Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 50
Tuesday, May 2, 2000
The Honourable Rose-Marie Losier-Cool, Speaker
Table of Contents
Tuesday, May 2, 2000
The Senate met at 2 p.m., the Speaker pro tempore
The Late Honourable Richard A. Donahoe,
Hon. Lowell Murray:
Honourable senators, I have the sad
duty to record the death, on Tuesday, April 25, of our former
colleague the Honourable Richard A. Donahoe. Richard
Donahoe was elected mayor of Halifax during the 1950s, was
five times elected to the Nova Scotia legislature and, from 1979
until his retirement in 1984, was a member of the Senate.
In provincial politics, Richard Donahoe served in
the governments of Premier Robert L. Stanfield and Premier
G.I. Smith as attorney general and minister of public health. In
the latter capacity, he is best known for having successfully
guided the implementation of both the National Hospital
Insurance Plan in the late 1950s and of medicare in the late
1960s in his province.
Richard Donahoe was a wonderful orator and also a keen
judge of oratory. From time to time in my youth, I found myself
a small part of a supporting cast of speakers at some of those
marathon political meetings in Nova Scotia where Dick Donahoe
was usually the main attraction. It was a somewhat intimidating
experience. For five years here in the Senate, whenever I spoke,
I was aware of his attentive eye and ear. Even today, it is with
some trepidation that I begin. Let there be no doubt — he expects
us to rise to this occasion.
His funeral last Saturday was at St. Mary's Basilica in Halifax.
In that same church, 105 years ago, the requiem was for Sir John
Thompson, sometime premier of Nova Scotia and fourth prime
minister of Canada. There, 46 years ago, the bells tolled for the
Honourable Angus L. Macdonald, premier through five elections
and Canada's minister of the navy during World War II. Not far
away is Government House, where Joseph Howe, the father of
responsible government, died in 1873, and Camp Hill Cemetery,
where he is buried. At St. Paul's Anglican Church, at the other
end of Barrington Street, funeral services were held in 1915 for
Sir Charles Tupper, premier of Nova Scotia, father of
Confederation and sixth prime minister of Canada. On an
occasion such as Saturday's, one is conscious of being
surrounded by history.
Last week, Richard Donahoe joined this political pantheon and
there he belongs, now part of the proud political history and
tradition of Nova Scotia. He was a greatly gifted and greatly
respected public man. He was much beloved, especially by the
rank and file of the Progressive Conservative Party. Personally,
and from my earliest days as a political partisan, I recall his
kindness, thoughtfulness and encouragement to me and to others.
Dick was an inspiration to several generations of young
Progressive Conservatives in Nova Scotia.
The funeral service was, as they say nowadays, quite "upbeat."
It was the mass of the resurrection, the Easter service, really, with
great music, including a Celtic harp and the choir from Senator
Carstairs' old school. Two former archbishops of Halifax
conducted the service.
It is no disrespect to the liturgy to say that it was also quite a
political occasion. Many of Nova Scotia's leading political
figures from the recent past and present were there, and probably
a few of the future leaders as well. I saw people there with whom
Dick Donahoe had clashed memorably over the years, some of
them Conservatives. They were all there to pay a respectful and
The luck of the Irish had been with Dick Donahoe more than
60 years ago when he met and married a Cape Bretoner,
Eileen Boyd. She was there Saturday with her children and
Altogether, I think the send-off was appropriate to his life —
blessed by the church and surrounded by friends and colleagues
in the city he loved and served. Dick would have found no fault
in the service, and I hope only that he will find none in our
telling of it. It was always a great experience to have been in
Dick Donahoe's company, and I am honoured to have
Hon. B. Alasdair Graham: Honourable senators, I join with
the Honourable Senator Murray in paying tribute to our late
colleague the Honourable Richard A. Donahoe. The passing of
former senator Donahoe was, as indicated by Senator Murray,
deeply mourned at his funeral in Halifax last Saturday. As well,
his life was properly celebrated.
The great Tory warrior, whose tireless passion for public
service was the engine of his long and distinguished career, led a
life far larger than most of his contemporaries. His was a life
gigantic in generosity, voluminous in achievement, and
magnificent in its impact on all of those he touched in this world.
Yes, former senator Richard Donahoe was always larger than
life. Whether as mayor of his beloved native city of Halifax, or
as minister of health and attorney general in the Stanfield and
Smith governments, or as a member of this chamber from 1979
to 1984, Dick Donahoe brought the power of his presence to
many of the great issues of our time, including one of which he
was most proud — a leading role in the implementation of
medicare in Nova Scotia.
A deeply conservative, partisan patriarch of a large, talented
and politically committed Nova Scotia family — with the good
sense to marry a Liberal, I might add, the beautiful and
accomplished Mary Eileen Boyd — Dick remained always the
fiery and convincing patriot to his city, to his province, to his
country, to his church and to his wonderful Irish inheritance.
Indeed, Dick Donahoe always represented to me many of the
fine qualities which are part of that inheritance. He was
quick-witted and gifted with a commanding presence. He was
eloquent and a champion of all his beliefs. He had a gift for
phrases that lingered in the minds of all those who heard him.
Dick's wonderful, deep, baritone voice spoke out always for
what he saw to be true, for what he saw to be right, and spoke out
over the decades for his cherished city, his beloved province, and
always in the interests of the public service of his country.
Honourable senators, Dick Donahoe was a great debater in this
chamber. I remember that we exchanged words on a particular
issue upon which we had a difference of opinion and, as we were
walking out, he said, "Al, you sounded great, but what in the
name of God did you say?"
When I think of Dick and Eileen today — because this was not
only a marriage of love and real devotion but also a powerful
political partnership that lasted 63 years, until his death last
week — I think of the dreams and the accomplishments of their
long life together, of the family they raised, and of the roots they
so deeply nurtured and cherished. It is worthy of note that their
two sons went on to distinguish themselves in the life of
Nova Scotia politics — Terry as both Minister of Education and
Attorney General; Arthur, as Speaker of the House of Assembly,
and today he holds the important position of Secretary-General
of the Commonwealth Parliamentary Association.
Honourable senators, in honouring the memory of our former
colleague, I think of the magic of the words of W.B. Yeats, the
visionary Irish poet who himself devoted much of his time and
energy as a senator to the Irish Free State. In one of his finest
pieces, the senator wrote:
I will arise now and go to Innisfree...I hear lake water
lapping with low sounds by the shore...I hear it in the deep
Dick Donahoe had a heart that was as deep as his conviction
and the devotion to the people he touched throughout his life. It
was Bobby Kennedy who once said that each time a man stands
up for an ideal or acts to improve the lot of others or strikes out
against injustice, he sends forth a ripple of hope.
Honourable senators, although the golden voice is now
silenced, the ripples of former senator Richard Donahoe's life
and times will always be with us.
To his beloved wife, Eileen, to his children and to his extended
family, we extend an expression of the deepest sympathy.
Hon. J. Michael Forrestall: Honourable senators, I wish to
join with Senator Graham and Senator Murray in expressing my
thoughts on the passing of Dick Donahoe. I want at the outset to
express my sympathies to his family, to his children, to his
grandchildren and to his very large and growing family.
I have known and worked with Dick Donahoe since 1957,
when I was working with the party in those days. It was said of
Dick that if he did not know you, he knew someone in your
family. That is sort of gospel in that it says something of the man
who cared, yes, about his city, his church, his family and his
province, but above all he cared for all of the people in that
He was a great Nova Scotian. The Honourable Richard
Donahoe practised law in Halifax after graduating from Saint
Mary's University and Dalhousie University. He spent the rest of
his life as a tireless supporter of that former institution. He served
on the board of governors of Saint Mary's from 1965 to 1971,
and was granted an honourary doctorate of law at the very
university that had nurtured his youth, spiritually and
He was a very prominent member of the Knights of Columbus,
having joined that august organization the year that I was born,
1932. He dedicated, through that organization, as with all other
organizations with which he associated himself, hours, months
and years to works of charity, so much so that the Pope conferred
upon him, in 1969, the order Knight of St. Gregory the Great.
His dedication to his community, his province and his country
is admirable. He was first elected as a city alderman in 1951, was
elected mayor of Halifax in 1952, and by acclamation in 1953
and 1954, a sign of his real and great popularity with the
citizenry of Halifax.
He then turned his hands, as Senator Murray has said, to
provincial politics, when he ran in a by-election in 1954 and
won. He ran in the general election of 1956, 1960, 1963 and
1967. As has been mentioned, he served as attorney general and
minister of public health under the then premier, the Honourable
Robert L. Stanfield, another great Nova Scotian. He continued to
serve in the cabinet of Premier George Isaac Smith.
Dick Donahoe had a leading role — if not the lead roll — in
bringing two great medical care programs to the people of our
Lastly, he was appointed, as we all know, to the Senate in
1979, serving until his retirement, a life-long member of the
Progressive Conservative Party and a protector of his beloved
Today, the Donahoe family name has a recognition within the
province, a name intertwined and forever locked now in the
hearts of our province's great history. He was a good friend, good
counsel, someone with whom I was proud to be associated in the
service to people and service to the Province of Nova Scotia.
I wish to send my heartfelt sympathies to his dedicated and
loving wife, Mary Eileen, and to his sons, Arthur and family and
Terry and family, two great Nova Scotians themselves who have
contributed much and have much more to contribute. They
learned well from their father. I also send my heartfelt
sympathies to Kathleen Niedermayer, Sheila and family, Nora
and family, Ellen Feenan and family, and his sisters, Edith Power,
Geraldine Curran, Muriel Duxbury, and brother Frank, and
innumerable grand and great grandchildren.
Dick Donahoe's life was worth sharing. It was in his practice
of concern and care for people and the worth and dignity of the
individual through which he planted his finest seeds.
To the Donahoe family, those seeds are now growing and they
look pretty good to me.
Hon. Sharon Carstairs: Honourable senators, the Donahoe
and Connolly families have a long history in the City of Halifax.
I know my family, the Connollys, would wish me to say a few
words on the passing of a distinguished man, a politician, a noted
orator, and a member of great distinction of the charitable Irish
Society of Halifax.
Honourable senators, I was six years old, as was Kathleen
Donahoe, when our fathers, Harold Connolly and Richard
Donahoe, ran against each other in the 1948 provincial election
in the constituency of Halifax North. In that contest, my father
was the winner, but it did not affect our friendships, either
between Mrs. Donahoe and Mr. Donahoe or between
Mr. Connolly and Mrs. Connolly as, of course, we as children
referred to our elders in those days.
Kathleen and I continued to walk to Oxford Street School
together. Her brothers, Arthur and Terry, were friends and
classmates of my brothers, David and Dennis. Both Arthur and
Terry, as most of you have already heard, had distinguished
political careers themselves in the Province of Nova Scotia.
Dennis and I became politicians, too, and, like our fathers, on
opposite sides. Because of the examples set by our respective
fathers, politics was a logical choice. It was, I would suggest to
you, a more civilized time in politics, the passage of which I
regret very deeply.
Dick Donahoe — and he was known as "Dick" to most of his
friends, not "Richard" — was appointed to the Senate in 1979. It
was my father's resignation from the Senate that caused the
vacancy to which Dick Donahoe was appointed.
Dick's appointment to the Senate was greeted with celebration in
the Connolly household. After all, we recognized it had to go to
a Tory because the prime minister of the day was a
Tory. Therefore, what better Tory to have it go to than
Richard A. Donahoe?
Mr. Donahoe, as I always called him, also had a distinguished
career as an alderman, as the mayor of Halifax, as a provincial
cabinet minister, particularly in the health portfolio — public
health, as it was referred to then — and also as the attorney
general of the province.
I wish to express my sincere sympathies to the whole Donahoe
family. They are our friends — friends of the Connollys. They
mourned with us the loss of our parents. We mourn today the loss
of their father.
Hon. Donald H. Oliver: Honourable senators, I wish to join
other honourable senators in commenting briefly on the
extraordinary life of the Honourable Richard A. Donahoe of
He was the embodiment of the public service. He was, for all
his adult life, a servant of the people, as mayor of the City of
Halifax, then as a provincial cabinet minister in the government
of Robert Stanfield and others, and finally here as a member of
the Senate of Canada.
He and his family have been close friends of mine for more
than 44 years. It was through Senator Donahoe, his son Arthur
and others, like Mr. Stanfield, that I was strongly influenced
toward the values, principles and philosophy of the Progressive
Richard A. Donahoe was the embodiment of a man, a
conservative, a Progressive Conservative with a social
conscience directed intuitively to helping the less fortunate and
to using the power of politics to equalize opportunity for all
Canadians. His work in bringing a modern and equitable medical
care system to Nova Scotia is but a small part of his important
legacy of public service.
I was honoured to have known him. To his widow, Eileen, his
children, particularly Arthur, Terry and Sheila, whom I know
well, I express my deepest condolences.
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, with your indulgence, I very much want to
say a few words in tribute to a great Nova Scotian.
Dick Donahoe was an honourable man, unashamedly partisan,
gifted, unselfish, and Irish. He loved his God, his family, and his
province, and on those three cornerstones of his life I am told he
would never compromise.
History shows that he was also not a man easily discouraged.
Once he set a course, there was little that could resist his
determination. Despite his questionable political background, he
was able to woo and win Mary Eileen Boyd, who not only
came from one of the strongest Liberal families in Cape Breton
but who worked as the secretary to then Liberal premier
Angus L. Macdonald during the courtship. Rumour has it that she
never cast another Liberal vote from that day on.
An Hon. Senator: Hear, hear!
Senator Boudreau: When Senator Donahoe was elected to
the legislature in 1954, he became the first Conservative elected
from Halifax County in 26 years, but that election did not come
easily. His victory followed four unsuccessful attempts at public
office, at municipal, provincial and federal levels — another
measure of the man's determination.
Dick Donahoe played a major role in bringing together a
distinguished group of Nova Scotians who, in 1956, under
Premier Robert L. Stanfield, won the general election and
subsequently provided solid, honest and competent government
to our province for almost 15 years.
When that team was assembled in 1956, with the path broken
and conditions for victory significantly advanced by his 1954
breakthrough, my father was one of those impressed and
persuaded to run for office by Senator Donahoe. I can still
remember, as a young boy, the admiration and respect that my
father had for him. He was quoted often in our home during that
campaign of 1956. My father lost that election, beginning an
unbroken tradition of political defeat in our family until my
election in 1988. I attribute that, in part, to the fact that I was the
first member of my family ever to seek office as a Liberal.
When I arrived in the Nova Scotia House of Assembly, two of
the first people to make me feel at home were Dick's sons,
Art Donahoe, as Speaker, and Terry Donahoe, who served in the
cabinet of Premier John Buchanan. Decent, able and principled
servants of the people in the mould of their father, I am certain
they made him proud.
Others who have spoken today knew Senator Donahoe far
better than I, but I have seen his tracks in Nova Scotia and I have
felt his legacy. His standard of competent, unselfish and caring
public service remains a daunting standard for all of us who
Honourable senators, Nova Scotia has lost a distinguished
citizen, the Donahoe family a loving husband, father and
grandfather. My heartfelt sympathy is with them, along with my
thanks for sharing him with the people of the province he loved.
Hon. Erminie J. Cohen:
Honourable senators, today we
observe Yom Hashoah, Holocaust Memorial Day. I wish to
express my gratitude and respect to the survivors of the
Holocaust. Yom Hashoah, which means "day of fire", is an
annual tribute to the memory of the 6 million men, women and
children who perished during the Holocaust and is the official
day of mourning for Jews around the world.
The pain and suffering that was inflicted on the Jewish people
and other selected groups is incomprehensible, yet we must
understand that it was rooted in the hatred of its perpetrator and
in the complacency of those who looked on and did nothing.
It is also a time to pay homage to the many "righteous
gentiles" who, at their own peril, rescued and cared for thousands
of Jews during those black, painful years.
Honourable senators, the period between 1933 and 1945
witnessed a total devastation perhaps unequalled in all recorded
history. Many Holocaust survivors have devoted their lives to
ensuring that people never forget the monstrosities that were
allowed to happen, and they continue to fight against those who
deny the Holocaust ever existed. However, passive recollection is
not enough, and the memory of the Holocaust should provide the
impetus for active opposition to racism and hatred.
It is sad to say the world has not learned sufficiently well the
tragic lessons of the Holocaust. There is much inhumanity
around us: the atrocities in Bosnia; the slaughter of thousands of
people in Rwanda, the Sudan and now Zimbabwe; and the ethnic
cleansing in the Balkans. The rise of anti-Semitism and the
insidious growth of hate groups are recent examples that
underscore the deep-seated bigotry that begets hatred
Today, Yom Hashoah serves as a reminder of the millions who
died in the death camps. It is our collective duty, as citizens of
the world, to continue to educate and to speak out against the
evils of hatred, violence and racism.
Hon. Joyce Fairbairn:
Honourable senators, I should like to
draw the attention of the chamber to a very special occasion that
took place last week when the house was not sitting. April 27
was the annual Canada Book Day, a project of The Writers' Trust
of Canada. This is a day we celebrate each year in this chamber,
and we do so in terms of four objectives that this day promotes:
to celebrate the importance of the role of literature in Canada's
past, present and future; to nurture the love of reading among our
young people, particularly in our schools; to celebrate the
international success of Canada's literature and our heroes; and
to promote Canadian books and the people who write them.
Honourable senators, this is a good occasion for me to point
out that if we did not have and were not promoting a culture of
literacy and lifelong learning in this country, we would have a
sad situation in terms of the work that our talented authors
Because literacy is a cause that governs my life, it is with a
sense of joy that I do as I have done for the last several years and
give a book to a friend. My friend on Canada Book Day is
Senator John Lynch-Staunton, and this year I have a special treat
for him. It is a remarkable book by an author and an absolutely
outstanding photographer from my home town of Lethbridge,
Dr. Van Christou, who, it is said, paints with his camera lens. It is
one of the few books that is totally about an area in which many
members of Senator Lynch-Staunton's extended family live, that
southwest corner of Alberta with its rolling hills and its
mountains. It is called, in the words of our aboriginal people,
Land of Shining Mountains, and it is a great pleasure for me to
give it to the honourable senator today.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, I ask for 24 hours to reply. I appreciate the
gift, particularly as I realize that despite our efforts, particularly
those of Senator Di Nino, Senator Fairbairn had to pay the GST
on this book!
Report on Sea King Talon41 Incident
Hon. J. Michael Forrestall:
Honourable senators, I wish to
place on the record this afternoon something that may cause
some of you to think and wonder. I certainly hope this is true of
the Leader of the Government in the Senate.
I am referring to the report on the Talon41 incident. It is an
official summary and I want honourable senators to listen to it.
All times are approximate.
At 10:43, Talon41 crew begin to detect a distinct "waxy acrid"
smell in the aircraft. The crew suspected a possible electrical
source and turned off all non-essential systems — that is,
anti-ice, for example. The crew turned the aircraft in the
direction of YAW, which is, of course, Shearwater. At this time,
Talon41 was in dip sector 2, approximately 15 nautical miles
south of the nearest point of land, or 29 nautical miles southeast
At 10:45, two minutes later, the co-pilot noticed a fluctuation
in the transmission pressure gauge, between 45 and 60 PSI.
Talon41 then declared an in-flight emergency, known as a PAN.
Talon41 then turned north to close the NPL, which is the nearest
point of land, while continuing to monitor and look for secondary
indications. Shark28, which is another Sea King, began to close
Talon41 to shadow the aircraft back to Shearwater.
At 10:52, the transmission pressure — Tx. Press — continued
to fluctuate and then dropped below the green operational limits.
Shark28, now in escort of Talon41, radioed that they could see
"considerable" fluids leaking down the left-hand side of the
aircraft. TX pressure stabilized at 20 PSI — which is outside of
the operational limits. The crew decided to land as soon as
possible in the Lawrencetown area. A mayday was sent by
Talon41 at 10:52, to land as soon as possible.
At 10:58, the crew noticed the TX pressure drop to 15 PSI.
The crew decided to land immediately. Shut-In Island was nearby
and chosen as the landing spot.
At 11:01, Talon41 began the transition to land on Shut-In
At 11:02, the crew saw the TX pressure warning light come
on, indicating 12 PSI or less. Some grinding sounds were heard
by the crew.
At 11:03, Talon41 landed on Shut-In Island.
At 11:11, Talon41 successfully shuts down and radios that the
crew and aircraft are okay. The left side of Talon41 sinks slightly
into the soggy ground.
I will be asking some questions about that later.
National Native Role Model Awards
Hon. Mabel M. DeWare:
Honourable senators, on Friday
April 14, after most honourable senators and members of the
other place had left for the Easter break, Senator Willie Adams
and I had the rare privilege of attending a very special ceremony
at Government House. It was hosted by the Governor General of
Canada, Her Excellency Adrienne Clarkson.
The ceremony honoured the newest recipients of the National
Native Role Model Award. Madam Clarkson presented
certificates to nine young people who have made some very
impressive achievements in various fields. Their
accomplishments are even more remarkable when you consider
that each of them had overcome tremendous challenges and
personal hardships to achieve the status that they have in their
I hope I can convey to you something of the sense of awe that
I felt as I watched these fine young people being honoured in
Rideau Hall. They were chosen as role models for aboriginal
young people, yet they are truly an inspiration to us all. The
contributions that they have made to their communities and to
our society enrich each and every one of us.
The National Native Role Model Program amplifies those
contributions by enabling the award recipients to actively serve
as examples of what young aboriginal Canadians can hope to
achieve. During the next two years, these role models will visit
aboriginal communities and share their talents and vision with
thousands of young people.
The National Native Role Model Program receives funding
from Health Canada and is administered through a national office
located in Kahnawake, Quebec. It is a national health program
designed to promote and encourage the adoption of healthy
lifestyles based on the traditions of wisdom, love, respect,
bravery, honesty, humility and truth among the First Nations and
Inuit youth in Canada.
All of us who listened to the citations of the year 2000 award
recipients felt a real sense of pride in knowing that Canada's
aboriginal young people have such role models who can help
make an important difference in their lives.
Special Senate Committee on Bill C-20
Notice of Motion to Appoint
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I give notice that, on Thursday next, I will
That a special committee of the Senate be appointed to
consider, after second reading, 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
That, notwithstanding rule 85(1)(b), the committee be
comprised of 15 members, including:
Senator Joan Fraser
Senator Céline Hervieux-Payette, P.C.
Senator Colin Kenny
Senator Marie P. Poulin (Charette)
Senator George Furey
Senator Richard Kroft
Senator Thelma Chalifoux
Senator Lorna Milne
Senator Aurélien Gill;
That four members constitute a quorum;
That the committee have power to send for persons,
papers and records, to examine witnesses and to print such
papers and evidence from day to day as may be ordered by
That the committee be authorized to permit coverage by
electronic media of its public proceedings with the least
possible disruption of its hearings; and
That the committee have power to retain the services of
professional, clerical, stenographic and such other staff as
deemed advisable by the committee.
Replacement of Sea King Helicopters—Report on
Hon. J. Michael Forrestall:
Honourable senators, my
question is for the Leader of the Government in the Senate.
A few moments ago I read a brief summary of the events
surrounding an incident involving Talon41. I wonder if the
minister has had an opportunity to read separately the incident
summary. The events to which I refer took place in broad
daylight, honourable senators, and in good weather. What would
have happened to the brave crew in the dead of night and in bad
I am no longer particularly interested in hearing about the
maintenance regime. These aircraft are always safe as long as
they are on the ground. That is excellent but not enough to ensure
the reliability of these aircraft. I do not want to hear about safety
and reliability being the minister's first priority, because action or
inaction speaks louder than words.
I want to know precisely what the Leader of the Government
will do this afternoon to get the Prime Minister to initiate the
Maritime helicopter program.
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I am not familiar with the details of the
incident that the honourable senator brings to the attention of the
Senate this afternoon. However, I will contact, without delay, the
minister responsible and ask him to provide details of this
incident to me. Following that, I may be in a position to share
those details with all honourable senators, to elucidate on the
Other than giving that specific undertaking, I wish to say that
the Prime Minister is very much aware of my ongoing views
with respect to the Sea King helicopter replacement program. I
also venture to say that he is familiar with the views of the
honourable senator on this issue. The minister responsible, when
visiting Halifax this past weekend, indicated publicly his views
with respect to the priority of such a replacement.
The existing helicopters are old. They are complicated pieces
Senator Forrestall: "Dangerous" is the word for them.
Senator Boudreau: We expect that the maintenance program
now in place will ensure that the equipment remains safe for
Senator Forrestall: Honourable senators, at the risk of being
repetitive, those aircraft are safe, stable and wonderful — as long
as they stay on the ground.
Will the minister go to the Prime Minister this afternoon and
ask him to initiate this program? Do not listen to the Minister of
National Defence because God knows that what he is saying has
nothing to do with practicality, reality, care or concern. Would
the minister please go to the Prime Minister and ask him to
initiate the program before we have a death?
I ask the minister to think back to the Talon41 report. They
had one minute to get to dry land. I ask the minister go to the
Prime Minister and say to him, "For God's sake, Prime Minister,
please initiate the program. Show some faith in the men and
women who must fly these aircraft."
Senator Boudreau: Honourble senators, I can only reassure
the honourable senator and others that the Prime Minister and the
Minister of National Defence are concerned with the welfare of
all individuals who serve our country in the Armed Forces,
including those who fly Sea King helicopters. I am informed by
the people who service them and by the senior military personnel
who send those people out on the helicopters that, in fact, they
are not putting their lives in jeopardy.
However, as we have said before, this is an old, complicated
piece of equipment. Although I am not familiar with the details
of this particular incident, it seemed that the competence of the
crew and their expertise was able to bring it to a conclusion
Senator Forrestall: Honourable senators, I keep hearing that
the minister will carry the message immediately to his colleagues
later today. In such cases, I do not know whether the minister
will send a memo to the Prime Minister's Office indicating the
questions to which he has responded in the chamber about this
incident. If that is the process, I request that the minister table in
this chamber copies of all messages he sends to the Prime
Minister about this particular program.
Senator Boudreau: Honourable senators, I would be very
reluctant to indicate to the honourable senator that I will table
documents which may have constituted discussion around the
cabinet table. The conveyance of the honourable senator's views
and, indeed, of my own, has been done by various means, all
within the confines of cabinet confidentiality. I can assure the
honourable senator that those views are made known on a
Hon. Gerald J. Comeau: Honourable senators, I was
surprised when the minister indicated that he was not familiar
with the incident, even after it was carried in all of the media at
that time in Nova Scotia and throughout Atlantic Canada.
One must wonder where the minister was during that information
Honourable senators, I should like to point out that the
minister and the government are being extremely irresponsible
regarding this incident. They are sending the message that the
Government of Canada condones sending people out in machines
that are not safe to fly. The minister calls them old — we call
them something worse. What kind of message is this sending to
the Canadian public when they have to rely on examinations of
commercial airlines by Canadian authorities?
I want the minister to realize the seriousness with which
Canadians, especially Atlantic Canadians, view depending upon
their government for safety. If the Canadian government cannot
provide safety for its military, how can we depend on the
government to take care of the safety of all Canadians?
Senator Boudreau: Honourable senators, I can only convey to
the honourable senator the reassurance I have received from the
people who are directly involved. I have had an opportunity to
visit the site where these helicopters are maintained. I have
spoken with those who work directly on the equipment and with
senior officials in the company. I have spoken to other military
personnel and to the minister. I can only give the honourable
senator the assurance that I have received, that senior staff would
not send military personnel out on a piece of equipment that they
felt would endanger lives.
These incidents do occur. As a matter of fact, they occur with
brand new equipment. In saying that, I am not minimizing the
fact that this equipment is old and complex. It is subject,
however, to incidents like this one from time to time which,
again, was handled very professionally by the crew in this
Hon. David Tkachuk: Honourable senators, many of us on
this side of the house are quite disturbed. We do not understand
why the government is so reluctant to address this important
issue. I will be careful in what I am about to intimate. It seems to
me that the government has been intransigent in this matter, as it
has been in other matters since the 1993 election. I refer, for
example, to the supposed Pearson airport scandal and the
purchase by Air Canada of airplanes in the supposed Airbus
scandal. After being intransigent, they attempted to implicate the
then prime minister in something which everyone now knows
was totally false. They refused to withdraw their allegations of
criminal behaviour. In this case we have aircraft that are falling
out of the sky.
Is this because there is a lack in government policy or,
perhaps, a reluctance on the part of the government to admit that
they were wrong in cancelling the contract? The reason they are
willing to sacrifice the lives of Canadian boys is that they are
reluctant to admit that they were wrong in 1993, when they
cancelled the contract for new government aircraft. They are so
reluctant, in fact, that they would rather fly a bucket of bolts and
risk the lives of military personnel, whom we have an obligation
to respect and protect. I believe that is why the government is
acting in the stubborn manner in which it is behaving today.
Senator Boudreau: Honourable senators, I find it rather
difficult to find a question in the honourable senator's statement.
In fact, one might even describe it as a diatribe.
If the honourable senator is suggesting that the Prime Minister,
the Minister of National Defence and senior military personnel
are all involved in a massive conspiracy for political purposes to
put Canadian servicemen's lives at risk on a daily basis, then I
think he has gone way out in left field and overstated his
argument. I can only assure him that any evidence I have
received or any discussions I have had with senior people, many
of whom are not politically involved, indicated to me that such is
not the case.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, the position of some of us on this side is
simply that we believe the Sea King helicopters should be
grounded. The position on the government side seems to be that
the minister in this place and the Minister of National Defence
say, "No, it is okay. They can continue to fly them."
Based on that, are the minister in this place and the Minister of
National Defence prepared to resign, should there be another
incident such as the one described in detail by Senator Forrestall?
Senator Boudreau: Honourable senators, I will repeat once
again that indications from senior military personnel, senior
civilian personnel, and from the Minister of National Defence
himself are that the equipment is competent to do the job. No
personnel is sent up in equipment that is known to put that
serviceman in harm's way. That is the responsible answer to the
Replacement of Sea King Helicopters—Possible
Examination of Airworthiness of Aircraft by
Transportation Safety Board
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, perhaps I can phrase our concern in another
way. Is it not true that if the Sea Kings were civilian rather than
military aircraft and came under the jurisdiction of the
Transportation Safety Board, they would have been declared
unfit to fly and grounded a long time ago?
Basic knowledge of the criteria applied by the Transportation
Safety Board and its equivalent in the United States indicates that
aircraft are grounded on the slightest suspicion of the most
superficial flaw. Here we have had years of chancy flying and all
we get is the reassurance that the guys on the ground say it is
okay. I would be more reassured if the minister would ask the
Transportation Safety Board to examine these aircraft and give us
a full report. The reassurances of the military are not enough.
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I cannot speculate on what the situation
might be in any of those hypothetical circumstances.
Senator Lynch-Staunton: They are not hypothetical; they
Senator Boudreau: I can tell my honourable friend that the
senior military personnel who were charged with making these
operational decisions are responsible people. They are concerned
about the welfare of the people whom they command and we
should allow them to do their job.
Replacement of Sea King Helicopters—Clearance to Fly
Aircraft in United States Air Space
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Can the minister advise this house whether the Sea King
helicopter, when it can fly, is permitted to fly in American air
space subject to the regulations of the Federal Aviation
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I cannot answer that question. I will take it
as notice and return with an answer.
Replacement of Sea King Helicopters—request for
Review of Maintenance Records by Transportation
Hon. J. Michael Forrestall:
Honourable senators, the answer
to that question might spur some action.
It is quite true, honourable senators, that Talon41 was in good
mechanical condition while it was sitting on the ground, but
within the space of 10 minutes it went from being stable to being
I hope that the Senate Subcommittee on Transportation Safety
will pursue the question of who should have priority jurisdiction
over the investigation of air incidents, in particular, in Canada.
Would the minister consider having a discussion with the
Minister of National Defence, perhaps the Prime Minister, and
perhaps other members of that military advisory group within
cabinet with a view to inviting Mr. Benoit Bouchard, Chairman
of the Transportation Safety Board, and his team to review the
evidence provided to the Minister of National Defence by the
maintenance staff, the very people who look after these aircraft,
and to make such a review public so that we might have a
properly informed debate on who is right and who is wrong?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, as I indicated in response to Senator
Forrestall's first question some time ago, with respect to this
particular incident, I will request that the Minister of National
Defence supply me with what information he can and make it
available to the honourable senator. I will include in that request
all of the remarks that have been made by Senator Forrestall and
other senators today during Question Period.
Replacement of Sea King Helicopters—Clearance to Fly
Prime Minister in Aircraft
Hon. Marjory LeBreton:
Honourable senators, would the
Royal Canadian Mounted Police, who are responsible for the
personal security of the Prime Minister, allow the Prime Minister
to fly in a Sea King helicopter?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, that is what we refer to as a hypothetical
Senator Kinsella: The question is operational in nature.
Senator Boudreau: I am sure that the Prime Minister would
be interested in knowing that the honourable senator is concerned
about his flight arrangements. I will pass that concern along to
Replacement of Sea King Helicopters
Hon. Brenda M. Robertson:
Honourable senators, I should
like a simple answer from the minister, please. Why is the
government so reluctant to replace these worn-out helicopters?
Everyone down East knows that they should not be in the air.
They should have been gone years ago. What is going on? Does
the government not care?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I take exception to my honourable friend's
premise that everyone knows that these aircraft should not be in
the air. That implies a level of irresponsibility on the part of
many people who are directly involved in the operational
requirements of these aircraft.
Report of Special Joint Committee on Code of
Hon. Donald H. Oliver:
Honourable senators, my question is
directed to the Leader of the Government in the Senate and deals
with allegations of conflict of interest. It arises from a story in
today's Globe and Mail
. It is entitled "Senator denies conflict of
interest, Bell links past ties with rival and membership on
communications subcommittee." The article by Lorne Surtees,
which my honourable colleague will have read, states:
Senator Michael Kirby has dismissed suggestions from
Bell Canada that past ties with AT&T Canada Enterprises
Inc. and his membership on a Senate subcommittee on
communications put him in a conflict of interest.
As the Leader of the Government will know, in March of 1996
a Senate and House of Commons committee adopted resolutions,
which included the following:
That a Special Joint Committee of the Senate and the
House of Commons be appointed to develop a Code of
Conduct to guide Senators and Members of the House of
Commons in reconciling their official responsibilities with
their personal interests, including their dealings with
Later, as the honourable minister will know, a report of that
special joint committee was tabled in this house.
When, if ever, will the minister act on that report? Does he not
think that acting on a report such as that, which outlines ways in
which allegations such as this can be dealt with fairly, is an
appropriate way to proceed? Does the minister not understand
that failure to act is doing a disservice not only to this chamber
but to individual senators?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, the Honourable Senator Oliver raises a
very interesting point and I should like an opportunity to review
some of the information. It might be helpful if I referred the
question to the chairman of the Rules Committee so that it can be
addressed specifically, perhaps with whatever information the
senator can contribute. I will reserve my response until I review
the matter in more detail.
Hon. Jack Austin: Honourable senators, Senator Kirby wrote
to me, as Chairman of the Standing Committee on Privileges,
Standing Rules and Orders, raising the question of conflict of
interest with respect to both his directorship on a company
known as Extendicare, which question was raised relative to his
chairmanship of the Standing Senate Committee on Social
Affairs, Science and Technology, and with respect to AT&T
Canada, where he served as a director up until two years ago. He
asked in his letter that the committee undertake a review of the
appropriateness of service on committees by senators.
Honourable senators will recall that when Senator Kirby was
chairman of the Banking Committee, three or more senators were
directors of banks and other financial institutions. In that case,
the procedure used by the Banking Committee was a policy of
transparency and disclosure of all interests.
Honourable senators, the Standing Committee on Privileges,
Standing Rules and Orders has a meeting tomorrow to examine
this question raised by Senator Oliver. I would welcome his
Senator Oliver: I thank Senator Austin. May I ask that his
committee consider the report of the Special Joint Committee on
Code of Conduct that has been tabled in this chamber and in the
House of Commons? It is a report that might help shed some
light on this problem. I would direct Senator Austin in particular
to two of the purposes set forth in the official report that was
tabled in this chamber, which read as follows:
The purposes of the Code of Official Conduct are:
1. to recognize that service in Parliament is a public trust;
3. to reassure the public that all Parliamentarians are held
to standards that place the public interest ahead of
Parliamentarians' private interests and to provide a
transparent system by which the public may judge this to
be the case;
Senator Austin: I thank Senator Oliver. In fact, that document
is one of the documents that will be placed before the committee
Proposal to Develop Ballistic Missile Defence System
with United States—Government Position
Hon. Roch Bolduc:
Honourable senators, the Americans plan
to deploy a limited system of defence against ballistic missiles
that might be launched by certain countries. Has the Government
of Canada taken a firm position on this matter?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, with respect to that possibility, I understand
that certain plans are being considered in the United States. As I
understand it, the Government of Canada has not taken a position
in that respect. Perhaps I may be able to provide better
information shortly, but at the moment I am unable to give any
more detail except to say that, to date, I believe the minister has
not yet taken a public position on that issue.
Senator Bolduc: Honourable senators, I should like to put the
question in greater detail. On the one hand, the Government of
Canada says it has not taken a position. On the other, the
Minister of Foreign Affairs stated in his speech to the UN
Security Council in New York that he was opposed to such an
agreement. Meanwhile, the Minister of Defence, without
necessarily being opposed to an agreement, did suggest the
situation be looked into.
This is an irresponsible attitude on the part of the Minister of
Foreign Affairs. Without any debate, without any decision by
cabinet, the government suddenly announces that it is opposed,
without any knowledge of the repercussions its decision will
have on Canada's participation.
The Americans are not asking us for money, nor are they
asking us to take part. They have, in fact, asked for nothing.
There is something wrong here, it seems to me. Could it be the
minister's activism, which compels him to talk about anything
and everything? How can one conceive that the Minister of
Foreign Affairs, without any clue about what it is all about,
would voice his opposition to an agreement before the United
Nations Security Council?
This is a limited defence system. This is not what President
Reagan wanted, but something completely different, a serious
matter involving a 1972 treaty with the Russians. The minister
says he is against the agreement and the government says it has
not taken a position. Just how does the Government of Canada
Senator Boudreau: Honourable senators, the issue that the
honourable senator raises is one on which at least, as he points
out, two ministers have made some comment. I would prefer to
have an opportunity to clarify the current position of the
government and return to this chamber with some specific
information for the honourable senator.
Requirement that Federal Research Grants have
Private-sector Partners—effect on Areas with No
Hon. Mira Spivak:
Honourable senators, Dr. David Schindler
is a world-renowned scientist who was twice honoured in
Europe. He made Western Canada his home decades ago when
the Department of Fisheries and Oceans lured him from the
Dr. Schindler was recently in Washington to attend the annual
meeting of the American Association for the Advancement of
Science to explain to fellow scientists what has happened to
research in this country. He described to them the Canadian
government's Industrial Innovation Strategy, which now requires
that most federal grants have a private-sector partner — no
commercial partner, no research money.
John Polyani, the Nobel laureate at the University of Toronto,
has warned that industry now has a stranglehold on research.
Dr. Schindler left the Department of Fisheries some years ago
and has been guiding young scientists at the University of
Alberta. Today his research on pesticide contamination in
supposedly pristine lakes in the Rockies is stymied. No chemical
company wants to go there. Therefore, federal research grants are
My question to the Leader of the Government in the Senate is
this: First, has the government considered the consequences of
this approach to research, given these warnings of our most
respected scientists? Second, has the government considered
loosening the criteria for research so that someone like Dr.
Schindler can examine a very important question, namely, the
contamination of lakes in the Rockies?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, perhaps in making those comments Dr.
Schindler may not have been addressing his mind to some of the
very significant programs announced in the last two budgets of
the Government of Canada. There has been a requirement to
match funds, but that requirement is not strictly limited to the
private sector. If that were the case there would not be much
going on in some places like parts of Atlantic Canada, where the
private-sector commitment to research and development is
I will give you two examples of massive programs. There is
the Canadian Foundation for Innovation, which received
$900 million last year and another $900 million in this year's
budget — $1.8 billion directed toward research and
development. There is a matching requirement in there, but it is
not necessarily for industry. Universities have matched funds
and, indeed, provincial governments have set up matching funds.
As a result, a great deal of research and development has been
done across this country.
If you look at another major initiative in the budget, namely,
the Chairs of Excellence, $900 million has been devoted to
securing 2,000 of the best and brightest researchers in the world
to come to Canada, not only to support them in terms of their
presence, salaries, but with respect to equipment and
Those two huge programs will have an incredible impact on
the level of research and development and, perhaps, may even be
of use to the particular gentleman to whom the honourable
Senator Spivak: Honourable senators, I recognize the very
important initiatives that have come forward. In fact, Dr. Henry
Friesen and I believe one of our colleagues here were
instrumental in lobbying the government. I certainly think these
are notable achievements. However, I am not sure that what the
leader is saying will assist the gentleman. Is that the Leader of
the Government's final answer?
Senator Boudreau: Honourable senators, with new and
exciting government programs, large commitments of money to
research and development coming on stream now with virtually
every budget of this Liberal government, of course that is not my
final answer. There will be more exciting programs and a larger
commitment, I am sure, in the next budget and in the budget
Senator Spivak: Honourable senators, I have a supplementary
question. I do hope that, since Dr. Schindler is one of our stars, as
is John Polyani, the minister will convey to the powers that be
this particular situation that confronts Dr. Schindler in his
research on pesticides in lakes in the Rockies. I should hope he
would use his good offices to do that.
Senator Boudreau: I would say to the honourable senator that
I will use my good offices, as she points out, to convey that.
Many universities all across this country will be searching for
those 2,000 people. If there are quality people doing solid
research, they will have plenty of opportunity, both from the
Chairs of Excellence and from the Canadian Foundation for
Pages Exchange Program with House of
The Hon. the Speaker pro tempore:
I should like to introduce to you the pages from the House of
Commons who will be in the Senate this week.
Sonja Harrington is from of Ottawa. She is pursuing her
studies at the Faculty of Public Affairs and Management at
Carleton University and is majoring in international business.
We also have Cheryl Kawaja of Port Hawkesbury, Nova
Scotia, who is enrolled in the Faculty of Public Affairs and
Management at Carleton University. She is majoring in
Welcome to the Senate.
Canada Elections Bill
Third Reading—Debate Adjourned
Hon. Dan Hays (Deputy Leader of the Government)
the third reading of Bill C-2, respecting the election of members
to the House of Commons, repealing other Acts relating to
elections and making consequential amendments to other Acts.
He said: As there are other honourable senators who wish to
speak at third reading, I will take my place and see if that is
Hon. Donald H. Oliver: Honourable senators, I wish to speak
but not today. Therefore, I will take the adjournment of
On motion of Senator Oliver, debate adjourned.
Bill to Give Effect to the Requirement for
as Set Out in the Opinion of the
Supreme Court of Canada in the Quebec
Second Reading—Debate Continued
On the Order:
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, An Act to
give effect to the requirement for clarity as set out in the
opinion of the Supreme Court of Canada in the Quebec
Hon. Céline Hervieux-Payette: Honourable senators, Canada
is a magnificent country and a strong federation. It is the envy of
many nations because of its tolerance and the fact that it engages
in dialogue to resolve differences. It can sometimes happen,
however, that events and a desire for urgent action can hasten
changes before time has been taken to consider all the factors
involved. The purpose of Bill C-20, the clarity bill, is to protect
the rights of all Canadians during a referendum that could result
in negotiations on separation. I therefore believe that this bill is
as important as it is necessary and I support it without
Quebecers could not answer the questions asked during the
1980 and 1995 referendums by a simple yes or no. These were
complex questions involving options that were not clear. Their
ramifications were difficult, if not impossible, to assess. The
leaders of the separatist movement had formulated the questions
so as to let voters think that secession was not really separation
from Canada, when the intention was in fact to destroy such a
beautiful country with all it has to offer.
Let us remember that, in both cases, the questions asked were
formulated unilaterally and adopted by the Péquiste majority, and
imposed on provincial Liberals and, obviously, on the rest
Should a nation such as ours be dissolved because the question
is not clear? Of course not. Canadians have rights and freedoms
and a quality of life unheard of in many countries.
The people of Quebec must not be allowed to lose these
advantages because they have been taken in by flowery rhetoric.
If, by misfortune, the government were to have to enter into
negotiations on separation, it should do so only on condition that
the population of the province of Quebec has clearly expressed
its desire to no longer be part of Canada.
Following the 1995 referendum in Quebec, with its dubious
question on sovereignty association, the issue of secession was
referred to the Supreme Court of Canada. In its opinion on the
reference concerning the secession of Quebec, the Supreme
Court confirmed the rights of citizens to be protected against any
unilateral attempt to proceed with secession and stated that there
is no obligation to negotiate separation, unless a clear majority
votes in favour of that option.
The Supreme Court also said that if there were a clear majority
on a clear question on separation, it would then be necessary to
negotiate within the Canadian constitutional framework, which is
currently silent on such a process.
Honourable senators, there are people willing to ignore or
threatening to ignore parts of that opinion, thus putting
Canadians in a position where they could lose their country in the
heat of the action.
Above all, we must not forget that secession would affect not
only our contemporaries but also future generations, who might
well wonder how something so important was done so flippantly.
Honourable senators, I will certainly have to answer for this to
my three children and six grandchildren.
Separation must not occur in a state of confusion and outside
legal parameters. Bill C-20 follows up on the Supreme Court
opinion and ensures that the Government of Canada cannot enter
into negotiations in the absence of a clear majority on a clear
question, and that such negotiations would take place within a
Honourable senators, the federation called Canada works. It is
a federation that is evolving and the Government of Canada
wants to work with all its partners to make sure it is evolving in
the best possible way.
Our federation is made up of a strong national government and
of strong provinces, as evidenced by our tax system. Some areas
come under federal jurisdiction, while others fall under the
provinces' authority. However, the various levels of government,
including municipalities, must increasingly work together to
better serve the public. Our federation is strong because it is
based on a well-established solidarity and diversity, and also on a
tradition of sharing based on the best possible practices. It is
always possible to improve things, and we can continue to make
our federation more effective by cooperating in areas where
federal and provincial activities complement each other.
Therefore, when we coordinate our energies, we work hand in
hand with our partners. The infrastructure program is a fine
example of this. Thus, the federation is all the more effective and
national unity stronger.
More recently, the Government of Canada took a number of
steps to renew its association with the provinces. These include a
framework to improve the social union for Canadians, the
national child tax credit, the Team Canada trade missions and the
Does Quebec benefit from this flexible partnership? Yes, and it
enjoys an enviable degree of autonomy. The flexibility of
Canadian federalism has also enabled Quebec to be distinct from
the other provinces thanks to special arrangements in many
areas. For example, the Civil Code in Quebec underwent a major
reform a few years ago; Quebec has a separate law on income
tax; in international relations, we are familiar with the
agreements in the area of the Francophonie; Quebec administers
the pension plan of many Quebecers, through its Caisse de dépôt
et placement and several other funds in many areas, and there is
the whole area of social policy, which includes post-secondary
education and immigration.
Instead of considering Bill C-20, introduced by the
Government of Canada in an attempt to fix the current federal
partnership in time, I would encourage you, honourable senators,
to see it for what it is: an instrument to protect the rights and
interests of Canadians.
A provincial legislative assembly can formulate a question and
put it within its area of jurisdiction. However, the public to whom
a question on separation is put is entitled to know in advance
what the Government of Canada thinks about the clarity of the
question, given that it will be one of the parties involved in
negotiations and that it represents all of the citizens of Canada.
The question and the majority therefore need to be evaluated
to ensure that there is a manifest desire to separate before the
Government of Canada undertakes discussions that could lead to
the breakup of our country. Bill C-20 applies the Supreme
Court's opinion. Today, in fact, Minister Facal, who spoke before
the Ottawa press club, recognized that Bill C-20 does so.
Instead of having a small majority dictate the breakup of the
nation, Bill C-20 provides for the evaluation of the quality of a
majority. The two go together, in that the majority must be clear
and so must the question. The two cannot be separated. It would
be absurd to base a decision of such magnitude on a voting
process where it was necessary to recount the votes because the
results were too close, as was the case during the last
referendum, or to examine ballots that had been invalidated by
the thousands in certain ridings.
Moreover, it would be irresponsible to think about building a
new country on the basis of a small majority that would not
withstand the uncertainties of long and arduous negotiations on
Bill C-20 does not set a threshold, since the majority will have
to be evaluated under the circumstances surrounding that
particular referendum, as recommended by the Supreme Court. It
will assess the nature of the question.
Should voters give their clear support to a clear question on
secession, Bill C-20 sets out the legal framework for
negotiations. It ensures that all negotiations will comply with the
rule of law and our constitutional principles.
Contrary to the comments made by Mr. Facal today, his
government says that it does not recognize any legitimacy and
scope to the bill. In other words, it does not recognize the
legislation of the Government of Canada, the country in which
that government exists. From a democratic point of view,
Quebecers are protected by this bill.
Let us never forget that secession is a serious measure which
cannot be undone easily. Negotiations to that effect would seek
to end all the Government of Canada's responsibilities toward a
segment of the Canadian population to which I belong.
Therefore, the basic rules must be very clear. Some have said
that Bill C-20 is a step toward secession. For the past 30 years,
we have been living with the uncertainty of a question and we
have had two referendums. I think Bill C-20 aims at keeping us
on the road to democracy. It is sometimes a bumpy road and
there are no shortcuts, but it always leads us towards our goal,
which is a strong country.
It is strange that while Premier Bouchard recognizes that the
Supreme Court opinion establishes the rule of law, today his
government refuses to recognize the bill that is the result of that
It seems to me that when Mr. Facal speaks to us of good faith
he should go back to the statements made at the time of the
Supreme Court reference and ask himself this question: Which is
the responsible government? The one that sets the rules of the
game or the one that continues to play with those rules?
Honourable senators, for the past 30 years, I have seen Quebec
evolve in Canada, within a federation. It has developed industries
in leading edge technologies such as aeronautics, pharmacology,
telecommunications, multimedia, and biotechnology in
partnership with and under the leadership of the Government of
Canada. How can we now ignore the fact that people want to
abandon this country by not passing a bill which will oblige us to
respect the wishes of Quebecers? The bill sets out clear
indicators. That is why, honourable senators, I consider it my
duty to support this bill and I encourage my colleagues to do
Hon. Lowell Murray: Honourable senators, does this bill
mean that in another referendum Quebecers will have to choose
between the constitutional status quo and separation?
Senator Hervieux-Payette: The bill deals only with the
clarity of the question and the answer. The question will be up to
the National Assembly alone. I remind honourable senators that,
in the past two referendums, the official opposition in Quebec
has always refused to endorse the question. I return the question
to the honourable senator. We cannot now decide on one option
or another as long as the question has not been formulated. This
bill, as I have already said, is like an insurance policy on the
clarity of the question so that we will have a clear answer with
respect to our collective future.
Hon. Pierre Claude Nolin: Honourable senators, I will ask
my question as a legal expert. Can the honourable senator read
clause 1.(1) of the bill? The honourable senator told us in her
speech that the National Assembly has full authority to ask
whatever question it wants. However, Bill C-20 stipulates that,
for there to be negotiations after this referendum, the question
must be specifically about the secession of the province.
Clause 1.(1) reads as follows:
...the House of Commons shall...consider the question
and...set out its determination...
Is this not an appeal against a decision by a Parliament at a
provincial level of the federation? This decision is being
appealed and heard by another level of the same federation?
Senator Hervieux-Payette: When referring to the question
the National Assembly may ask, I believe that it has shown on
two occasions that it was capable of asking a question that was
certainly checked several times through polls. As long as there
was no possibility of a majority, they kept modifying the
wording. I have seen no questions that asked clearly for a yes or
no on the subject of Quebec's separation. Given the last two
referendums, which gave rise to uncertainty, which have cost two
generations of Quebecers dearly, Bill C-20 now puts an end to
the ambiguity of the questions asked.
The Quebec referendum legislation, honourable senators, can
be used in numerous other cases, not just the future of Quebec. It
can be used for mergers of municipalities, or the acceptance of
other important measures.
Recently, Albertans asked their government to hold a
referendum on the health system. This legislation covers
questions such as these, in Quebec. The government or the House
of Commons will have to address the matter when it affects all
Canadians, including Quebecers.
Senator Nolin: Honourable senators, can the House of
Commons sit in appeal of a decision taken by the Quebec
National Assembly? The answer is yes. The honourable senator
must answer yes, under this bill. Under what principle of
Canadian federalism can this be done?
Senator Hervieux-Payette: It is because when that discussion
takes place, Quebec will still be bound by the Canadian
constitution, which does not include any secession process as
such. It is certainly more prudent for the Government of Canada
to know what the discussions will be. I was not there in 1867.
Other honourable senators may have a better knowledge of
history than I do, but all the provinces thoroughly discussed why
they joined the federation. They did not think about including
provisions on secession. If Quebec wanted to patriate the powers
in another area of federal jurisdiction, we could ask a question.
That would not lead to the secession of Quebec. When the House
of Commons has to decide on the question, it will be to decide
whether Canada accepts to go to the negotiation table to end
Quebec's participation in Canada.
Senator Nolin: Honourable senators, I have another question.
The Hon. the Speaker pro tempore: Honourable Senator
Nolin, I am sorry to interrupt, but the allotted time period has
expired. Honourable senators, is leave granted to continue?
Hon. Senators: Agreed.
Senator Nolin: Let us go back to November 1995, when,
together, we just barely saved Canada. Let us suppose that we
have Bill C-20. We have a question that was chosen by the
National Assembly. If you remember, in early September 1995,
the federalist forces were ahead by about 20 points in the polls.
By the end of the debate on the question, there was a 25-point
lead over the yes side. The House of Commons, under the power
provided to it by Bill C-20, made a decision and told federalists
in Quebec that the question was not clear. Therefore the House of
Commons considered that the question did not exist. What must
the federalists in Quebec do then?
Senator Hervieux-Payette: Honourable senators, I clearly
recall the 1995 campaign, but I do not recall the results of the
polls so well. I know that it is always distressing. I canvassed, as
did a number of my colleagues. If I recall rightly, the official
opposition had criticized the question. It mentioned partnership.
There was talk of the agreement reached on the question with a
member of the ADQ. No one knew what agreement they were
talking about. When we asked people in Quebec, they thought
there was an agreement with the federal government. At that
point, the members of the official opposition in the National
Assembly criticized the question. We knew they had managed to
rope the ADQ opposition member into a rather convoluted
agreement. It is ridiculous to mobilize federalist forces each time
for an obscure question that makes a mockery in the end of the
future of Quebecers. When the government has the courage of its
convictions and puts the real question, it will be easy for us to
Senator Nolin: I agree with the honourable senator. The
question was very difficult to understand, even if we managed to
grasp the implications. We fought to ensure that this question did
not win the favour of Quebecers. Let us transpose Bill C-20 to
1995. If the House of Commons had declared in 1995 that the
question was not clear, what would the federalists in Quebec
Senator Hervieux-Payette: The question is hypothetical. It is
impossible to answer it except to ask why we are going to play a
very dangerous game that destabilizes the entire country, that
will cost the nation in energy and effort and that will leave
marks? The honourable senator acknowledged the obscurity of
the question. In general, we negotiate when the other party is of
good faith and puts the right question. It will be up to the House
of Commons to decide on a question. The real question, in the
past 30 years, would never have had significant support from
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, Senator Hervieux-Payette is a good legal
expert. My remarks concern the opinion of the Supreme Court. I
imagine you have all read it carefully. My question concerns the
problem at page 2 of the bill.
Whereas, in light of the finding by the Supreme Court of
Canada that it would be for elected representatives to
determine what constitutes a clear question and what
constitutes a clear majority —
In all the paragraphs dealing with this question, the expression
used by the Supreme Court is "political actors." It is only in
paragraph 101 that the Supreme Court uses the expression
"elected representatives." In this paragraph, the court addresses
the problem of the negotiations. The negotiations are the
responsibility of elected representatives. Can the honourable
senator explain this?
Senator Hervieux-Payette: The entire debate with respect to
our honourable institution hinges on whether we are political
actors. The government has decided that the representatives of all
electoral ridings in the country are the political actors. Once the
House of Commons, through its elected representatives, has
decided, I see no harm to our institution. If there were
negotiations or major changes, our institution has only a
suspending power, not a final veto. Our institution will certainly
give its opinion on the question. In order to avoid any confusion
that might arise from an unclear question, elected representatives
will have to make known to their constituents their assessment of
the question. Legally speaking, the Senate must examine the bills
that could change the rules of the game following a referendum.
I know that we are not all in agreement on the definition of
"political actor," nor do I like the word "actor." We are not
elected representatives; we are appointed for a fairly lengthy
period. I believe that the decision will have to be taken quickly
and I do not see how our rights as senators and representatives of
the same people represented by members of the House of
Commons will suffer if only elected representatives decide on
the clarity of the question.
Senator Kinsella: It is our duty to protect the future of this
institution. There are two Houses in this Parliament. It is a
bicameral system. If we can find a solution so that both Houses
are equal in the determination of the question without departing
from the process envisaged in the bill, if we can avoid collateral
damage with a certain creativity, would the senator be prepared
to support a proposal to that effect?
Senator Hervieux-Payette: I am certainly prepared to listen
to suggestions, but I have not been convinced so far by the
arguments expressed earlier on the need, in order to go ahead
with Bill C-20, to establish a sine qua non that the Senate be
given a say on the clarity of the referendum question.
Following the decision as to whether the question is clear or
not and whether the process is recognized or not, should changes
be made to rights, this house will retain its legislative powers.
The issue remains the nature and the clarity of the question. For
the institution that will have to consider the question, it will be
more a matter of subjectivity than quality. The same goes for the
majority issue, and I do not believe elected representatives
should be the ones to decide that. However, I am open to any
suggestion from honourable senators.
Hon. Gérald-A. Beaudoin: I should like to ask a question on
our bicameral system. The Fathers of Confederation chose for
Canada a bicameral system at the federal level. Does the
honourable senator not agree that in a bicameral parliamentary
system, both chambers are equal in principle? There might be a
few exceptions, but from a purely legislative point of view, both
chambers are equal and no bill can become law unless they both
agree to it. This is also true of Bill C-20. So why are senators
being asked to vote for a bill that gives the House of Commons a
power it does not give the Senate, and this at a very important
time in our history? Why vote in favour of our exclusion from
the provisions of a bill? I could understand that if it were a
constitutional matter, then we would certainly have suspensive
powers. However, this is not a constitutional matter, it is a
legislative matter. I believe it is not appropriate to ask, through a
bill the fate of which we are to decide today, that we be excluded.
People might say that both chambers may have different powers,
but when one chooses to legislate, one must play by the rules of
the legislative system. In our legislative system, both chambers
Senator Hervieux-Payette: I am totally in agreement. This is
a bicameral system and the two Houses are equal as far as bills
are concerned. In this case, however, it is a matter of recognizing
the clarity of a question by resolution. In the past, the House of
Commons passed resolutions without their having been passed
here in the Senate. I am thinking, for example, of armed forces
participation in certain peacekeeping missions. These were
resolutions and not legislation. Bill C-20 is being examined by
both Houses and will certainly go through the entire process with
both Houses. When it comes to the question and its clarity, this
involves implementation of the bill. For a number of bills, this
can be done only in the House of Commons, this is not a
Senator Beaudoin: Honourable senators, it is true that
Bill C-20 says that, if the House of Commons reaches the
conclusion that the question is not clear, it must order the
government not to negotiate. I am not debating the clear question
and the clear majority, that is another matter. The Senate is
mentioned, however, as having been consulted, whereas the
choice has been made from the start to use legislation in order to
negotiate. The government is perfectly entitled to go the
legislative route, and I am not questioning that. Once it has
chosen to negotiate using a law, it is clearly obliged to respect the
principles of the bicameralism to which I have referred, which
provide that, for either an ordinary law or for an extremely
important one such as Bill C-20, the agreement of the Senate
must be obtained. So much so that, if we say no to the bill, it
will not be able to be passed. Both Houses are therefore equal.
Why, then, in a piece of legislation, is a power assigned to one of
the Houses and not the other? We are told it was because of the
time factor. We can reach a decision in 30 days. There are 105 of
us here. There are three times as many in the other place. We can
reach a decision just as quickly. It seems to me that, if they
choose to take the legislative route, this is very important, but
there is less flexibility. At this point, I wonder if it is not contrary
to the very principles of our parliamentary system to give the
House of Commons considerable power that is not given to the
Senate, whereas we are legislative equals.
Senator Hervieux-Payette: I acknowledge that I subscribe to
much of the honourable senator's rationale, however, I would
point out that, if the House of Commons did not agree on the
clarity of the question or of the result, a vote of non-confidence
would follow and the government would be defeated, something
that certainly could not happen in this house. Furthermore, to
move from that to thinking that we are on equal footing with
respect to all questions in legal terms is another matter. I think
there are powers that belong to the House of Commons that are
not found here. I think that no government has ever been
defeated in the Senate. We must consider the bill in its context.
This bill will enable the Government of Canada to represent
all Canadians and to make sure that all the representatives of
Canadian electoral districts support and grant or refuse the power
to negotiate. This unanimous position would certainly not come
from the separatist bloc.
On two occasions, and in good faith, we entered into
referendum processes with questions that put the entire future of
Canada at issue. At the national level, these referendums left us
unable to re-establish the facts.
We have a bicameral system, it is true, and we have essentially
the same powers, except when it comes to bringing a government
down on a non-confidence vote. This question will certainly lead
to this type of vote, and only the House of Commons has this
Senator Beaudoin: Honourable senators, it is true that the
vote of confidence occurs only in the House of Commons. The
suspensive veto of the Senate applies only to a constitutional
My point is that this is not a constitutional amendment or a
confidence vote. We are dealing with passage of a bill which,
like any other bill, requires the consent of both Houses.
They suggest that we adopt Bill C-20 because they need the
Senate. If we say no, there will be no Bill C-20. We are therefore
being asked to vote on Bill C-20 and, at the same time, on our
own exclusion. This goes against the principles of a bicameral
Hon. Anne C. Cools: Honourable senators, I commend
Senator Hervieux-Payette for her patience. Would the honourable
senator take a question from me?
Senator Hervieux-Payette: Yes.
Senator Cools: The senator has premised a lot of what she is
saying on the term "political actors" — a bizarre, strangely
imprecise term to fall from the mouths of the courts. The
honourable senator gave me some comfort by saying that she did
not like the term.
In Canada, in our system, the position of the Prime Minister is
not an elected position; it is an appointed position. The Prime
Minister of Canada has a commission of appointment that sits on
his wall, just as every member of the Senate does.
There have been several moments in the constitutional
experience of Canada when premiers and prime ministers have
held their offices without even holding a seat in the legislative
assemblies or in the House of Commons. For example,
Mr. Bouchard himself was premier of Quebec for a period of
time without holding a seat in the National Assembly of Quebec.
Prime Minister John Turner was Prime Minister of Canada
without holding a seat in the House of Commons.
My question to the honourable senator is: Would the term
"political actors" include a Premier Bouchard if he were premier
without a seat in the National Assembly, or would it include a
John Turner, who was a prime minister without a seat in the
House of Commons, or, better still, a prime minister of Canada
who was a prime minister from the Senate of Canada?
Senator Forrestall: Some of them are stars.
Senator Cools: Yes, some are falling stars.
Senator Hervieux-Payette: Honourable senators, I would
have appreciated notice from the honourable senator in order to
do the proper research to determine whether that is so according
to our Constitution, especially since the whole question of
political actors is at the core of our dissenting opinion as to
whether we should be part of the process or not. Should we go
back to the Supreme Court of Canada and ask them to define
"political actor" for us? I do not like to be described as one. I am
someone representing a province and trying to do my best to
serve the interests of my province, but I am not an actor. If I had
chosen to be one, I would not be here.
I do not have the answer the honourable senator is trying to get
from me. If I can get a legal opinion from someone more
qualified than I in defining the necessary quality to qualify as a
political actor, I would be pleased to give it to the honourable
Senator Cools: I thank the honourable senator. I am quite sure
the court also meant political actresses, but we will not bother
with that particular issue.
My question is premised on the fact that so much of Bill C-20
seems to be based on the fact that senators are appointed and not
elected, and so much of the argument that we have heard here in
support of Bill C-20 keeps using the term elected representatives.
I was trying to show that, while the term used is "political
actors," there are many political actors in Canada who are not
elected. In this country, we have had at least two prime ministers
from the Senate, and it is quite foreseeable that in the future we
could have another prime minister from the Senate.
Senator Kinsella: Yes, Boudreau!
Senator Cools: As the honourable senator is attempting to
answer the question, I would ask her to remember that the answer
is not a legal one. This is a political issue — which is the entire
problem: These are political questions, not legal questions. It
does not matter how elaborate the legal dress is that you put on
them, they remain political questions.
I now move to my second question. The honourable senator
said in her speech — and I may not have got the exact words —
something to the effect that the Supreme Court confirmed the
right of Quebec or Quebecers to secede. I wonder if the
honourable senator could tell me where this right has come from.
Can the honourable senator, or anyone in the government, point
me to the set of statutory laws, the set of constitutional laws, that
ever conveyed the right of any province of Canada to secede?
Perhaps I did not make myself clear enough. The honourable
senator said the court confirmed it. She did not say they created
it, but that they confirmed that right.
Senator Hervieux-Payette: Honourable senators, I do not
have the whole text of the decision before me; as such, it would
be difficult for me to reply, because it is a long judgment. When
I referred to the Supreme Court judgment, I was more or less
referring to the overall framework addressing the question of a
future referendum, and, of course, I think it is pretty clear. There
is no specific article or even any constitutional convention in
Canada that one can separate. I think we go far beyond that. I
think we refer much more to the democratic process in a free
society, but as to whether it is confirmed by a law or by our
Constitution, I do not think we can have any reference to that.
What I wish we would have, of course, is a specific clause like
they have in France, where they forbid separation. We do not
have such a clause.
Senator Lynch-Staunton: Put it in!
Senator Hervieux-Payette: We will play by the rule of
democracy. If the people of Quebec have the will and if they are
asked the right question and there is a qualified majority, I am
sure the rest of Canada will agree to the separation, but it has to
be done within the framework of the Constitution of Canada,
with the approval of the rest of the country.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, following the statement made by Senator
Hervieux-Payette, who does not feel she is a political actor and
who represents a region, as I do and as Senator Fraser and others
do, I have a supplementary question.
My question is this: The Leader of the Government in Quebec
and the Leader of the Opposition in Quebec, on behalf of their
parties, have spoken out against this bill. The majority of the
elected members from Quebec in the House of Commons have
voted against the bill. Who are we here, appointed, to pretend
that because we represent the regions, we can substitute
ourselves for the overwhelming decision of the elected
representatives on this bill, which is almost unanimously
Senator Hervieux-Payette: Honourable senators, I come
from Quebec, as does Senator Lynch-Staunton. For the last
30 years, I have lived the agony and the ambiguity of trying to be
in favour of Canada and in favour of Quebec, and trying to be
faithful to Quebec while being proud to be Canadian. For me, it
is a very easy task. My family arrived in this country in 1670, so
I consider myself to have Canadian roots. We have, in fact,
suffered for the last three decades the denunciations of the
separatists that those who do not support the separation issue are
Honourable senators, as I stand here today, I am a democratic
person. My raison d'être in politics has been to support the fact
that, in Quebec, being in Canada is a good deal. I am proud that
my ancestors helped in creating, founding and discovering this
country, but that is not the current trend in Quebec. It is tough to
be a federalist in Quebec. My honourable friend knows that as
well as I. It is not easy to face, on a day-to-day basis, a separatist
government that has adopted another option. That is their choice.
That is why I am here. If I had been in Quebec at this moment, I
probably would have said that I support Bill C-20, but I must
admit that it is not easy to stand for Canada when one is in
Senator Lynch-Staunton: Honourable senators, I have no
difficulty in standing for Canada when I am in Quebec, nor do
most Quebecers. I have more difficulty in standing as a Tory, but
I am proud of it.
My question was, how far can we go in neglecting the
expressed sentiment of the elected representatives of the National
Assembly and that of the majority of the elected members from
Quebec in the House of Commons on Bill C-20? The
government on this side is ignoring the expressed will of the
elected representatives completely, and I find that rather
Hon. Jack Austin: That is our job.
Senator Lynch-Staunton: "That is our job," says Senator
Austin. Our job is to ignore the wishes of the elected
Senator Austin: No, it is to hear the wishes of Canadians.
Senator Lynch-Staunton: I oppose the bill, and I think it is in
the interests of Canadians to oppose the bill. Perhaps when we
get to the committee, whether a special committee or not, we will
invite representatives from every province to come and give their
views on how the House of Commons is being asked to interfere
in a decision taken by a legislative assembly.
Senator Austin: And which would have no impact
Senator Lynch-Staunton: Parliament makes many decisions
without consultation that have a tremendous impact on the
Senator Hervieux-Payette: On the point about a majority of
elected members from Quebec, we must remind ourselves that
the majority the honourable senator is talking about are separatist
members of the Bloc Québécois. These people represent a
separatist option at the federal level in a democratic society, and
they are very happy to be part of the Canadian family when they
are travelling with us abroad. We must recognize that the
majority on the government side who come from Quebec support
the government. We must recognize the facts.
Senator Lynch-Staunton: That is all we have to know.
Senator Hervieux-Payette: The honourable senator says that
we are neglecting the opinion of the Liberal opposition in
Quebec. I must remind him, although this might hurt some
feelings, that when we passed the Constitution in 1982, some
Liberals in the National Assembly did not support it. I did
support it, along with over 70 Liberal members of Parliament at
the time. I want to remind my honourable friend that my
colleagues and I in the Liberal Party support Bill C-20 because
we believe in Canada.
Hon. Michel Cogger: Honourable senators, I have a question
for the Honourable Senator Hervieux-Payette. We must conclude
that, in the unwritten preamble to that act, there is the premise
that Canada is divisible. That premise is not in the text, but if we
start from the premise that Canada is indivisible, then there is no
need for Bill C-20. Conversely, as soon as we consider Bill C-20,
we must conclude that, under certain conditions, Canada would
be divisible. Canada's ambassador to Paris, Mr. Roy, recently
said how the French found Canada to be a very democratic state,
because it was the only established country to declare itself
divisible, under certain conditions.
Honourable senators, where can we find the foundation, the
text, the convention, the legal basis for Bill C-20? Where can we
begin to build on such a bill? Where does the Canadian
government find the power to propose this legislation to the two
Senator Hervieux-Payette: Honourable senators, Senator
Cogger says there have been two referendums. It must be
remembered that in Canada we have constitutional conventions,
tradition, and legislation. I agreed that there were no provisions
in the Canadian Constitution recognizing the divisibility of the
country, but that the Government of Canada took part in two
referendums in the past. We all took part in this very painful
exercise. The Supreme Court opinion mentions this possibility of
divisibility, following these two referendums.
If the Canadian government had decided in the 1980s that it
would not under any circumstances recognize the results of the
referendum within the constitutional framework of the time,
things would, perhaps, be different. I cannot rewrite history. We
took part in two referendums and put everything we could into
protecting the interests of Quebec within Canada. I hope that I
will not repeat the exercise a third time. This bill is an insurance
policy. It is a bill that defines the frame of reference. I agree with
you that there are few countries in the world that would allow
civilized people to take a democratic decision to destroy a
country. It has taken several hundreds of years to build it in a
civilized manner and by constitutional agreement. We must not
deceive ourselves. If ever there were a clear question and a clear
result, I do not believe that the negotiations would be any easier
or that we would emerge any the better. It is an exercise in which
all Canadians would lose.
On motion of Senator Atkins, debate adjourned.
Modernization of Benefits and Obligations
Second Reading—Debate Adjourned
Hon. Lucie Pépin
moved second reading of Bill
modernize the Statutes of Canada in relation to benefits and
She said: Honourable senators, I rise today in support of
Bill C-23, to modernize the Statutes of Canada in relation to
benefits and obligations. I support this bill because it is in line
with the actions I have been taking for a number of years in
favour of equality, tolerance and respect of others.
As honourable senators are no doubt aware, Bill C-23 is
intended to recognize heterosexual and homosexual common-law
unions as having the same status in the eyes of the federal state.
Concretely, this translates into identical treatment of
common-law partners in Canada as far as the benefits and
obligations arising out of their union are concerned, whether this
is a same-sex or opposite-sex couple. The consequence of
Bill C-23 will therefore be, first, to extend to same-sex
common-law partners the advantages and obligations that
currently apply only to opposite-sex common-law partners and,
second, to extend to opposite-sex or same-sex common-law
partners certain benefits and certain obligations to which they do
not have access at the present time.
Strictly speaking, that is the entire scope of this omnibus bill.
In practice, however, Bill C-23 involves amendment of a
number of federal laws, affecting some twenty or so departments
or agencies in seven different areas, including pensions, income
tax and criminal law.
I will go into further detail, if I may, on certain of the more
significant changes. First, Bill C-23 uses the term "spouse" to
designate married partners exclusively and the new term
"common-law partner" to designate persons of the same or
opposite sex who have lived together in a common-law union for
at least one year.
I note, honourable senators, that the one-year period of
cohabitation required to entitle couples living in a common-law
situation to benefits and obligations is not new and that Bill C-23
in no way changes it.
There are some who see Bill C-23 as an attack on marriage.
This situation led to the provision of a rule of interpretation in
the bill providing that:
... the amendments made by this Act do not affect the
meaning of the word "marriage", that is, the lawful union of
one man and one woman to the exclusion of all others.
It is my opinion, honourable senators, that this motion was
unnecessary, first, because the bill has nothing to do with
marriage and, second, because the meaning of "marriage" is
already clear in law. Nevertheless, the Minister of Justice said
there was a need to reassure certain Canadians that Bill C-23
does not in any way alter the meaning of "marriage." Bill C-23 is
restricted to recognizing other forms of stable relationships based
on a commitment.
Why the law, then? It is Parliament's answer to changes in
Canadian society and to a series of decisions by courts at various
levels over the past few years in Canada, which all had the effect
of questioning the fact that social programs did not include
partners of the same sex, in other words, were limited to a
Whether some people like it or not, Canada must no longer be
a society where being lesbian or gay is a disgrace. This has been
the case, however, in the past. It was in 1992 that the World
Health Organization stopped defining "homosexuality" as a
To illustrate the distance covered since then, allow me,
honourable senators, to share with you the results of an Angus
Reid poll released in October 1998, which showed that
Canadians now accept same-sex couples. The poll revealed that a
majority of Canadians, more specifically, 67 per cent, believed
that same-sex couples living as a married couple should enjoy
the same tax or employment-related benefits as heterosexual
couples. In April 1995, this figure was 49 per cent. Of course, the
support of Canadians for this proposal was not uniform. Women
were more in favour than men of recognizing same-sex couples,
and the younger and more educated were more in favour of
according this recognition. In short, a majority of Canadians feel
that same-sex partners should enjoy the same benefits and
obligations as accorded by the federal government to partners of
the opposite sex, married or not.
I would even bet that the adoption of Bill C-23 will help
reduce the percentage of Canadians who are still opposed to the
recognition of same-sex couples, since the state is showing
tolerance and respect and is taking measures to achieve equality.
By passing Bill C-23, Parliament sends the message that
homosexuals are no longer second-class citizens but full-fledged
members of the Canadian political community.
Bill C-23 is also in response to a number of court rulings. With
your permission, honourable senators, I will mention the
decisions that have paved the way toward the recognition of
same-sex couples, and I will draw some lessons from them.
The Quebec government was the first one, in 1977, to prohibit
any discrimination based on sexual orientation. Two years later,
the Canadian Human Rights Commission recommended that the
Canadian Human Rights Act be amended to include "sexual
orientation" as a prohibited ground of discrimination. I remind
you that the Canadian Charter of Rights and Freedoms was
adopted in 1982, but its section 15(1) did not include sexual
orientation as a prohibited ground of discrimination. In 1985, the
idea of considering sexual orientation as a prohibited ground of
discrimination received the support of the Parliamentary
Subcommittee on Equality Rights, through its famous report
entitled "Equality for All." In 1992, in the Haig case, the Ontario
Court of Appeal ruled that the Canadian Human Rights Act must
be interpreted as prohibiting discrimination based on sexual
orientation. Four years later, in 1996, the Canadian Human
Rights Act was finally amended accordingly and, the following
year, the Canadian Human Rights Tribunal issued its first ruling
in favour of granting benefits to the spouses of homosexual
The 1990s saw many outcomes favourable to the recognition
of same-sex couples. In 1992, the armed forces lifted the
restrictions on enrolment and promotion based on sexual
orientation. In 1995, the Supreme Court of Canada handed down
its first decision under section 15 of the Charter with respect to
sexual orientation and the awarding of benefits to same-sex
spouses — the Egan decision. In a unanimous decision, the court
ruled that sexual orientation constituted a prohibited ground of
discrimination under section 15 of the Charter, just like sex or
age. Several decisions favourable to same-sex couples at the
federal and provincial levels ensued. With respect to the granting
of benefits to same-sex spouses, five of the nine judges ruled that
the definition of "spouse" in the federal Old Age Security Act
contravened section 15 of the Charter but that this violation was
justified under section 1 of the Charter.
In 1998, two decisions overturned this preliminary
interpretation of the Charter. In Vriend v. Alberta, the Supreme
Court held that the deliberate omission of sexual orientation in
Alberta's Individual Rights Protection Act contravened
section 15 of the Charter and that this departure was not justified
under section 1. The Court of Appeal of Ontario handed down a
similar ruling. In Rosenberg v. Canada, it ruled that the fact of
excluding same-sex spouses from the federal Income Tax Act
was not justified under section 1 of the Charter. These two
rulings affirm that section 1 of the Charter cannot justify
discrimination on the grounds of sexual orientation.
In 1999, in M. v. H., the Supreme Court opened the door to
claiming support payments following the breakdown of a
relationship between persons of the same sex.
Indeed, the court found that Part III of the Family Law Act of
Ontario contravened section 15 and was not justified under
section 1 because it only referred to opposite-sex couples. This
decision states that recognition does not mean benefits only, but
also obligations, which a number of speakers in this debate tend
Finally, I will touch on the enactment of Bill C-78, regarding
survivor benefits. This is the first federal act explicitly granting
benefits to same-sex couples. For the first time ever, Parliament
used its legislative authority to grant full citizenship status to
some homosexuals by making them eligible for social benefits.
Honourable senators, it is in this context that Bill C-23 must be
seen. It is now clear that the Charter offers legal guarantees to
homosexuals and that the recognition of same-sex couples does
not imply only benefits, but also obligations. This principle must
now be put into practice. This is precisely the point of Bill C-23,
to bring federal legislation in line with the Charter of Rights and
In the other place and at the Standing Committee on Justice
and Human Rights, many spoke against passage of Bill C-23.
Many objected on moral grounds, but several raised legal and
societal issues. Allow me to review some of the arguments put
forward against the recognition of same-sex couples in Canada.
One argument that was often heard against Bill C-23 was that
it would harm the institution of marriage and the family. Both
institutions are supposed to be the pillars of Canadian society and
ensure its stability. To attack them could only lead to social
Not being a visionary, I will not voice any opinion on the
apocalyptic interpretations of what will happen the day after
Bill C-23 is passed. In reality, I simply do not believe that this
bill could lead to such chaos, simply because there is no basis in
its contents to justify that. The bill in question does not in any
way modify the definition of marriage, that is, the lawful union
of one man and one woman to the exclusion of all others.
Bill C-23 merely recognizes other forms of stable relationships
based on commitment.
In this connection, honourable senators, I would like to quote
to you from the testimony given by Professor Martha Bailey, a
family law specialist from Queen's University, on March 2, when
she gave her opinion on Bill C-23 before the Standing
Committee on Justice and Human Rights. At the time, she stated
...all Bill C-23 does is extend certain benefits and
obligations traditionally associated with marriage to
same-sex couples. It does not affect marriage.
Nothing could be clearer than that.
Another argument that has been put forward in connection
with Bill C-23 is that it constitutes an attack on the family. By
extending to same-sex couples the advantages and obligations
traditionally recognized for married couples, Bill C-23
supposedly would be sounding a death knell on marriage and the
family. What advantage would there be for couples to marry and
start a family if they could enjoy the same status and advantages
without doing so? This is, if I may say so, an extremely
narrow-minded view of marriage. Let us be serious about this.
Who, except someone with very utilitarian views, decides to
marry in order to have access to these advantages? Is there not
something more profound to marriage and the desire to start a
Bill C-23 is resolutely realistic, since it acknowledges that
Canadian society is no longer made up of only heterosexual
unions — indeed, numerous studies show that there have been
same-sex couples in Canada for a long time. By passing
Bill C-23, Parliament will merely be recognizing the existence in
Canada of unions other than those of heterosexual couples.
Parliament will no longer bury its head in the sand, and will be
putting an end to a long-standing practice of social exclusion.
On this, honourable senators, allow me to quote from a
passage in Rosenberg:
There is less to fear in recognizing conjugal diversity than
in tolerating exclusionary prejudice.
By passing Bill C-23, Parliament will resolutely prove its
Let us move now from marriage and the family to the field of
law. Justice is a pillar of a state with rule of law where the
government is governed by law in order to protect the public
from the government itself. Democracy is not domination of the
minority by the majority, nor the reverse. It is, rather, a search for
compromise and negotiated solution based on a desirable societal
balance. There can be no democracy without political pluralism,
nor political pluralism without rule of law and no rule of law
without legal interpretation. This is the fundamental role of the
courts: the formulation of a consensus leading to the attainment
of a desirable societal balance. In other words, honourable
senators, those who balk at having the Supreme Court interpret
the Charter are purely and simply advocating a form of rule in
which the government arbitrarily sets the laws.
Some have held that, with Bill C-23, the government would be
giving in to judicial activism; the courts would replace
Parliament, with the supremacy of the court replacing the
supremacy of Parliament. Were this the case, a bill recognizing
same-sex couples would have been submitted to us long before
2000, with the initial decisions on the matter. Far from giving in
to judicial activism, the federal government, on the contrary, took
the time to examine the situation and to propose legislation
intended to put an end to a flagrant injustice and, in so doing, it
was responsible. With Bill C-23, the government is providing a
framework that is responsible, equitable and legally solid,
providing room for the latest court decisions on the eligibility of
same-sex couples for the benefits and obligations of opposite-sex
In fact, far from giving in to judicial activism, the federal
government might be accused of lagging behind a number of
provinces that have already amended their statutes so that they
no longer discriminate against same-sex couples. Moreover, in
the absence of legislation, the courts will continue to hear cases
individually, maintaining confusion and constant and costly
litigation. It is precisely for these reasons that the government
must assume the responsibility of proceeding with Bill C-23.
Honourable senators, while I am asking you to vote in favour
of the bill to modernize the Statutes of Canada in relation to
benefits and obligations, I am well aware of the limitations of the
proposed measure and I know that Bill C-23 will not solve all the
problems experienced by homosexuals in our society.
Nevertheless, Bill C-23 can help alleviate some of these
Bill C-23 cannot eliminate biases against homosexuals, and
particularly the abuse to which they are subjected. The group
EGALE, which is a national leader in the protection and
promotion of the rights of homosexuals and which testified
before the Standing Committee on Justice and Human Rights,
noted with sadness that physical violence against homosexuals
was on the rise again. This is not to mention the psychological
abuse against homosexuals — the jokes and so on — which
pushes some of them to commit suicide. Indeed, an article
published in Le Devoir on March 17 stated that:
...the fear of being identified as a homosexual and then be
ostracized for that reason is a major cause of depression and
suicidal impulses among young people.
This is true at least in the case of young men, who were the
target group in the study referred to in this article. Bill C-23 will
not solve the tragic issue of suicide, but sending the message that
any individual, whether homosexual or heterosexual, has a right
to a full life might help reduce the number of suicides.
Notwithstanding these criticisms, honourable senators, I urge
you to vote in favour of the bill to modernize the Statutes of
Canada in relation to benefits and obligations. As its title
indicates, Bill C-23 seeks to modernize, that is to update, the act
and to bring it more in line with the reality. The reality is that,
today, equality is a fundamental value of the Canadian political
community, as evidenced by our charter. The reality is also that,
in the Canadian society, there are opposite sex couples and
same-sex couples. The law must reflect today's reality.
With Bill C-23, Canada follows the example of several
countries which, in recent years, have recognized same-sex
couples in one way or another. As the very advanced nordic
countries have already done, Canada is now ready to recognize
the diversity of lifestyles within its population. Incidentally, these
countries are also among the most advanced in terms of the
political representation of women, another issue which you all
know is very important to me.
In passing Bill C-23, Canada will honour its international
commitments with regard to civil and political rights. The federal
government will also cease to be lagging behind several
municipal governments and several large Canadian companies
that have already given full recognition to those of their
employees who are engaged in a same-sex relationship. Bill C-23
is a logical conclusion. It is the product of a constitutional state,
a state that submits its decision to the wisdom of law.
Above all, Bill C-23 is a matter of simple justice. Today, a
substantial minority, or 40.7 per cent, of married or common-law
couples in Canada do not have children. However, even with no
children and contrary to same-sex couples, several of whom do
have children, heterosexual couples have the advantage of having
their union recognized by the state. It is clearly unfair to
same-sex couples, at least in a constitutional state where equality
is an exemplary value and where its opposite, discrimination,
cannot be justified in a free and democratic society.
In closing, honourable senators, we must pass Bill C-23
because it shows an openness to the pluralism of Canadian
society and it promotes tolerance to diversity, mutual respect,
justice and equality. There is no doubt that these are the
components of a modern political community.
Hon. Fernand Robichaud: I congratulate Senator Pépin on
her speech. I think this bill is certainly justified, but I notice an
omission. We know, and I am aware of some cases, that other
people live together, like a brother and a sister, two brothers or
two sisters. They sometimes live together for a long time and are
able to have a decent living because they live together. When one
of them has to leave, the other finds himself or herself in a
miserable condition. Should we not include these people in the
definition of "common-law partnership"? They live just like a
Senator Pépin: You are right when you say that when several
people live together in a family, there is a relationship of
economic dependency. However, after examining the obligations
and the scope of such a bill, the government has concluded that
this situation should be dealt with in a separate bill.
Since these people do not live as couples, it would be better to
keep both types of situations separate instead of joining them in a
single bill, because they are different.
Senator Robichaud: You say it is completely different. I do
not really see how because there is certainly a dependency
relationship between these two people living together. If you tell
me that the government intends to go in this direction later and to
look at this, I hope it will do so fairly quickly because I think that
this situation should not continue. It is not fair to those in
Senator Pépin: Honourable senators, one does not live with
someone just to be dependent either. These are two completely
different issues. I am in favour of your request and agree that we
should consider the problem these people are facing. You do not
live like a married couple because you are dependant on each
other. I am prepared to pass on your requests to the government.
At this stage, this addition would add confusion to the bill.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I am curious about whether the public
policy objective of this bill is to have the state facilitate people
who are dependent on another. If that dependency is responded to
by the fruit of the labour of the one who is at work, the state will
not have carriage of the social needs of the dependent person.
What exactly is the social policy objective of this bill? Is it meant
to maintain the dependency relationship between a citizen and
another citizen and therefore not have that citizen dependent
upon the state through some other social program?
Senator Pépin: I do not think the bill's purpose is to recognize
dependency relationships. The government recognizes that
heterosexual people are capable of living together and I think
that that is not necessarily a dependency relationship. However, it
does not recognize same-sex couples who are fond of one
another and wish to live together.
I think there is a slight difference. I may be wrong, but when
people in the same family live together, with one responsible for
the other, the responsibility is often different. For instance, I am
responsible for my mother; there is a relationship of affection,
but I am still responsible for my mother. However, if you are a
couple, heterosexual or homosexual, I believe that the two
relationships are similar and should be recognized. There is no
dependency or financial relationship. If some honourable
senators have better arguments, they can answer your question.
Hon. Anne C. Cools: Honourable senators, Senator Pépin just
responded to a particular question on the issue of dependency.
The chamber should be informed that Minister Anne McLellan
appeared before the Standing Senate Committee on Legal and
Constitutional Affairs on September 23, 1998, and said the
opposite of what Senator Pépin has said.
Minister Anne McLellan appeared before the Legal and
Constitutional Affairs Committee on Bill C-37, which was to
amend the Judges Act. In response to a question from Senator
Bryden, Minister McLellan put the following on the record.
I think it should form part of the record here today. She said:
I will be very candid: This government's expressed
approach to this is that we will deal with every case on a
case-by-case basis. The court has said that it will take a
similar approach. However, I would remind
honourable senators — and I said this in response to Senator
Bryden — that we are doing policy work that potentially
speaks to a fundamental change to whom benefits might be
extended within Canadian society, at least within the federal
jurisdiction, and that we do not want to restrict ourselves to
a discussion simply of same sex or opposite sex, but to
consider a more legitimate question in Canadian society
which is one of true dependency. When that work is done, as
I have already indicated, we may return to both you and the
House of Commons with an omnibus piece of legislation
which will deal with the extension of benefits and
entitlements of one sort or another on the basis of
dependency. That work is well on its way, and my
colleagues and I will be talking about it in detail starting
This is a very important question. At what point in time did the
minister abandon and retreat from her stated intention of
extending benefits to all relationships of economic dependency
and move to the very questionable area of extending benefits
based on sexuality? That is very unusual. It is a question with
which the committee must deal.
I have two questions to ask of the Honourable Senator Pépin.
First, what is a conjugal relationship as defined in this particular
bill? Second, how will the existence of a conjugal relationship be
Hon. Serge Joyal: Honourable senators, I wish to follow up
on the question raised by Senator Cools about conjugal
relationships. The Supreme Court judgment in the case referred
to by Senator Pépin, and in particular Justice Cory, has defined
clearly what is a conjugal relationship. It is not based on sex. Sex
is one element. However, it is not an exclusive element of a
conjugal relationship. In fact, the court has said that in many
conjugal relationships there is no element of sexuality involved.
That is because people can enter into marriage or common-law
situations and have no children.
The morals of today allow people to have abortions, to resort
to contraceptives and to decide on a common ground not to have
children. It is the right of people in a couple to choose. Thus, the
element of sexuality is not an exclusive element of any conjugal
relationship on that basis. Justice Cory established that very
clearly when he established the five elements of a conjugal
relationship. As Senators Pépin and Cools have mentioned, we
will have ample opportunity in committee to debate those issues.
There is a fundamental element in what Senator Pépin has
said. Bill C-23 is based on the judgment and interpretation of
section 15 of the Charter. Section 15 of the Charter in relation to
common-law couples was not adopted on the basis of children
versus parents, uncles versus nephews, and so on. The Supreme
Court interpretation of section 15 is that people who live in a
common-law situation are entitled to the same benefits, be they
heterosexual or same-sex couples. That is essentially what the
court has said. The court has not pronounced on the rights of
parents or relatives on the basis of the interpretation of
section 15. It has not established such a right. However, the
court has established such a right for people living in a
A mother and nephew, for example, are not in a common-law
situation. They might have dependency responsibilities one to the
other. They might benefit from some fiscal recognition by the
state, be it at the provincial or the federal level, for reasons
related to social policy. In other words, governments may support
people helping one another when they became older,
handicapped, or when they need the support of a parent to
address the needs of living. That is a totally different issue. It is
not a legal issue confirmed by the Supreme Court's interpretation
of section 15.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I rise on a point of order.
Senator Cools: Honourable senators, if Senator Joyal is
asking a question, I should like to respond. I welcome what the
honourable senator has said. I want to ensure that we will have
an opportunity to debate his remarks.
Senator Pépin has just said that she is not answering questions.
Thus, I welcome the comments of Senator Joyal. However, we
need an opportunity to debate his points.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I do not know if Senator Pépin's
45 minutes have expired, but I should like to comment on the
point of order.
Any senator, including Senator Pépin, is entitled not to answer
a question, if that is their choice. They do this individually,
although it seems arbitrary to answer one senator's question yet
not answer another senator's question. I do not think it is
inappropriate for Senator Pépin not to answer a question yet
accept another senator's question. It is in order to make a
comment or to ask a question. However, I think there is a time
frame in which a question or a comment is to be put.
I submit that we are getting close to the time limit of a
comment. Thus, on the matter of the point of order, I would put it
that a senator can refuse to answer a question or answer a
question on a senator-to-senator basis.
I also submit that we should do everything we can to
encourage debate. However, I remind honourable senators in
speaking to this point of order that I believe the rules anticipate
brevity in putting a question or in making a comment.
On motion of Senator Robertson, debate adjourned.
Heritage Lighthouses Protection Bill
Second Reading—Debate Adjourned
Hon. J. Michael Forrestall
moved second reading of
Bill S-21, to protect heritage lighthouses.
He said: Honourable senators, this matter is, perhaps, a little
less controversial. However, to some it is of equal interest, but
not nearly so commanding of one's time and mental capacity.
Honourable senators, it is my pleasure today to speak to
Bill S-21 and, in so doing, to express my sincerest appreciation
to Mr. Joe Varner and the very capable assistants of
Mr. Mark Audcent, Law Clerk of the Senate, for the work they
have done in bringing together a non-controversial piece of
legislation. I want particularly to express appreciation to
This is neither a partisan nor a money issue. I ask those
senators familiar with Nova Scotia and our beautiful tourist trails
to imagine the Lighthouse Trail without one lighthouse or its
outlying structures. Try to envision Peggy's Cove without a
lighthouse. Every day that we sit idle, coastal communities
throughout Canada, whether on the beautiful East Coast, along
the scenic St. Lawrence, on Lake Winnipeg, or on the majestic
shores of our Pacific northwest, we face the loss of historic
lighthouses — lighthouses which have been the source of
salvation to sailors for hundreds of years. They have served as
the centres for many coastal communities.
Beautiful pictures of lighthouses from around the world adorn
many a prominent wall, because they are symbols of man's
conquest of the high seas and the oceans. In the past, they
captured people's hearts, for they were the first sight of land to
be seen upon returning home. Lighthouse portraits are among the
most popular of wall hangings. There is no question of their
place in the human heart, their simplistic beauty set against the
rugged, dark seas. You need not be from the shores of the
Atlantic, the Pacific or the Arctic to be attracted to lighthouses.
The Lighthouse Preservation Society based in Nova Scotia,
with representatives from across Canada, has done
extraordinarily good work in examining the plight of Canada's
lighthouses and has attempted to save them from destruction.
There are other groups on the West Coast that have also
attempted to preserve this valuable part of Canadian maritime
history. Our colleague, the co-sponsor of this bill, the Honourable
Senator Pat Carney, has worked tirelessly with lightkeepers on
the West Coast to protect stations and, indeed, the keepers
themselves. I cannot tell you how many times I followed Senator
Carney up spiralling staircases to dizzying heights to help her in
her cause, a cause that brings credit to the Senate and tells
isolated coastal communities that the government cares.
Today, there are over 500 lighthouses left in Canada. Only
19 of these have full heritage protection. Another 101 have
partial protection and recognition as heritage sites. The rest exist
in no man's land at this time.
What does heritage protection status mean in real terms?
I bring your attention back to Bill C-62, the Heritage Railway
Stations Protection Act of 1988, upon which this bill is modelled.
Why, if heritage sites are so special, was another act required to
protect the heritage railway stations found in most Canadian
communities? The answer, sadly, is that even with heritage
designation these historic railway stations, some dating to
Confederation, could be sold, transferred, altered, or destroyed
with little recourse to the public. The Heritage Railway Stations
Protection Act set up a process of public consultations prior to
any action being taken with regard to the invaluable heritage
sites and imposed stiff penalties in the event that precipitous
action was taken that damaged historical railway stations. It has
been determined that Canada's 19 heritage lighthouses and 101
partially recognized sites are in the same vulnerable position as
Canada's historic train stations were prior to the passage of
This is the very purpose of Bill S-21, an act to protect heritage
lighthouses. Clause 3 of the bill states:
The purpose of this Act is to facilitate the designation and
preservation of heritage lighthouses as part of Canada's
culture and history and to protect them from being altered or
disposed of without public consultation.
The bill defines "heritage lighthouse" as:
...any lighthouse, together with all buildings and other
works belonging thereto and in connection therewith,
designated by the Minister on the recommendation of the
Board as a heritage lighthouse.
It defines "alter" as:
...to change in any manner, and includes to restore or
renovate, but does not include routine maintenance and
"Board" means the Historic Sites and Monuments Board of
The minister responsible for this act shall be the Minister of
Clause 4 states:
This Act applies to all lighthouses within the legislative
authority of the Parliament of Canada, whether or not they
are used as navigational aids.
Clause 5 states:
The Minister may, on the recommendation of the Board,
designate, for the purposes of this Act, lighthouses as
Most important, honourable senators, clause 6 (1) states:
No heritage lighthouse shall be removed, destroyed,
altered, sold, assigned, transferred or otherwise disposed of,
unless authorized by the Governor in Council.
For the purpose of safety, clause 6(2) reads:
Subsection (1) does not apply in respect of the alteration
of a heritage lighthouse where the alteration is made in
response to an emergency.
Clause 7 states:
Where it is intended to remove, destroy, alter, sell, assign,
transfer or otherwise dispose of a heritage lighthouse, an
application for authorization to do so shall be filed with the
Minister, in accordance with the regulations, after public
notice is given in the prescribed manner of the intention to
file the application.
Thus, a regulatory mechanism is set in place to protect these
invaluable heritage sites.
Clauses 8 through 10 spell out the terms for public hearings
and empowers the minister and the Governor in Council to act in
the public interest.
Honourable senators, this means that before a heritage
lighthouse is pulled over or, in the unlikely event, sold to
McDonald's or Burger King for advertising purposes, the public
will be consulted. It also sets up a framework for the transfer of
some of these heritage lighthouses to private hands or coastal
community groups while maintaining the Government of
Canada's ability and right to protect and preserve Canadian
In the end, according to clause 7, the minister will make a
recommendation to the Governor in Council based on the report
of the board. Finally, clause 9(1) states:
The Governor in Council may, on the recommendation of
the Minister and on such terms and conditions as the
Governor in Council considers appropriate, authorize the
removal, destruction, alteration, sale, assignment, transfer or
other disposal of a heritage lighthouse.
The key, though, is that the Canadian public will have been
In conclusion, honourable senators, these are not partisan
issues. There currently exists a so-called "doomsday list" of
lighthouses, some of which are heritage lighthouses, that are
about to be demolished without even a thought of public
consultation. There is a legislative void to guide the work of our
tireless public servants. This is simply not right.
What would Cape Spear, Newfoundland be like 20 years from
now if it were decided to sell the historic lighthouse there to
private interests, or simply to pull it down? What of the
Yarmouth lighthouse that was due to go to the community, the
fate of which now hangs in the balance due to real environmental
concerns? What of the few real lighthouses left on the
St. Lawrence, not the small, modern two- or three-metre tall
posts with a light bulb at the top? I am talking about real
lighthouses. What of the historic lighthouse on Georges Island in
Halifax Harbour along with several historic structures now
virtually ready for collapse?
It is for the preservation of Canadian culture that we need the
Heritage Lighthouse Protection Act.
Finally, Bill S-21 will empower citizens and communities to
take an active part, along with government, in preserving our
heritage for future generations. It is for this purpose that I seek
On motion of Senator Hays, for Senator Callbeck,
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 Kinsella).
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I have a few words on Bill S-9.
We all understand the motivation that one delays the
presentation of this bill as we have delved into it in the past. As
honourable senators know, it is really trying to come to grips
with the problem of false accusations in cases of custody and
I remind honourable senators of the work of the Special Joint
Committee on Child Custody and Access. In the report of that
joint committee, we were told that the committee heard a great
deal of testimony from parents involved in custody and access
disputes, who felt that they were being undermined by false
accusations of physical or sexual abuse by their spouse or former
That joint committee heard many examples of parents being
unable to see their children for years while these allegations were
under investigation. Tragically, at the end of the day, the
allegations were proven to be false, and the human suffering that
flowed from those accusations and the injustice of it all was
underscored by the committee. In the committee report of
December 1988, there was this recommendation:
This Committee recommends that, to deal with intentional
false accusations of abuse or neglect, the federal
government assess the adequacy of the Criminal Code in
dealing with false statements in family law matters and
develop policies to promote action on clear cases of
mischief, obstruction of justice or perjury.
The government's response to that report was to announce a
further three-year study. We do not have a government proposal
or even an indication before Parliament as to how it wishes to
deal with this problem of false accusations. I believe it is quite
appropriate that the Senate provide a tremendous legislative and
policy development service by bringing forward S bills in this
house. This one was before us before and had gone to a
committee. I should think that, if it was to be referred to,
perhaps, the Legal Committee, there would be a canvassing of
views, a putting together of the up-to-date data. Some time has
lapsed since the joint committee looked at this issue.
The Senate provides a policy development service when it
initiates such bills, sends them to committee and invites this kind
of study. Therefore, we would support that course of action.
On motion of Senator Hays, debate adjourned.
Changing Mandate of the North Atlantic
Report of Foreign Affairs Committee on Study—Debate
The Senate proceeded to consideration of the seventh
report of the Standing Senate Committee on Foreign Affairs
entitled: "The New NATO and the Evolution of
Peacekeeping: Implications for Canada", tabled in the
Senate on April 5, 2000.—(Honourable Senator Stollery
Hon. Peter A. Stollery moved the adoption of the report.
He said: Honourable senators, I should like to take a few
minutes to speak on the seventh report of the Standing Senate
Committee on Foreign Affairs.
As honourable senators know, the Foreign Affairs Committee
spent a great deal of time holding hearings and investigating the
Before I say anything, I would like to thank my predecessor,
former senator Stewart, under whose chairmanship much of the
work of our report, which was tabled in the Senate a few weeks
ago, was done. He made a great contribution to this report on the
Members of the Foreign Affairs Committee are very proud of
this nearly 90-page report. It covers a great many subjects. The
Foreign Affairs Committee has essentially examined economic
matters for many years, not defence matters. The members of the
committee did not come to this subject with strong views. We
were not anti- or pro-NATO. Our report is the result of
investigations and hearings, not one that was already in our
minds when we started. That is very important, because there are
anti-NATO people and pro-NATO people. The Foreign Affairs
Committee of the Senate was very independent.
We questioned a broad range of witnesses in Ottawa, London,
Paris, Bonn, Brussels and Mons, Washington, and at the United
Nations in New York.
For the record, the project was an exhausting one; it really
was. During our four or five days in Brussels, we included
meetings at the European Union, which resulted in our report
entitled "Europe Revisited." Our former chairman, my
predecessor, former senator Stewart, tabled that report in the
Senate before he retired in November. In these investigations, we
did two reports at the same time, although it must be said that our
efforts were concentrated on the new NATO and the evolution of
Honourable senators, Senator Lynch-Staunton played a very
important role in the genesis of this study. I must say, however,
that shape of the study changed as it went along. It was a very
strange experience. Our chairman, along with many of the
members, perhaps all of them, became more interested as we
went along. Remember, honourable senators, our study began
about a year ago, just as events in Kosovo were unfolding.
Although we did not set out to study Kosovo, we could not
ignore the fact that NATO, the subject of our study, had just
become involved in, I think, its first non-NATO campaign,
because Kosovo, as we have noted very clearly in our report, was
what is known as an out-of-area operation or, to those who study
NATO matters, a non-Article 5 intervention.
This is very important, because anyone who takes the time —
and it does not take very much time — to read the 16 articles of
the original NATO treaty will know that the treaty is a short,
clear, and simple treaty. One does not have to be a lawyer or an
expert in drafting to understand the NATO treaty. Article 5 is the
guts of the treaty. It explains that it is a mutual self-defence treaty
and states that, if any of the members is attacked, the others have
to go to their defence.
NATO got its start in 1949, at the beginning of the Cold War.
The problem for NATO became that the enemy left; the Soviet
Union was no longer there. The Soviet Union collapsed, and the
question became: What does NATO do? That is what the
committee studied. What does NATO do? NATO, itself, in fact,
has been wondering what it does. It changed its original terms of
reference in November 1991 and again last April. While the
original NATO treaty is very simple, a reading of the NATO
terms of reference after the fall of the Berlin Wall is evidence of
a much more vague treaty. That resulted, last year, in NATO
involving itself in its first non-Article 5 intervention. That is the
term that is used.
Of course, members of the committee asked: What is the legal
basis for a non-Article 5 intervention? Speaking for myself as the
new chairman, I found the replies unsatisfactory. What was the
legal basis for the Kosovo intervention? NATO is a self-defence
organization, authorized under the Charter of the United Nations,
but when they attempted to establish a legal basis for the Kosovo
intervention, it became less than clear.
In our report, we deal with the old NATO, the one before 1990.
That is the NATO we all understood during the Cold War. Then
we talk about the new NATO — the moving target, as I describe
it. The terms of reference have been changed twice, and
undoubtedly will be changed again, because NATO is looking for
In 1996, I believe, the Foreign Affairs Committee undertook
its first European study, and we ended up in Brussels. Naturally,
when we were in Brussels, we went to NATO. We got the NATO
briefing that everyone always gets, and the question could not
escape us: What do they do now? The Soviet Union does not
exist any longer, so just what does the organization do? This, of
course, is a question that a lot of people are asking.
Honourable senators, in our report, we made
16 recommendations, all of them extremely good.
We questioned the legal basis for these interventions. We do
not think Canada should be involved in interventions that are not
authorized by the United Nations, or else there should be some
other very clear and good reason for our being involved.
We would like to know more about the definition of "human
security." We think that we are in favour of human security but
we would like to know what the internationally accepted
That is why, in Recommendation No. 14, we recommend that
the Main Estimates of the Department of Foreign Affairs and
International Trade and the Department of National Defence be
referred to the Standing Senate Committee on Foreign Affairs for
Let me remind all honourable senators that this is a unanimous
report. Both parties in the Senate support this report. We are very
interested in having some meetings with the Department of
Foreign Affairs and the Department of National Defence so that
some of the questions members of the committee have can be
answered as we look at the estimates of the two departments. We
think that would be an important reform of the system. If there is
any single point that leaps out at one, it is that there does not
seem to be a great deal of parliamentary input into these
We have also noted very strongly that Parliament should be
more involved in decisions that involve sending Canadian
soldiers to conflict situations, peacemaking and peacekeeping
missions. We suggest that the government clearly spell out
Canada's interests and the scope of Canadian involvement. In
Recommendation No. 12, we say that Parliament should have a
direct role in the review of important international agreements,
while Recommendation No. 13 states:
That both houses of Parliament have the opportunity to
debate and approve at the earliest possible moment
Canadian participation in any military intervention or
external conflict situation, including peacekeeping and
peacemaking missions, with the Government clearly
spelling out Canada's interest in the situation and the scope
of Canadian involvement.
These are good recommendations. They are very important
In the changing international environment, NATO is looking
for a role that is unclear. We discussed the European Strategic
Defence Identity in our report. Will the Europeans, because of
their dependence on the United States in NATO, develop their
own defence arrangements, in particular, regarding heavy lift?
Presently, they are unable to get the equipment there. As well,
what about satellite communications and a common procurement
It is fair to say that the members of the committee were more
skeptical of the European strategic defence initiative at the
beginning of our hearings than we were at the end. At the end,
many of us thought, "Where does this all leave Canada?" That is
the question: Where does it leave us? What if the European
Union, the world's most powerful trading block, develops its
own army — and they have talked about it — as well as a
common foreign policy and a common defence policy? If they go
ahead, as they say they will and as some people say they should,
we do not know where that leaves the Americans. Furthermore,
where does it leave Canada? That is the question our committee
wants to put to Canadians and to the Canadian government.
Honourable senators, we are a founding member of NATO, but
what if NATO leaves us, which is the phrase we use in our
The Hon. the Speaker pro tempore: Honourable senators, the
speaking time for the Honourable Senator Stollery has expired. Is
he asking for leave to continue?
Senator Stollery: May I have leave to continue, honourable
The Hon. the Speaker pro tempore: Is leave granted,
Hon. Senators: Agreed.
Senator Stollery: Where does this leave us, honourable
senators? The Foreign Affairs Committee of the Senate will
certainly be following this issue and asking these questions.
I will end by thanking my colleagues from the Foreign Affairs
Committee, who put in an enormous amount of time working on
this report. We are all proud of our work and of the result of our
work. I want to thank them for taking so much of their time
contributing to this report.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, would Senator Stollery permit a brief
Senator Stollery: Yes.
Senator Hays: Senator Stollery referred to Recommendation
No. 13 as a parliamentary role — that is, when the executive
takes a decision such as the stretch that they took using NATO to
intervene in Kosovo. I remember the event because I was there.
It caused a controversy. It came to Parliament's attention. What
more would he envisage Parliament doing and to what extent
does he see the executive being tied to an executive decision
before action is taken?
My second question concerns the National Missile Defence
Initiative that is being proposed by the United States. Senator
Forrestall gave a speech on this subject and it was raised in
Question Period as well. Regarding the post-Cold War role of
NATO and the possible divorce between Europe and North
America in terms of the current cohabitation through NATO,
what should our position be on the National Missile Defence
Initiative of the United States and our participation in it?
Senator Stollery: Honourable senators, I cannot respond to
the question concerning that defence system because the
committee did not discuss it. It was not in our mandate. The
information in our report is based on the evidence we collected.
We did not put anything in the report that we did not hear a lot of
evidence about. I cannot comment about the missile defence
system. It may well be part of the evolving NATO. That is to say,
it may well be that the Americans will defending themselves
rather than NATO. I do not know.
As to the senator's first question about Parliament, we have
been very careful not to bind the government. We understand
perfectly well that the executive in our parliamentary system
makes decisions. We have been very careful not to impede the
power of executive decision. We discuss this issue in the report
and did a thorough job on that subject. We heard from an
excellent legal advisor.
Chapter VIII of the report is entitled "Parliament and Canada's
External Security Commitments." We state that the first role of
Parliament is to examine the financing of these operations.
However, we do not believe that the examination of the financing
has been particularly thorough. For example, from where did the
money come to pay for Kosovo? In our system of government,
when the minister or the departmental officials go before a
committee of the House of Commons, they are asked questions
about how the money was spent. It has been said that this is not
being done very effectively. We have allotted an entire chapter to
Over the years, Parliament has been consulted less and less on
matters of foreign involvement. It has been the opposite in other
countries. Even in 1939, Prime Minister King spoke to the House
of Commons. In Canada, there has been a lessening of
parliamentary consultation. We think that should be ended, but
not to the degree that the government cannot act. We are not
saying that. I think that answers Senator Hays' question.
Hon. Roch Bolduc: Honourable senators, I should like to
point out that Senator Lynch-Staunton was particularly active in
the committee. He made an outstanding contribution, and I
should not forget the Deputy Chair of the committee, Senator
Andreychuk, who already has a long experience in international
Honourable senators, when faced with the threat of the Soviet
Union after World War II, it became obvious to Americans and
Europeans that they had to create a strategic defence alliance. It
was for this purpose that NATO came into existence. It was for
this reason that West Germany became bound to Western Europe.
This is what happened and it was a success in that peace was
maintained without any major armed conflict.
After the fall of the Berlin Wall, the Soviet threat faded, but
the transatlantic link remained an essential insurance policy for
world peace, as it was not known what would become of Russia.
As for trading nations such as Canada, world peace was an
essential condition to our prosperity. The same was true of the
United States-Japan defence alliance, in light of the uncertainty
surrounding China's future. Together with the Americans,
Canada also joined NORAD, to provide for the joint defence of
Apart from these geo-political uncertainties, NATO has
focussed over the past decade on other less global but,
nevertheless real threats to what foreign affairs has called
"human security" — that is to say, the security of civilians as
opposed to that of the alliance states, which, more often than not,
is threatened by conflicts such as inter-racial issues, terrorist acts,
and so on.
These types of conflicts alter NATO's activities and add a new
dimension to its international role. This was how we came to
develop the concept of peacemaking as opposed to the
peacekeeping activities of our armed forces, activities that have
long been under way in the context of the United Nations.
The Minister of Foreign Affairs has spoken out several times
in recent years to explain and justify this type of intervention.
Among other things, I am thinking of the minister's speeches at
Middlebury College, last February, in Calgary, in March, and his
recent address to the Security Council.
We are far from being on the verge of nuclear war, even
though certain Middle Eastern states and North Korea are still
special cases. We have not forgotten the tension between India
and Pakistan, Iran and Iraq, and other countries. We are thinking
mainly of the delicate situation in the Balkans and tribal conflicts
in Africa, where Europe maintains an interest.
The concept of peacemaking is still developing, but the
remarks by the UN Secretary General and Mr. Axworthy reveal
the varied nature of the causes of peacemaking efforts and of the
security activities to which they are likely to lead. This situation
is thus likely to alter the nature of our armed forces. Authorities
refer at times to armed intervention as a way to stop conflicts
such as those in Kosovo. With others, they consider policing
efforts, such as where the RCMP is involved — and here I am
referring not only to Haiti — and at others they engage in civil
administration and even social work in regions devastated by
The potential danger here, honourable senators, is that of state
activism which can arise because there are no longer any clear
decision-making centres, or because Parliament is ignored or
information on potential missions is defective or biased or the
cost of missions are concealed. We must be clear and selective.
Our interests must also be concerted in establishing the criteria
that will guide Canada's actions.
In the case of Kosovo, for example, it is now quite certain that
Canada has made a long-term commitment without any real,
preliminary or serious public discussion in Canada.
The Treasury Board, for example, estimates Canada's costs in
this operation at $500 million in 1999; and at $350 million for
2000. There were probably also costs in 1998 in the preparation
period, but the figure for that is not given. I hope that we have
not placed ourselves in the situation of another Cyprus, a 25-year
venture which, in 1987, cost us $1 billion per year, because it
also partly justified our presence in Germany at the time.
Data now available on the conflict in Kosovo seem to indicate
that, first, Mr. Clinton had other existential concerns when he
said yes to Mr. Blair, who himself might have been driven by his
own eloquence; second, that atrocities did not cease during the
war; and, third, that we have not yet reached the end of the tunnel
in this conflict in former Yugoslavia.
I will let others debate the legality of the NATO intervention
in Kosovo and simply say that, in the future, we will have to be
more careful before ignoring the will of the Security Council,
even if it needs to seriously review its mandate and ignore the
will of the United Nations.
However, this conflict has had a positive impact on another
level: the image that Europeans have of themselves. I think that
the European conscience, which was heretofore monopolized by
economic and financial issues, has now been extended to security
and defence issues.
Western Europeans realized, honourable senators, their
logistical incapacity to deploy their forces on their own
continent, their lack of equipment and tactical information, the
absence of coordinated management of personnel, and so on. In
short, it was a clear reminder that NATO is first and foremost
U.S. might, even 50 years after World War II.
The resulting European defence initiative is a healthy and
legitimate movement. It will take a lot of time and goodwill to
coordinate the defence budgets of our European allies. It will be
as important a test as Maastricht with regard to the willingness of
the French, the British and the Germans to work together and to
coordinate their forces and their materiel purchases.
What is important for us is that this initiative is developing
within NATO in order to preserve the transatlantic tie to which I
was referring earlier and which is so vital to us.
I should now like to talk about the very important issue of
government accountability in foreign affairs in general, but
particularly in the area of defence and, to a lesser extent, in the
area of international aid. It is not the first time that I raise this
issue here. I do so again today because I believe that it is
fundamental to Canadian democracy and that an adjustment is
necessary in the evolution of our parliamentary practices.
Under the Canadian Constitution, which is 133 years old and
inspired by Westminster, the government or executive has the
upper hand over foreign policy, including security matters; the
government enters into treaties, declares war and deals with
For its part, Parliament either amends or does not amend
Canadian laws to bring them in line with the obligations
stemming from the treaties entered into by the government and
either appropriates or does not appropriate the funds necessary
for war expenses or foreign aid.
Parliament may also hold debates on any issue it deems
necessary to bring to the public's attention; it may also question
the government on its public policies or criticize them. In a
nutshell, this is where Canada's constitutional law is at in this
Parliamentary practice in this respect varies a lot. In the 1920s,
Prime Minister Mackenzie King, frustrated by the military
commitments involving Canada made by London, made sure that
Parliament passed a resolution in the summer of 1939 before
Canada declared war in September 1939.
The United Nations Charter, in 1945, and the NATO treaty, in
1949, were submitted to Parliament before they were ratified by
the government. The same approach was followed to amend the
NATO treaty in order to admit Greece and Turkey, in 1952, and
Germany, in 1955.
During this period, Parliament's participation in the decision to
deploy troops abroad has been sporadic, as stated by our
committee chairman, Senator Stollery. In the case of Cyprus, the
Golf War and Somalia, Parliament was consulted, but it was not
on Korea, Zaire and Kosovo.
Similarly, the NORAD agreement, in 1958, was not submitted
for Parliament's approval, nor was the admission of new
members such as Spain, in 1982, or Hungary, Poland and
Czechoslovakia, in 1999. Even well-established customs such as
the tabling of international agreements in Parliament was
Honourable senators, I submit that this situation is utterly
unacceptable and that Parliament must be more consistent with
the requirements of democracy in the 21st century. It is not
because Canada is a member of the United Nations organization
that it must take part in all operations authorized by the United
Nations, the nation's voice must be heard before young people
are sent to face enemy fire.
In security matters, it cannot be taken for granted that what the
minister wishes will always be desirable for the people. For
example, if the minister is in favour of policing operations, he
will want to establish order around the world, despite the sage
advice of our former ambassador to the United States, who
maintains that even the United States cannot do that. Thus, if the
minister is a proponent of military operations, he will need troops
on every front. If he is more of a social worker, he will have to be
involved in all humanitarian undertakings.
Honourable senators, I submit that it is wise that ministerial
aims be viewed against those of Parliament so that what the
people view as important foreign policy, security and
international aid issues can be ascertained.
A very serious effort must therefore be made to remedy
Parliament's virtual absence from these important areas, which is
an unhealthy development for Canadian democracy.
I understand that the British tradition of our parliamentary
system favours the executive branch of government, which
historically held all powers, much more than the republican
systems of the United States and France. The British system
existed prior to the advent of democracy and, although it has
been influenced by that event, it remains, perhaps more so in
Canada than in England itself, characterized by this
predominance, although not domination, of the government's
Honourable senators, I submit that, in the year 2000, it is high
time we change the way in which we do things and that we
submit the government to rules that, while allowing it reasonable
room to manoeuvre in order to be effective, reasonably restrict its
discretionary power. The other Western democracies appear to
give their parliaments a broader official role in reviewing major
foreign policy decisions: declaration of war resolutions, prior
debate and approval of treaties, debate on important agreements,
and authorization to deploy military forces abroad.
In England, for example, our report discusses the "Ponsonby"
rule, which, since 1920, has required that international
agreements that are to be ratified be communicated to the Houses
of Parliament at least 21 days prior to ratification — hence, the
importance of our recommendations 12 to 15 on page 84 of this
I personally would prefer to see a constitutional amendment
partially limiting the discretion of the executive branch in foreign
policy. In other words, it seems to me that the general rule of
liberal societies that the government may do nothing unless
authorized by Parliament is a wise rule, whereas it now appears
to be the rule that the government can do everything except what
it is prohibited from doing. I would remind honourable senators
that, in true liberal societies, it is individuals that enjoy this
freedom, not governments, which should be governed by the rule
that they may do nothing except what is permitted by law.
Failing an appropriate constitutional amendment, we should
perhaps consider including in the Department of Foreign Affairs'
enabling statute criteria that will set limits for departmental
intervention abroad in the field of human security, such as, for
example, a resolution by the United Nations General Assembly
in the case of mass genocide.
In his speech at Middlebury College, Minister Axworthy
spoke more openly than previously about the criteria for military
intervention outside Canada.
We have addressed security issues here. In closing, I wish to
emphasize that this rule should also prevail as regards
development assistance to Third World countries and in national
and international commitments through the specialized
institutions of the UN or those established under the Bretton
Woods accords. Here, as well, limits must be placed on
ministerial discretion through clear statutory criteria known to
While that discretion must be broad enough to permit flexible
ministerial action where required, its limits must not be so
unclear as to lead to bureaucratic abuse. I would recall here that
an organization as important as CIDA was not even constituted
by an act of Parliament, but by a mere Order in Council.
However, this organization annually allocates $2 billion in public
funds for various purposes. Statutory criteria are clearly called
for here in order to set parameters for administrative action.
Just as in security matters, Parliament's voice must be heard
before the government gives orders to the Armed Forces, so the
voice of the people must guide the diplomatic actions of
You must understand, honourable senators, that as a former
senior public servant I have the greatest respect for military
personnel, diplomats and ministers, but, in free societies, the law
as enacted by Parliament must rightly be the supreme guide of
On motion of Senator Andreychuk, debate adjourned.
The Hon. the Speaker pro tempore: Honourable senators, it is
6 p.m. Is leave granted for the Chair not to see the clock?
Hon. Dan Hays (Deputy Leader of the Government): I do
not think it is quite six o'clock, Your Honour. However, if you
wish, I suggest that if we go past six o'clock and we only have a
few items of business with which to deal that we not see the
The Hon. the Speaker pro tempore: It is agreed, honourable
Hon. Senators: Agreed.
Bill to Give Effect to the Requirement for
as Set Out in the Opinion of the
Supreme Court of Canada in the Quebec
Motion to Instruct Committee to Amend—Point of
On the Order:
Motion of the Honourable Senator Lynch-Staunton,
seconded by the Honourable Senator Kinsella:
That upon committal of Bill C-20 to committee, that the
committee be instructed to amend Bill C-20 to rank the
Senate of Canada as an equal partner with the House of
Commons, and report back accordingly.—(Speaker's
The Hon. the Speaker pro tempore: Honourable senators, on
Tuesday, April 11, when Senator Lynch-Staunton, the Leader of
the Opposition, moved a motion of instruction, Senator Hays, the
Deputy Leader of the Government, rose on a point of order.
Senator Hays claimed that the motion of instruction was out of
order because it was not in the correct form. The motion of
Senator Lynch-Staunton seeks to instruct the committee that
would examine Bill C-20 to make certain amendments "to rank
the Senate of Canada as an equal partner with the House of
Commons." According to Senator Hays, this instruction is
mandatory in form and, consequently, is out of order. Senator
Hays argued that the instruction must be permissive, rather than
mandatory, because the power to amend the bill is a power that
the committee already possesses. In support of his position,
Senator Hays referred to a ruling of November 1995, as well as
to Bourinot's Parliamentary Procedure and Practice in the
Dominion of Canada.
Subsequently, there were some other interventions by several
senators, including Senator Lynch-Staunton who supported his
motion with a citation from Beauchesne's Parliamentary
Rules & Forms as well as a reference to the Companion to the
Standing Orders and Guide to the Proceedings to the House of
Lords. I want to thank all senators who spoke on the point of
order. I have reviewed the material and the references that were
cited during the discussion on the point of order. I am now
prepared to give my ruling.
Motions of instruction are relatively infrequent in Canadian
parliamentary practice. They are not a regular feature in either
the Senate or the House of Commons, and it is not altogether
surprising that their use can give rise to some confusion. A
motion of instruction was last moved in the Senate December 6,
1999, by Senator Murray. In that particular case, the instruction
proposed to empower the committee to divide Bill C-6, a bill
dealing with electronic commerce. This motion was taken up for
consideration immediately after the bill had received second
reading. As it happened, however, no decision was taken with
respect to the motion, because it was withdrawn some days later
after the Senate had actually disposed of Bill C-6.
The point of order raised by Senator Hays focuses on the
question of whether the motion of instruction should be in a
permissive form rather than in the mandatory style proposed by
Senator Lynch-Staunton. If it is determined that the point of
order is well founded, then the motion must be ruled out of order.
In trying to determine the proper answer to this proposition, I
felt obliged to investigate some of the history of motions of
instruction in earlier editions of Erskine May's Treatise on The
Law, Privileges, Proceedings and Usage of Parliament, the
British parliamentary authority. This seemed appropriate given
the limited use made of instructions in the Canadian Parliament
and the fact that these motions are derived from British
Motions of instruction developed in the British Parliament at a
time when the powers of committees were narrowly defined and
severely constrained. Through the 18th century and into the first
decades of the 19th century, it would seem that the authority of
committees to amend bills was so limited that they frequently
required instructions from the House to carry out their work
effectively. A partial remedy to this problem was to incorporate
within the rules or standing orders of the House certain powers
whereby the committees acquired the authority to make
amendments to legislation so long as those amendments were
generally within the scope of the bill and were relevant.
Thereafter, the need for instructions became less frequent and
they developed certain characteristics which remain generally the
same to this day. Among these characteristics was the distinction
between permissive and mandatory instructions. The more
ordinary instruction was the permissive instruction which
empowered a committee to exercise certain powers at its
discretion. Instructions had to be in the permissive form if they
were to apply to committees which already possessed some
authority under the standing orders. Instructions could be either
permissive or mandatory if the committees involved possessed
no powers because they were created on an ad hoc basis or if
they concerned private bills.
Applying this basic distinction to the rules of the Senate as
they are presently written, it would seem to me that motions of
instruction to a committee with respect to the study of public
bills must be in the permissive form. This is because our rules
already authorize any committee examining a bill to recommend
any relevant amendments it deems appropriate. Thus, a
committee looking at Bill C-20 has the power to amend it in the
way suggested by the motion of instruction proposed by Senator
Lynch-Staunton. The text of the motion, however, is mandatory
in its form and this is contrary to established usage. This position
is supported by recent Canadian authorities, including
Beauchesne, and is confirmed in the latest Canadian
parliamentary manual, House of Commons Procedure and
Practice, at page 641 as follows:
Motions of instruction respecting bills are permissive rather
Moreover, the present motion of instruction, even if it had
been written in the permissive form, would still not past muster
procedurally. There are various criteria listed in Erskine May on
admissible and inadmissible instructions. Admissible instruction
can authorize a committee to treat legislation in a variety of
different, but specific, ways. Among the instructions which are
acceptable are motions empowering a committee to divide a bill,
to consolidate several bills or to report separately on different
parts of a bill. The motion of instruction of Senator
Lynch-Staunton seeks to do none of these things. Rather it seeks
to instruct the committee to do something which it already has
the power to do. This in fact, is a form of instruction which is
recognized to be inadmissible because it is superfluous.
Beyond this, there is still another reason the motion would
give rise to some doubts about its acceptability, quite apart from
what has already been discussed. Any motion seeking to
authorize or direct a committee in its study of a particular bill
must be clear and explicit. As I read it, the current motion does
not meet this standard. In seeking to have the committee make
whatever changes are required "to rank the Senate of Canada as
an equal partner with the House of Commons," the motion is not
providing an instruction that is adequately explicit. The language
is not clear or specific enough. It does not allow the committee to
understand definitely what provisions the Senate desires that it
should take into consideration. For these reasons, therefore, I rule
that the motion of instruction proposed by Senator
Lynch-Staunton is out of order.
As a final comment, while the point of order was raised at the
earliest opportunity when the motion of instruction was first
called, I think it advisable to note that a motion of instruction
cannot properly be taken up for debate prior to the adoption of
the second reading motion on the bill to which it relates. Again,
all the authorities are clear on this. Beauchesne states, at
paragraph 684 on page 204, that:
The time for moving an Instruction is immediately after
the committal of the bill, or, subsequently, as an independent
motion. The Instruction should not be given while the bill is
still in the possession of the House, but rather after it has
come into the possession of the committee. If the bill has
been partly considered in committee, it is not competent to
propose an Instruction.
Canadian Radio-Television and
Motion Urging Reconsideration of Ruling Denying
TVOntatio Request to Distribute Télévision Française de
L'Ontario in Quebec Withdrawn
On Motion No. 56:
That the Senate recommend to the Government of Canada
that it request the Canadian Radio-Television and
Telecommunications Commission (CRTC) to reconsider the
decision handed down on March 1, 2000, regarding the
application by TVOntario - TFO (French-language
television channel), in order to allow the only network
producing French and cultural programming outside Quebec
to distribute that programming in Quebec by cable.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I rise at the request of Senator Gauthier to
ask leave of the Senate to withdraw this motion standing in his
name. Briefly, the reason for the request is that Senator Gauthier
has, in the absence of a response from the Chairman of the
CRTC, become frustrated with this approach and has commenced
a legal action to seek a remedy, the thrust of this motion being
the reconsideration of a CRTC decision.
Therefore, on behalf of Senator Gauthier, I request leave for
this motion to be withdrawn from the Notice Paper. I should be
happy to give further clarification, if requested.
The Hon. the Speaker pro tempore: Honourable senators, is
leave granted to allow that Motion No. 56 standing in the name
of Senator Gauthier be withdrawn from the Notice Paper?
Hon. Senators: Agreed.
Leave having been given to revert to Government Notices of
Hon. Dan Hays (Deputy Leader of the Government), with
leave of the Senate and notwithstanding rule 58(1)(h), moved:
That when the Senate adjourns today, it do stand
adjourned until tomorrow, Wednesday, May 3, 2000, at 1:30
That at 3:30 p.m. tomorrow, if the business of the Senate
has not been completed, the Speaker shall interrupt the
proceedings to adjourn the Senate;
That should a division be deferred until 5:30 p.m.
tomorrow, the Speaker shall interrupt the proceedings at
3:30 p.m. to suspend the sitting until 5:30 p.m. for the
taking of the deferred division; and
That all matters on the Orders of the Day and on the
Notice Paper, which have not been reached, shall retain their
Motion agreed to.
The Senate adjourned until Wednesday, May 3, 2000, at