Download as PDF

Debates of the Senate (Hansard)

2nd Session, 36th Parliament,
Volume 138, Issue 56

Tuesday, May 16, 2000
The Honourable Gildas L. Molgat, Speaker

Table of Contents


Tuesday, May 16, 2000

The Senate met at 2:00 p.m., the Speaker pro tempore in the Chair.



The Late Keizo Obuchi


Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, on Sunday, May 14, former prime minister Keizo Obuchi of Japan died in Tokyo's Juntendo Hospital. As honourable senators are aware, this has come some weeks after former prime minister Obuchi suffered a stroke and fell into a coma.

I wish to join the Right Honourable Jean Chrétien, and I am sure I speak for all senators in this respect, in offering condolences to former prime minister Obuchi's family, the Japanese people, as well as members of the Japanese Diet and his Liberal Democratic Party.

Prime Minister Obuchi was a respected world leader admired for his humility and soft-spoken approach to politics. The Japanese people have been well served by him as a political leader. His tenure will be remembered for many things, among them stimulating Japan's stagnant economy after its worst recession in 50 years and for officially giving the people of Japan a national anthem and flag. He demonstrated an innate ability to bring consensus among the many factions of his party and had a long-standing interest in facilitating friendly relations between Canada and Japan.

For one so young, he made a notable and extraordinary impact. Former prime minister Obuchi will be long remembered and missed.

British Columbia Coastal Parliamentarians

Hon. Pat Carney: Honourable senators, I report to this chamber on the work of the B.C. Coastal Parliamentarians. This is an all-party, all-partisan group, including senators, MPs and MLAs, formed out of a mutual desire to exchange views and concerns relevant to British Columbia's coastal communities. There are about 40 villages and towns from Alaska to Steveston.

Coastal parliamentarians have worked diligently together since this group's formation three years ago. I have chaired this group since its inception and run an e-mail network of information and correspondence out of our office. This year, I have handed over the chair to John Duncan, Alliance MP for Vancouver Island North. The vice-chair of this group is John van Dongen, Liberal MLA for Abbotsford.

Honourable senators, the coastal parliamentarians meet yearly at the Coastal Community Network's annual conference. It provides an important venue for coastal parliamentarians to address issues that have impacted on the region and to bring forward the issues that concern the mayors and councillors, tribal councils and chiefs.


Topics during this year's meeting included the lack of modern telecommunications infrastructure on the West Coast that inhibits tourism and Internet small business, the location of fish farms and wild salmon migration routes, the continuous divestiture of docks and wharves in small communities, as well as inadequacies of ferry services. The CCN theme this year was "New Initiatives, New Beginnings," representing communities that have been hard hit by the disastrous fishing policies of the Liberal government.

In the past few years, the Coastal Community Network has taken on an increasingly important role in providing a forum for B.C. coastal communities to express their concerns, seek information and seek solutions. The CCN has proven that cooperation is the essential ingredient of the decision-making process affecting our coastal communities.


The Navy League of Canada

Hon. Lise Bacon: Honourable senators, last Saturday, May 13, I had the pleasure to attend the annual review of the Laval corps of the Navy League of Canada. Once again, this was an opportunity for the 12- to 18-year-old members of NLCC Annapolis 43 and RNCC Sioux 11 to show off what they have learned in the past year.

I have had the honour of attending the annual review of the Laval Navy League more than once, and was therefore pleased to note the increase in numbers over previous years. It is nice to see that, at a time when the consumer society is so full of increasingly sophisticated attractions for teens, some of them are still involved in activities that require of participants a sense of discipline and of duty.

It would be far easier for them to spend all their free time in front of a television set or computer screen. Yet week after week, these young men and women, from a variety of cultural and economic backgrounds, meet and join in activities aimed at attaining and surpassing joint objectives. The quality of the annual review I attended on the weekend, and the serious approach participants took to it, show just how enthusiastic and determined these young people are.

In addition to the technical and physical training offered by the Navy League of Canada program, cadets also have the opportunity to put into practice values and principles which will make them better citizens. The Navy League provides the opportunity to develop leadership skills in an atmosphere of camaraderie, and to assume responsibility while developing a sense of solidarity. Far from the picture of today's youth seen so often in the media, the young people I met on Saturday gave me great hope for the future.

In closing, I should like to draw attention to the hard work and devotion of volunteers and parents, which is what makes it possible for these young people to enjoy this unique experience. These Canadians richly deserve our recognition and support of their remarkable work.

The Late Justice Jules Deschênes


Hon. Michael A. Meighen: Honourable senators, on Wednesday last, May 10, the Canadian Bar and the Barreau du Québec lost a great luminary in the person of the Honourable Mr. Justice Jules Deschênes, who passed away at the age of 76.

A Companion of the Order of Canada, prolific author of 10 books and over 100 articles, speaker in great demand in Canada and abroad, the judge was brilliantly successful in all three of his careers: first, as a lawyer and law professor; second, as Chief Justice of the Quebec Superior Court; and, finally, as an international jurist elected by the General Assembly of the United Nations to sit on the International Criminal Tribunal for the former Yugoslavia.

Born in Montreal on June 7, 1923, Justice Deschênes was a brilliant student and winner of the medals of the Governor General and of the Lieutenant-Governor of Quebec. Called to the Bar in 1946, he founded the law office of Deschênes, de Grandpré, Colas, Godin and Lapointe, which became in the 1960s the greatest firm of French-speaking lawyers in Montreal.

His remarkable intellect combined with an exceptional capacity for work. His decisions always reflected his exceptional legal mind, his impeccable logic and his great intellectual courage.

He was appointed by Prime Minister Brian Mulroney to head the Commission of Inquiry on War Criminals from 1985 to 1987. This is where, honourable senators, I had the opportunity of making his acquaintance and working with him as legal advisor to the commission. During this period of close cooperation with Mr. Justice Deschênes, I had the opportunity to observe closely his tireless and painstaking work. As the result of the recommendations made by Judge Deschênes and accepted by the Mulroney government, it is now possible for the first time to prosecute individuals accused of criminal acts abroad. Furthermore, his report put an end once and for all to the rumour that the infamous Dr. Joseph Mengele had applied to enter Canada in 1962.

Judge Deschênes was good and kind to everyone who had the privilege of working with him. His devotion to justice and his integrity have marked us profoundly. He was an example to all, and I shall not forget this great man.

Predeceased by his wife, Jacqueline Lachapelle, he is survived by their five children and 15 great grandchildren. At his funeral yesterday in Saint-Germain d'Outremont church, I was struck by the many eminent jurists and politicians who came, quite rightly, to pay their respects.

In his autobiography entitled In the Line of Fire, Justice Deschênes wrote of his hope: making the world a little better than if I had not lived...

Justice Deschênes, your wish has been granted.



Hon. Gérald-A. Beaudoin: Honourable senators, Justice Deschênes was born on June 7, 1923, in Montreal, completed his classical studies at Collège Grasset, and took his law degree at the University of Montreal (LL.M. 1946). He received the Governor General's Award for Excellence, several honorary doctorates in law, and a number of other awards during his lifetime. He was made a Companion of the Order of Canada in 1993.

I attended Justice Deschênes' lectures at the University of Montreal. He taught civil procedure and always expressed himself with great clarity.

A private sector lawyer, a talented litigator, a Superior Court justice, an Appeal Court justice, and Chief Justice of the Superior Court for 10 years, he was without a doubt one of our greatest legal minds.

He found the time to write many highly interesting books, such as The Sword and the Scales, L'école publique confessionnelle au Québec, Conflits linguistiques au Canada 1968-80, Justice et pouvoir: A Passion for Justice, and his memoirs entitled In the Line of Fire.

He took part in the work of the International Court of Justice in The Hague and was a member of the International Criminal Tribunal for the former Yugoslavia. He was very active internationally.

I wish to pay tribute to the learned symposia he organized in Canada and abroad on international judicial independence and on rights and freedoms.

He was, without a doubt, a remarkable person, an incredibly hard-working man, and a very cultured man. Rarely in my lifetime have I seen anyone as energetic or trenchant.

To all members of his family I extend my deepest sympathy. We have lost a great jurist.

The Hon. the Speaker pro tempore: Honourable senators, the period allocated for Senators' Statements has expired. I shall recognize two other senators who had indicated their intention to speak.

Hon. Serge Joyal: Honourable senators, I should like to add my words to those of my colleagues the Honourable Senators Meighen and Beaudoin, concerning the passing of Justice Jules Deschênes. I would remind my colleagues that, 24 years ago, I was a petitioner before Justice Deschênes against Air Canada and Transport Canada in connection with the interpretation of the provisions of the Official Languages Act.

My colleagues in this house, particularly the Honourable Senators Gauthier and Prud'homme, who sat with me in the other place, will recall the historical importance of this case.

Justice Deschênes had headed a fact-finding commission which travelled to Paris and Brussels in order to carry out on-site verifications of how their control towers operated using, in addition to French, English, obviously the international language of air navigation.

During the proceedings, which took a number of months, Justice Deschênes showed himself to be a fair, attentive and humane man, one concerned particularly with ensuring that one of the fundamental principles underlying the structure of Canada, that is, the equality of both official languages, was respected not only in spirit but also in the letter of the law.

This is perhaps the area in which Justice Deschênes made the greatest contribution to the legal heritage he has left to us, the ability to read into the texts and legislation passed by us the underlying spirit behind the Canadian constitutional framework.

I certainly wish to join with my colleagues in paying tribute to him and to his family, and in thanking them for making it possible for such a great jurist to enlighten this Parliament.


Ms Claire Biddulph 
Ms Nicole Methven 
Mr. Trevor Steinburg 
Mr. Larry Uteck

Congratulations on Recent Accomplishments

Hon. Wilfred P. Moore: Honourable senators, I rise today to speak in recognition of Claire Biddulph and Nicole Methven, two Master of Business Administration students at Saint Mary's University in Halifax. They won the top prize, and $15,000, at the Canadian Imperial Bank of Commerce — Ivey MBA National Business Plan Competition, held at the University of Western Ontario from March 31 to April 2. Next, they represented Canada in the International MOOT CORP Business Plan Competition, held in Austin, Texas, from May 5 to 7, where they won the Fast Pitch Competition.

Honourable senators, as part of this contest, these young women had 15 minutes to present their business plan for, a disease management site soon to appear on the World Wide Web that will provide doctors, patients and caregivers with up-to-date information about Alzheimer's disease.

I also wish to recognize Trevor Steinburg, coach of the varsity hockey Huskies. On March 26, this "Santamarian" was awarded the Canadian Interuniversity Athletic Union Coach of the Year for the second straight year, making him the first coach in CIAU history to win this prestigious award twice in a row.

Our congratulations to Coach Steinburg are to be shared by him with Larry Uteck, Athletic Director at Saint Mary's University, and a man whose leadership qualities have created an atmosphere that breeds a successful merger of academics and athletics of national stature.


Results of By-election in St. John's West and Congratulations to Mr. Loyola Hearn

Hon. Ethel Cochrane: Honourable senators, I should like to draw your attention to the results of yesterday's by-election in St. John's West.

Some Hon. Senators: Hear, hear!

Senator Cochrane: The Conservative caucus will be welcoming a new member of Parliament, Mr. Loyola Hearn, when we meet tomorrow. As I am sure honourable senators know, Mr. Hearn defeated a spirited challenge from the NDP. The combined campaign efforts of Premier Tobin and a parade of federal cabinet ministers produced a third-place finish for the Liberal candidate. As for the Canadian Alliance, they gathered a few more votes than the candidate for the Extreme Wrestling Party, even though they ran a well-known candidate from Newfoundland by the name of Frank Hall. I am told they had a great organization, but still they could only muster 4.1 per cent of the total vote. That is an indication of where the Canadian Alliance stands in Newfoundland.


Honourable senators, Loyola Hearn will bring a wealth of experience in Newfoundland politics, including his experience as a provincial cabinet minister, to his duties as member of Parliament representing St. John's West. He will be a tremendous asset to our Conservative caucus and a hard-working supporter of Conservative policies. Loyola Hearn's victory yesterday reaffirms Conservative support in Newfoundland and the strength of the Conservative Party in Atlantic Canada as we head closer to the next federal general election. When that time comes, he will stand beside the Right Honourable Joe Clark in leading our election team in Newfoundland.

Distinguished Visitors in the Gallery

The Hon. the Speaker: Honourable senators, before we go on to other items on the Order Paper, I should like to draw your attention to the gallery and some former senators who are visiting with us today. We have former senator Thériault, former senator Stanbury and Mrs. Stanbury, and former senator Johnstone.

On behalf of all your colleagues, I wish you welcome back to the Senate.


Privacy Commissioner

Annual Report Tabled

The Hon. the Speaker: Honourable senators, I have the honour to table the annual report of the Privacy Commissioner for the period ended March 31, 2000.


Canada Transportation Act
Competition Act
Competition Tribunal Act
Air Canada Public Participation Act

Bill to Amend—First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-26, to amend the Canada Transportation Act, the Competition Act, the Competition Tribunal Act and the Air Canada Public Participation Act and to amend another Act in consequence.

Bill read first time.

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

On motion of Senator Hays, bill placed on the Orders of the Day for second reading on Thursday, May 18, 2000.


Legal and Constitutional Affairs

Notice of Motion to Authorize Committee to Meet During Sitting of the Senate

Hon. Lorna Milne: Honourable senators, I give notice that tomorrow, Wednesday, May 17, 2000, I shall move:

That the Standing Senate Committee on Legal and Constitutional Affairs have power to sit on Wednesday, May 17, 2000, at 3:30 in the afternoon, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

Social Affairs, Science and Technology

Notice of Motion to Authorize Committee to Meet During Sitting of the Senate

Hon. Michael Kirby: Honourable senators, I give notice that on Wednesday, May 17, 2000, I shall move:

That the Standing Senate Committee on Social Affairs, Science and Technology have the power to sit on Wednesday, May 17, 2000, at 3:30 p.m., even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.



Social Affairs, Science and Technology

Notice of Motion to Authorize Committee to Meet During Sitting of the Senate—Request for Explanation

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, my question is directed to the Chairman of the Standing Senate Committee on Social Affairs, Science and Technology, who has just given notice of motion that this committee will be sitting. Can the Chairman provide an explanation as to the committee's pressing business?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, we have momentarily lost the presence of the Chairman. I shall ask one of my colleagues to retrieve him. He should be back momentarily.

Legal and Constitutional Affairs

Notice of Motion to Authorize Committee To Meet During Sitting of the Senate—Request for Explanation

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, perhaps I could ask a question of the Chair of the Standing Senate Committee on Legal and Constitutional Affairs, who has also presented a notice of motion for her committee to sit while the Senate is sitting. Could the honourable senator give us an indication as to the committee's business plan for tomorrow afternoon?

Hon. Lorna Milne: Honourable senators, the Legal and Constitutional Affairs Committee has a very full agenda tomorrow afternoon. Appearing before us will be the Evangelical Fellowship of Canada; Focus on the Family (Canada); a senior researcher on public policy; the National President of Women for Life, Faith and Family; the President of the Toronto District Muslim Education Assembly; the Metropolitan Community Church of Toronto; the United Church; and the Naskapi Nation. These witnesses have all been arranged and have agreed to appear.

Hon. Anne C. Cools: Could I ask the Chairman, Honourable Senator Milne, a question? She read a list of witnesses, but I did not hear the name of Gwen Landolt of Real Women. Could the honourable senator tell us when Ms Landolt will be appearing?

Senator Milne: We have been attempting to get Ms Landolt to appear. She has had the same two weeks' notice as the other witnesses on this list. She is not available to appear tomorrow. We asked her if she could send a replacement or submit a brief to the committee. I understand that she has refused to do this. We are anxious to hear from Real Women.

Senator Cools: I should hope that the committee will find a way to hear Ms Landolt. She is an eminent lawyer from Toronto who is very well informed in this particular area. I would ask the steering committee and Senator Milne to give due attention to hearing her. A brief would be insufficient.

Senator Kinsella: Honourable senators, my supplementary question is directed to the Chair of the Standing Senate Committee on Legal and Constitutional Affairs.

Could the honourable senator advise us whether her committee has notified the potential witnesses that the committee will not sit before 3:30 p.m.? I understand the need of the chairs of committees to be able to plan their committee's work, but traditionally committees may not sit until the Senate rises. Could the honourable senator confirm that the witnesses understand how the system works?

Senator Milne: I am quite sure that the clerk of the committee is on the telephone right now to these people. They had been booked to start at 3:30 p.m., the normal starting time for the committee. I am sure they will all be informed of what may or may not happen tomorrow.

International Trade

World Trade Organization—Negotiations on Agricultural Subsidies—Government Policy

Hon. A. Raynell Andreychuk: Honourable senators, I was very pleased to see that Minister Pettigrew replied to the report of the Standing Senate Committee on Foreign Affairs entitled "Europe Revisited: Consequences of Increased European Integration for Canada." I hope this bodes well that other ministers will reply quickly, as he did, to our report. The advice we give in our reports should be considered because many hours are involved and many experts appear before us.

What troubled me was recommendation 3, where we suggested that the federal government formulate an aggressive political strategy — and we did stress political strategy — in advance of the World Trade Organization's round of multilateral trade negotiations. The minister's reply seems to be rather general again, where he says that Canada will use WTO negotiations to vigorously pursue specific negotiating objectives, that we will continue to work with the Cairns Group, and that we will take every opportunity. Again, the reply is general.

I previously asked this question and I shall ask it again: When will we receive a specific strategy, an innovative political strategy, with respect to the WTO and agriculture in particular?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I thank the honourable senator for once again raising this important issue. I am pleased that Minister Pettigrew has responded, although obviously not in quite as much detail as the honourable senator would wish.

The political strategy within the WTO on this topic often is not conducted on a broad public stage but between individual countries and multilaterally with groups of countries. I can inquire as to what extent the minister is prepared to share specific political tactics or strategies. My suspicion is that his remarks at this stage were deliberately general, but I shall pursue that on behalf of the honourable senator.

Senator Andreychuk: Honourable senators, I do not think that it was ever intended that these be backroom strategies. By "political," it was intended that the issue be taken out of the bureaucracy and moved higher on the agenda into the cabinet. Strategically, agriculture and the WTO are very important. By "political strategy," many years ago the Cairns Group, very publicly and open, came together with key objectives of how to pursue agricultural reform. I presume that what we are looking for now is some innovative strategy, particularly when the government has indicated that this issue was high on its agenda, has put in Mr. Marchi over and above key professional expertise in the WTO, and has said that it is ready to use some political muscle. When will we benefit from Mr. Marchi's presence there, having put Mr. Weekes in another position, and when will we get a specific strategy? Months have gone by and agriculture is not getting the fair attention it should.

Senator Boudreau: I can assure the honourable senator that the issue of the WTO and the approach by the European Community, the United States and others with their subsidy levels is a matter of serious concern for the government. Without disclosing specifically any confidences within the cabinet, it has been a topic of frequent discussion and attention by Minister Pettigrew specifically, but also by other colleagues, including the Minister of Agriculture, and, quite actively, by Minister Goodale.


The honourable senator has made the point that the political strategy is not sufficiently shared in a public way. I shall simply convey those feelings and that viewpoint to Minister Pettigrew and other colleagues who have been very interested in this issue. We can only await their response.

I shall say, however, that one should not conclude that a political strategy does not exist or that activity is not taking place as we speak.

Senator Andreychuk: Honourable senators, I raised this matter in a previous question and asked for a written response. I trust Mr. Pettigrew, or someone else, will provide us with an answer.

When we were moving ahead with the land mine strategy, for example, every parliamentarian who travelled anywhere was given a briefing and a suggested mandate to further that very good goal. We are doing nothing to further agriculture. Yet, on any given day, somewhere in the world, there is some group that could make representations to some other parliamentarian to shine the light on this subject. That is my concern. I ask for an undertaking to get on with that strategy.

Senator Boudreau: Honourable senators, I certainly appreciate the honourable senator's wish to involve parliamentarians generally and, indeed, herself in this effort to move the WTO, the European Community and the United States to deal with the unsatisfactory agricultural subsidy imbalance which puts our farmers in Western Canada, in particular, at great disadvantage. Again, I give the undertaking that such a response will come forward from the minister and that I shall communicate the views of the honourable senator.

Hon. Leonard J. Gustafson: Honourable senators, there is a general feeling among farmers that the government has used the WTO as a scapegoat for dictating reality. Is that in fact the case?

It has come to the point where farmers will no longer accept the reasoning that we cannot do this or that because the World Trade Organization demands a certain criteria. When the Senate Agriculture Committee studied this whole area, we learned that we had acted like boy scouts in the negotiating process. In other words, we gave away the ship. Yesterday, this issue was raised before the Agriculture Committee again. Farmers are very concerned that the government is using the WTO as a scapegoat to do away with the responsibility that is theirs.

Senator Boudreau: Honourable senators, I must confess to the honourable senator I am not sure what he means by suggesting the government is using this concern as a scapegoat. The question of agricultural subsidies and the WTO's attempts to deal with those subsidies over the years have been a major challenge. In fact, if the Government of Canada could act unilaterally with respect to the WTO, I am quite certain that we would no longer have this problem.

However, the Government of Canada, in recognizing the difficult situation facing farmers in Western Canada, specifically, has acted in a substantial way over the last number of months with various initiatives. Most recent were the announcements with respect to grain transportation. We await the legislation to be introduced in the other place and, subsequently, before us in due course. This is simply the latest measure which is substantial in nature.

Senator Gustafson: Honourable senators, the minister makes a good point. With regard to grain transportation, it was felt that Canada had to give up the Crow to stay in line with world trade requirements. The fact is that that one decision cost farmers $1 per bushel and took the profit out of agriculture, especially in the grain business. That is the point. Will cabinet allow this to continue, using that excuse as a shield from reality?

Senator Boudreau: Honourable senators, cabinet and the ministers most directly involved, in particular those I mentioned, continue to pursue every effort at the WTO to deal with this subsidy situation. As the honourable senator knows, the problem will not be resolved overnight. It has already gone on for some considerable period of time. However, that should not be interpreted as meaning that the government is not determined in its efforts to deal with it.

With respect to the transportation measures, I had occasion recently to be at a formal dinner, during which I sat with some senior executives from a Canadian national railway company. They were vociferous in their views concerning the amount of assistance this new measure would mean to farmers and, one would guess, out of the hands of their shareholders. The recent measure is substantial. It will put considerable money into the hands of Saskatchewan farmers along with the other measures that have taken place. However, none of those programs should be interpreted as a substitution for the continuing effort to go after the WTO.

Agriculture and Forestry

Possibility of Committee Study on Issues Facing Farmers

Hon. John G. Bryden: Honourable senators, I should like to direct a question to the Chair of the Standing Senate Committee on Agriculture and Forestry.

Do the Honourable Senator Gustafson and the members of the committee have any plans to undertake a comprehensive study and analysis of the agricultural situation, particularly in the West, as it relates to those issues which he has had the opportunity to raise on a regular and continuing basis in this place?

Hon. Leonard J. Gustafson: Honourable senators, yesterday, we received reports from British Columbia, Saskatchewan and Ontario regarding the crisis and the situation that exists in Western Canada and Canada in general. We are preparing to write a report. In fact, we will be hearing from the minister today.

One of the questions to which we will be seeking an answer from him is: What is the long-term program for solving the problem of commodity prices, something which could go on indefinitely? There must be a short-term answer, as well as a long-term answer, to that question.

Today, as farmers are putting in their crops, some have come to me saying, "We do not know how we can possibly recover our input costs when we are putting in these crops at today's market prices."

It is amazing that they have as much stamina as they do to move ahead and put in a crop when they realize that they may have no return on their input costs. It is a serious question. This crisis is a national one at this time. It must be looked into. I could not agree more with the honourable senator.

Senator Bryden: Honourable senators, is the committee considering the whole issue of farming in the West, in particular, or farming throughout Canada given that we are competing on a global basis? We are the chamber of sober second thought, the chamber which is supposed to take the time to do a thorough investigation of all aspects of a question. As the Chairman of the committee knows, voices in various parts of the land are saying that we are in a time of global change that will affect many of us. It surely is affecting farming, just as events have affected, for example, the fishing industry on the East Coast. Sometimes it is, perhaps, not a sufficient answer to say that the situation is causing people to lose their homes.


We know that that sort of change causes people to lose their homes. Ask anyone from Newfoundland about the effects of global change on the huge fishing industry on the East Coast. It affects not just whether you put the crop in or whether you put the nets in this year; it affects whether the industry will continue and how it will continue. Some people, as you know, take the position that some of the land in the West being used for crops would be better used if it were put back to what it was doing earlier.

Honourable senators, there are many issues. I understand Senator Gustafson's answer. However, I was asking if this is not the time for a thorough analysis of that industry by a committee of this chamber — something far-ranging and far-reaching, not on whether we get the crop this year or next year or how many billions of dollars we should invest. There comes a point at which we simply, and I think he would agree, must make a total reassessment. Has the Chairman contemplated doing that? If not, would he consider raising that matter with his committee?

Senator Gustafson: Honourable senators, in fact the mandate the committee today is the future of agriculture in Canada. I, for one, am not ready to say that there is no future in agriculture. It would be a sad day for this country if we were at the point where we were saying that agriculture cannot continue to be a producer. The world needs food.

The big problem today is that the farmers are not getting a fair return compared to others in the food chain. The processors and the rail companies are all showing profits. The banks are showing profits. Some of the processors are showing profits as high as 30 per cent. Meanwhile, farmers are showing a negative return on investments.

I was discussing earlier today with the deputy leader the fact that the value of farms has dropped by half. The country is facing a very serious national problem. The Governor General has come to the conclusion that she will visit rural Canada and speak to people in small towns and the farms to learn the severity of the situation.

The question really is: Is the government prepared to stand behind the farmers until things levels out? Commodity prices will come back. We have had ups and downs before. I have farmed all my life. We have had good times, and we have had difficult times. In the 1980s, I chaired the task force inquiring into the drought in Western Canada when we put up billions of dollars to save the farmers. The prices came back in the late 1980s, and the early 1990s were some of the better years that we have had. However, nothing has been done by the Government of Canada in the last seven or eight years about the safety nets that could have been put in place. Those safety nets must be put in place.

The honourable senator asked if there will be a farming industry in Canada. There will be.

Senator Bryden: Honourable senators, once again, I rise on a supplementary question, as I must keep trying to get an answer. Let me try one more time. Has any consideration been given by the Standing Senate Committee on Agriculture and Forestry to launching an objective study on the issue? I am not referring to studies triggered solely by whatever the prices of the month happen to be or by a program that worked by putting billions of dollars into it 10 years ago? We used to do that, as I indicated, in the fishing industry as well. Does that still work, and if we just do that for another 10 years, will the problem be solved?

There are those people in the world, and some in this city, in the high-tech industry, who say that the global village is different and that we will need to be more thorough and perhaps more sophisticated and certainly very objective in our analysis if we are to compete.

Is there any possibility that the Agriculture Committee could take that sort of a long-term approach for the future as opposed to reviewing what worked in the past?

Senator Gustafson: Honourable senators, the reality is that the Agriculture Committee brought before it, I believe four weeks ago, a recommendation that we set up a special committee to look into the issue and make representations. Senator Sparrow recommended such a study. That was shot down in the committee, frankly, saying that the committee has already been studying the state of agriculture in Canada.

However, I agree with Senator Sparrow. I think there should be a special committee of the Senate on the state of agriculture in Canada, and probably some money should be spent investigating the outcome of the recommendations that would be made by such a Senate committee. I could not agree more.

Pages Exchange Program with House of Commons

The Hon. the Speaker: Honourable senators, I should like to introduce to you the pages that are here with us this week from the House of Commons.

Melanie MacGuire is from Windsor, Ontario. Melanie is enrolled in the Health Sciences Faculty of the University of Ottawa. She is majoring in Human Kinetics.


Éric Plamondon, on my left, is studying at the University of Ottawa. He is majoring in political science in the Faculty of Social Sciences.


If you will pardon a parochial comment on my part, he comes from that wonderful part of Canada known as Winnipeg, Manitoba.

On behalf of all honourable senators, I hope you have a pleasant and interesting week with us here in the Senate.


Business of the Senate

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, as we are now on government business, I am rising, as envisaged by rule 38 of our rules, to comment on discussions that I have had with the Deputy Leader of the Opposition, representing the other party in this place, with respect to our business.

We have come to an agreement with respect to a time for voting on Bill C-20 at second reading stage. I do not intend to say much more than that, although I shall move a motion. Senator Kinsella can comment or not.

The only other comment or observation I want to make is that we do have a busy schedule. We will probably sit late tonight. I shall be in discussion with Senator Kinsella on whether we not see the clock or whether we adjourn until eight o'clock as provided for in the rules.

Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Second Reading—Motion for Allotment of Time for Debate Adopted

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, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, with respect to Bill C-20, pursuant to rule 38, I move:

That, pursuant to rule 38, no later than 3:00 p.m. on Thursday, May 18, 2000, any proceedings before the Senate shall be interrupted and all questions necessary to dispose of the motion of Honourable Senator Boudreau, P.C., 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 Secession Reference, shall be put forthwith without further debate or amendment, and that any votes on any of those questions not be further deferred; and


That if a standing vote is requested, the bells to call in the Senators be sounded for thirty minutes, so that the vote takes place at 3:30 p.m.

The Hon. the Speaker: Honourable senators, I understood from the Honourable Senator Hays that the Honourable Senator Kinsella wanted to make some comments. If I put the motion forward now, I shall not be able to hear the Honourable Senator Kinsella.

Senator Hays: I did not know that, Your Honour. You are correct. It is not a debatable motion. I certainly concur with you.

The Hon. the Speaker: I shall not put the motion forward then, and we shall hear from the Honourable Senator Kinsella at this time.


Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I agree entirely with the explanation of Senator Hays. We had a first-rate debate on Bill C-20, at second reading stage. I should like to congratulate all the senators who have participated in the debate to date.

We raised a number of important principles relating to this bill. Our position is clear and open. We want a sophisticated debate on a subject affecting the life of the country. For this reason, other senators want to take part in the debate and will have the opportunity to do so on Thursday. I fully support the motion of Senator Hays.


Hon. Lowell Murray: Honourable senators, is it the intention of the Leader of the Government, who sponsored this bill in the Senate, to speak in closing the debate? If so, when does he plan to do that?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, yes, it is my intention to speak very briefly to close the debate at second reading. The timing of that will depend on the conduct of the matter by my deputy leader.

The Hon. the Speaker: If there are no further comments, is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

Special Senate Committee on Bill C-20

Motion to Appoint—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Hays, seconded by the Honourable Senator Robichaud, P.C. (L'Acadie-Acadia):

That a special committee of the Senate be appointed to consider, after second reading, the 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 Secession Reference;

That, notwithstanding Rule 85(1)(b), the committee be comprised of fifteen 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 the committee;

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.

Hon. Anne C. Cools: Honourable senators, let me state at the outset that I oppose this motion for a special committee. I do not and I shall not support this motion. It is a sorry motion and it is a sorry proceeding. I oppose it because this motion intends to alienate me from membership on this special committee. This committee is being established to block the reference of Bill C-20 to the proper committee, namely, the Standing Senate Committee on Legal and Constitutional Affairs, of which I am a member. This motion intends to oust certain senators, particularly myself, from Senate committee study of Bill C-20.

Honourable senators, I object strenuously. This motion is both a robber and a thief. It purports to rob Parliament and the Senate of their sovereignty. It seeks to rob the Senate of its own constitution. Further, this motion seeks to rob me, a senior senator, of my right, earned over long years of dutiful service, to diligently participate as a member of the Senate committee considering Bill C-20. This motion is a coward as well. It does not wish to submit the study of Bill C-20 to certain senators, myself included.

Further, this motion seeks to alter the composition of the committee to which Bill C-20 will be committed for study. It seeks to alter and overturn the constitution of the Senate, which, by resolution on November 4, 1999, had already determined the composition and the members of the standing committee deemed by the Senate to be the most competent committee to study such bills.

Honourable senators, in opposing this motion, I shall speak as a Liberal senator from Ontario whose motto is "loyal she began and loyal she remains," a belief that is anchored in Ontario liberalism developed from the work of the Upper Canadian Reformers simultaneously as responsible government developed in Canada. A strong plank of Ontario liberalism was the two definite elements, being a strong assembly, later a strong parliament, and a non-politicized court whose judges did not control and rule the legislatures. Bill C-20 violates those two foundational notions of liberalism in Canada. The bill's title reveals this. The title is, "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 Secession Reference." The Law of Parliament, the High Court of Parliament, eschews its own alienation from its own powers and eschews its own subordination to any court, particularly an inferior court that it created by its own enactment.

Honourable senators, in opposing this motion, I shall speak as a black person, as an Afro-Saxon born in the British West Indies, in Barbados, an island that has the second oldest legislative assembly in the British Empire, now Commonwealth. I shall also speak as an immigrant to Canada, who came to Montreal, Quebec, at age 13. Like several hundreds of thousands of Quebec anglos, I am in exile from Quebec. I departed Quebec, driven by a lack of opportunity for black-skinned anglophones, also immigrant born and also non-French Canadian. I am a refugee to loyal Ontario from a peculiar Québécois notion called "pure laine," — pure wool. Because of my British colonial experience, the historical ties between my birthplace, Barbados, the United States southern Confederacy, and my understanding of the American Civil War and its brutal settling of secession and slavery, I am especially interested in sovereignty and secession, or the separation or dividing of a country.

On October 30, 1995, the night of the last Quebec referendum on secession, the former Parti Québécois premier of Quebec, Jacques Parizeau, as reported in the Montreal Gazette, The Toronto Star and other newspapers the next day, said:

Remember, three-fifths of us who are what we are voted Yes....It's true we have been defeated. But by what? By money and by the ethnic vote.

I am one of those ethnics.

I do not usually talk about race, honourable senators, but I shall begin to talk about it now. My reaction to those words was extremely strong. It was reminiscent of my very powerful reaction, several decades ago, when I first read Thomas Carlyle's December 1849 notorious essay entitled "Occasional Discourse on the Nigger Question." That essay was repudiated by the learned John Stuart Mill in his essay entitled "The Negro Question." Carlyle's essay shocked me terribly because I did not know people could say such things about fellow human beings.

Honourable senators, I oppose this motion because it asks the Senate to agree to the proposition that the Senate has no confidence in certain members of the Standing Senate Committee on Legal and Constitutional Affairs, myself included, and to bypass them. It offends my personal sovereignty as a senior member of that bypassed committee and also the sovereignty of that committee.


I turn now to the question of sovereignty, the sovereignty of Parliament, Canada, and the Senate. Sovereignty is that peculiar condition of a nation determined by and vested in its sovereign, Canada's being Her Majesty Queen Elizabeth II. Sovereignty is a political and parliamentary fact buttressed by the force of arms. The sovereignty of Canada is a constitutional one and was attained in and by a constitutional monarchy. It is indivisible and inalienable. Sovereignty is allegiance to that which and whom is sovereign. It is built on loyalty, honour, and the valour of citizens to defend, to fight, and even to die for it. The plunderer of sovereignty is treason. Treason is a political offence.

Honourable senators, I shall trace now the constitutional history of treason in Canada and in the United Kingdom, and Canada's constitutional position on treason. However, first I shall cite a poignant epigram found in an unsourced footnote in Sir James Fitzjames Stephen's 1883 A History of Criminal Law of England. Mr. Stephen wrote, at page 241:

Treason can never prosper — what's the reason? If it does prosper, none dare call it treason.

That was a footnote by Sir Stephen.

Honourable senators, Manitoba's Métis leader Louis Riel was an elected member of the House of Commons of Canada who never took his seat because he was twice expelled, in 1874 and 1875. The 1875 expulsion was on a resolution moved by then Liberal prime minister Alexander Mackenzie. Later, in 1885, Riel was charged and hanged for treason under the United Kingdom's Treason Act of 1351. That United Kingdom act was part of Canadian law. The tragic and terrible hanging of Riel still haunts the national conscience and needs examination.

Again, in 1947, another member of the House of Commons, Fred Rose, Member of Parliament for Cartier, Quebec, having been convicted of certain forms of treason redefined under the Official Secrets Act, was sentenced and imprisoned. He, too, was evicted by a resolution moved by then Liberal prime minister William Lyon Mackenzie King.

Parliament has particular obligations and definite powers in respect of treason and treasonous conduct. Treason is a peculiar and unique offence. It is to be distinguished from any other offence. The offence of treason rests on infidelity, on unfaithfulness. Treason is not a simple crime, not simply espionage, or larceny, or rioting, or murder, or violence. The complex and distinct offence of treason rests in perfidy. It rests in disloyalty to the political community, that is, to the sovereign, cabinet, assembly, and to subject citizens. Treason is a betrayal of high obligations, of the high, noble and honourable duties. Treason's essence is in the violation of allegiance to Queen and country. Conversely, treason impairs the protection owed by Queen and Crown to subject citizens. Halsbury's Laws of England, Fourth Edition, in a section entitled "Offences against the Government and the Public," under a heading entitled "Offences Against the Sovereign," defines treason, stating, at paragraph 77:

Duty of Allegiance. The essence of the offence of treason lies in the violation of the allegiance owed to the Sovereign.

Further, Jowitt's Dictionary of English Law, Second Edition, confirms this, saying, at page 1799:

Treason or lèse-majesté is an offence against the duty of allegiance, and is the highest known crime, for it aims at the very destruction of the commonwealth itself.

Treason is most complex. There are high treasons and petit treasons. Perjury used to be a petit treason. Treason is the highest crime because it represented descent to the lowest form of behaviour, treachery, of the high purposes, being the honour of the sovereign.

Honourable senators, I oppose this motion because it asks me to agree to my own negligence, to neglect my sworn duty to give my best industry and study to Bill C-20, which I should be able to do as a member of the Standing Senate Committee on Legal and Constitutional Affairs, as I was put on that committee by motion last November. For me, such negligence is an abandonment of my sworn duty — and I mean that; for me to agree is to abandon my sworn duty — and injures my oath of allegiance to Queen and country that I took here in this Senate.

I move now to those oaths of allegiance to the sovereign in Canada. Senators know that Canada's loyal existence was born in self-protection against American military aggression and American wishes to annex Canada, particularly Upper Canada's western bountiful lands. The Dominion of Canada was confederated with due consideration, much anxiety, to the American Revolution, to its Civil War, and to allegiance and treason.

I shall now consider the meaning of allegiance, the duty of allegiance, and its history in Canada, and the requirement of Parliament's allegiance. I shall survey the oaths of allegiance of Canada. Since inception, these oaths have been statutory enactments in distinct provisions of several constitutional acts.

First, let us look at the Oath of Allegiance that we senators here take. All members of Parliament, both senators and commoners, are ordered by the British North America Act, 1867, section 128, to swear the oath of allegiance. Section 128 states:

Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe...the Oath of Allegiance contained in the Fifth Schedule to this Act;

Our oath is based on the BNA Act's Fifth Schedule, and states: swear, That I will be faithful and bear true Allegiance to Her Majesty...

Honourable senators, that is not a hymn or a sentimental piece of poetry. That is the current law of Canada. Members of Parliament, ministers, high office-holders, and judges must take this Oath of Allegiance. An oath is a solemn declaration made by the invocation of a person's deity or conscience. Allegiance to the sovereign, Her Majesty, is an absolute condition of membership in this Parliament. It is a constitutional requirement. That oath is the law, an express enactment of the British North America Act, 1867. Honourable senators, that oath was conceptualized and was legally and constitutionally laid out by Sir John A. Macdonald and the Fathers of Confederation. It is a very short oath, much shorter than its predecessor oaths in predecessor constitutional acts. Its brevity was possible by the accompanying enabling sections of the BNA Act.

Allegiance is enacted by the express provisions of the constitution acts of Canada from 1774 until now. These constitutional acts enacted the oaths of allegiance for members of the assemblies and the councils. These acts, the Quebec Act, 1774, section VII, the Constitutional Act, 1791, section XXIX, and the Union Act, 1840, section XXXV, enacted their lengthy oaths of allegiance in substantially the same words.

All these Canadian constitutional acts enacted the duties of the assembly members and office-holders to be vigilant and diligent against treason. These constitutional oaths of allegiance enacted personal, parliamentary, and constitutional prohibitions against treason. The intention was to protect parliamentary institutions and to bar treasonous ideas, concepts, and persons from participation in Parliament and from advising the sovereign in passing statutes, acts.

Honourable senators, for those of us who do not know, the word for a passed bill, an act, means an act of the King or Queen in Parliament or assembly.

I shall cite one of those three earlier oaths, mainly the act uniting Upper and Lower Canada, the Union Act, 1840. Its section XXXV said:

I, sincerely promise and swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria, as lawful Sovereign of the United Kingdom of Great Britain and Ireland, and of this Province of Canada, dependent on and belonging to the said United Kingdom; and that I will defend Her to the utmost of my Power against all traitorous Conspiracies and Attempts whatever which shall be made against Her Person, Crown, and Dignity; and that I will do my utmost Endeavour to disclose and make known to Her Majesty, Her Heirs and Successors, all Treasons and traitorous Conspiracies and Attempts which I shall know to be against Her or any of them; and all this I do swear without any Equivocation, mental Evasion, or secret Reservation, and renouncing all Pardons and Dispensations from any Person or Persons whatever to the contrary. So help me God.

These enacted oaths demanded allegiance and absolutely condemned treason by the houses of assembly, by the councils, by ministers and governors, and yes, by judges. In the earlier years of this country, judges sat in the chambers, the legislative councils of Upper and Lower Canada.


Honourable senators, I cannot support this motion. In addition to the oaths, these constitutional acts directed other prohibitions regarding qualifications to vote and eligibility to stand for election, again directed at barring and mortifying treason from the legislative chambers. The Constitutional Act, 1791 also enacted another section governing the comportment of persons eligible to vote and to stand for election to the assembly in any election. Its section XXIII said, in part:

And be it also enacted by the Authority aforesaid, That no Person shall be capable of voting at any Election of a Member to serve in such Assembly, in either of the said Provinces, or of being elected at any such Election, who shall have been attainted for Treason or Felony in any Court of Law within any of his Majesty's Dominions...

Further, until 1840, candidates for election to the assemblies in Upper Canada who had resided in the United States of America swore yet another oath, which was a provision in an act about the election of members to the house of assembly and the qualification of voters and candidates at such elections. That 1824 act was 4 George IV, Chapter 3. Its section VIII said, in part: sincerely and solemnly swear, that during my residence in the United States of America, I have not taken or subscribed any oath of abjuration of allegiance to the Crown of Great Britain; and further, that during my said residence, I have not held the office or appointment of Senator, or Member of the House of Representatives of the said United States ...

Honourable senators, I oppose this motion. The Senate committee composition is not the whim, fancy or convenience of the government. Honourable senators, legislative assemblies and legislative councils and their members could not countenance treason and were not available or open to treason in any of its forms.

The Hon. the Speaker: Honourable Senator Cools, I regret to interrupt you, but your 15-minute speaking period has elapsed.

Is the honourable senator requesting leave to continue?

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, might I propose an extension of time of half an hour for Senator Cools to complete her remarks?

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): The honourable senator who is requesting leave —

The Hon. the Speaker: I am sorry, Honourable Senator Hays, I could not hear your comment.

Senator Hays: Honourable senators, the time is up for Senator Cools' speech. Honourable senators will recall that we have had exchanges on this before. While I do not know the extent to which one can speak of rulings without offending any rule of the Senate, the ruling, as I interpreted it, on this issue indicated that any senator could propose a time limit on leave to extend time. In that context, I should like to suggest, honourable senators, that we extend additional time to Senator Cools of 30 minutes.

Senator Kinsella: Honourable senators, I should like to have clarity on this. It seems to me that the honourable senator who is speaking and whose time has run out is the senator who would request leave, if indeed that senator wants leave. Maybe that senator does not want leave to continue. However, if that senator requests the leave, surely that is the person who would know how much more time is needed. It seems to me that the honourable senator would rise, pursuant to the ruling, and request 5, 10, 15 minutes, or sine tempore time. I cannot see how other honourable senators can get up and purport to speak for the senator who is seeking leave. The senator who seeks leave is the senator who would know what he or she is seeking leave for.

The Hon. the Speaker: Honourable senators, perhaps I could refer Honourable Senator Kinsella to the ruling I made on May 11. He will find that ruling in the Journals of the Senate, and the conclusion is at page 593. Under that ruling, it was clear that a senator who is speaking may request leave asking for a certain amount of time but that another senator, in this case Senator Hays, before granting leave, may say, "Yes, I am prepared to grant leave for 30 minutes." That is the condition on which Senator Hays agrees to grant leave. If it is accepted, then, at 30 minutes, we will interrupt the honourable senator who is speaking. If it is not accepted, then no leave is granted.

Senator Kinsella: Honourable senators, for future reference, it will be helpful to understand how this will work. What happens if another senator says, "No. I am prepared to give 40 minutes"? Which time period will apply? Will it be the shorter amount of time that a senator, other than the senator who is asking for leave, mentions or the longer amount of time?

Senator Hays: Honourable senators, I note that the ruling provided for a brief exchange on the matter. I perhaps was ahead of Senator Cools. I assumed that she had asked for leave. If she had not, I apologize.

Perhaps the most sensible way of dealing with it would be, as we do in many cases of requests for leave, to ask the senator asking for leave to explain why he or she wants leave. On the basis of that explanation, we could then make a determination as to what leave should be given or should not be given.

On Senator Kinsella's issue of what happens if one says 30 minutes and one says 40 minutes, it seems to me that the question answers itself, in that the shorter time is what there is agreement on, because the longer is inclusive of the shorter.

With that, honourable senators, I shall let Senator Cools ask for leave. We shall do this correctly.

Senator Cools: Honourable senators, since this debate has begun, perhaps I could find out on what authority or on what rule of the Senate such a ruling is based. Perhaps I could find out from Honourable Senator Hays.

Senator Hays: Honourable senators, does the honourable senator want to know on what rule His Honour's ruling is based?

Senator Cools: I find it curious that, in the middle of a particular senator's speech, other senators can rise and make proposals. My understanding is that parliamentary proposals should take the form of motions. I am speaking to a motion.

As Honourable Senator Hays knows, I am very supportive of him, but I am just asking him, since he was making this particular proposal based on a ruling, what rule of the Senate was being enforced in that ruling.

Senator Hays: Honourable senators, the Rules of the Senate provide, without referring to the specific number, for time for debate on motions, that amount of time being 15 minutes. There are other provisions for certain speakers and so on. However, that is the basis of the interruption at 15 minutes to say the time is up. We have had some exchanges on this, and perhaps this is a useful opportunity to clarify what would be a good procedure on the basis of His Honour's recent ruling.

I think I stood too quickly and have thereby prompted a response. The comment was properly made, I think, that the person speaking should indicate whether or not he or she wishes leave to continue beyond the time provided for in the rules.

In terms of His Honour's ruling, I believe the rules also provide for Speakers' rulings, as do the texts dealing with parliamentary rules, and that is what I shall rely on as the basis for Speakers' rulings, which have been the tradition as long as I have been here. I shall take my seat and trust that the process of granting leave will begin properly with the honourable senator's request for leave.

Senator Cools: Very well, honourable senators, may I have leave to continue?

Senator Kinsella: Yes.

Senator Hays: Honourable senators, in response to Senator Cools' request for leave, I propose that we give leave for her to continue with her remarks for a further 30 minutes.

The Hon. the Speaker: Is leave granted, honourable senators, for Honourable Senator Cools to proceed for a further 30 minutes?

Hon. Senators: Agreed.

Senator Cools: Honourable senator, it is a very interesting question as to which leave is superior, the first leave that was granted to me to continue or the leave that was granted for the other request. It would be very interesting to know which takes priority.

The Hon. the Speaker: I am sorry, no leave was granted. I did not put the question. I asked you: Are you asking for leave?

Senator Cools: I made the request.

The Hon. the Speaker: But I did not proceed to ask, "Is leave" —

Senator Cools: You did.

The Hon. the Speaker: Honourable Senator Cools, I am sorry, the Speaker is standing. Will you please be seated?


Honourable Senator Cools, when I said that your time has elapsed, you stood and you said something I could not hear. When I stand, the microphones are cut off. At that time, I asked, "Are you requesting leave?" Senator Hays proceeded to get up and there was further debate, but at no time did I say, "Is leave granted?" Senator Hays has proposed to give leave for a further half hour and I asked, "Is leave granted?" It was granted and you may proceed.

Senator Cools: Very well. My recollection of the facts is that I asked for leave very clearly and that leave was given. Then Senator Hays rose and then asked for leave for half an hour on my behalf and that was also given. I thank honourable senators.

The Hon. the Speaker: Honourable senators, to clear up the matter, just because an honourable senator asks for leave and someone says yes does not mean leave is granted. The Speaker must ask the Senate whether leave is granted. Without that permission, there can be no leave. It is the Senate that makes that decision on the question.

Senator Cools: Honourable senators, these constitutional acts governed both the qualifications for membership in and the actual behaviour of members in both houses, the assembly and the council. The Union Act 1840's other sections enacted strong measures against members who were adjudged to be treasonous. Its Section VII said:

And be it enacted, That if any Legislative Councillor of the Province of Canada attainted of Treason, or be convicted of Felony or of any infamous Crime, his Seat in such Council shall thereby become vacant.

Some of these words are repeated verbatim in the British North America Act, 1867 enactments about our Senate. The BNA Act's Section 31.(2) enacted disqualification in the Senate for swearing an oath of allegiance to a foreign power and Section 31.(4) enacted disqualification for treason. The BNA's Section 31 enacts that the place of a senator shall become vacant in certain instances. Borrowing the words of the Union Act 1840 just quoted, it enacts the instance of treason. Section 31.(4) says:

If he is attainted of Treason or convicted of Felony or of any infamous Crime:...

I ask honourable senators to reflect on these words, disqualification of a senator "attainted of treason." I shall now explain the relationship of this section to the earlier pre-1867 constitutional acts.

Honourable senators, all Canadian constitutional acts, all assemblies and the Parliament of Canada have always condemned treason and barred treasonous activities and persons from their bodies. About disqualification, the real difference in these constitutional acts from 1774 to 1867 and the British North America Act, 1867 is the fact that in those years, the houses of assemblies and the councils together were simple legislatures. They were not parliaments, and did not possess the full plenary, sovereign powers of a parliament. These legislatures had limited powers. In both Upper and Lower Canada there was civil conflict, even rebellion, about this insufficiency. Upper Canadian Dr. William Warren Baldwin worked on this, as did William Lyon Mackenzie. So did Robert Baldwin. These Reformers wanted strong assemblies. The Union Act 1840, which followed Lord Durham's Report, provided a limited type of responsible government. In that act, the United Kingdom Parliament still denied these legislatures the plenary powers of a parliament, in particular, the full range of the ancient Law of Parliament, the Lex Parliamenti, the ancient judicial and inquisitorial powers of parliament. This lack in sovereign powers had fuelled the rebellions of 1837 in Upper and Lower Canada. This problem had dogged the Colonial Office and in 1867 the United Kingdom Parliament settled it.

However, honourable senators, the United Kingdom Parliament corrected this at Confederation in 1867 by its enactment of the British North America Act, 1867. In Confederation, the United Kingdom Parliament gave the Dominion Parliament the plenary powers of both the modern and ancient parliament.

Honourable senators, this had been the wish of the Father of Confederation and first Prime Minister of Canada, Sir John A. Macdonald, who had full knowledge of these questions. Sir John A. Macdonald would be quite surprised to learn that the Supreme Court of Canada has declared that the Constitution of Canada is silent on secession, particularly as he was one of the actual drafters of the BNA Act, and he is also accredited with having drafted 50 of the 72 Quebec Resolutions that led to Confederation. He was a masterful drafter and in his drafting wrote no silence on secession into the BNA Act. The BNA Act created a Dominion Parliament with these full plenary powers, the powers of a sovereign parliament, and named its lower house after the United Kingdom's House of Commons. In addition, by its express provision, Section 18 gave the Parliament of Canada the judicial powers of a parliament as the High Court of Parliament. Section 18 states, in part:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons,...those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom...

In addition to receiving many United Kingdom acts, the BNA Act section 18 also received into Canada the United Kingdom's ancient law of the ancient parliament called the Lex et consuetodo Parliamenti, the Law of Parliament, of which the courts are ordered to take notice judicially. This ancient and undoubted law included the powers and privileges of parliament to adjudicate and sentence its own members or other high persons, or anyone, for treasonous activities. It enacted impeachment and attainder by parliamentary proceeding, particularly for its own members and for all those so powerful as to be incapable of trial in the ordinary courts. Impeachment is trial by the High Court of Parliament. Bills or acts of attainder legislate the results of parliamentary proceedings including conviction, sentence, disinheritance of titles, loss of rights, and even loss of life.

Honourable senators, section 31(4), section 18, and the Oath of Allegiance provisions of the British North America Act, 1867 are the current law. The BNA Act, for sound reasons, enacted attainder and impeachment in this Upper Chamber for treasonous senators or senators adjudged of treason.The BNA Act received the Law of Parliament, Lex Parliamenti, into Canada and also enacted certain of its aspects. The BNA Act intended harsh consequences for treasonous senators. Therefore, the Senate, in a Senate proceeding, could attaint a senator for treason. Attainder for treason has some stern results. The British North America Act, 1867 gave the Parliament of Canada a superintendence over treason, and an especial role to the Senate. Honourable senators, treason is what the Parliament of Canada says treason is.

Honourable senators, I oppose this motion because I do not support the contention that the BNA Act is silent on secession, and that this fact, after 130 years, has only suddenly now been revealed. The BNA Act's express provision provides no basis for Bill C-20, and consequently provides no parliamentary basis for a motion to establish a special committee on Bill C-20.

The Supreme Court of Canada in its August 20, 1998 opinion in the Reference re: Secession of Quebec said that the Constitution of Canada is silent on secession. This opinion is misleading and menacing. The British North America Act was not silent on secession. It was virulently opposed to secession. Its express provisions forbid secession. The act viewed secession as treasonous. This BNA Act treated secession, separation, disunion or national dismemberment as the political and parliamentary crime of treason, more than the criminal offence of treason. The British North America Act, 1867 is not silent on secession. The Supreme Court of Canada was silent on treason and silent on Parliament's enacted, also ancient, duty against treason. Treason, the parliamentary offence is in force in the Constitution Act, 1867 and in the Law of Parliament. By the BNA Act, disunion, dismemberment, and the dismantling of Canada was treason. The BNA Act by express provisions conferred on the Parliament of Canada the duty of superintendence over treason, over the union of Canada and over Canada's sovereignty and existence as a nation, a superintendence over Canada's indivisibility.

Honourable senators, I oppose this motion because it asks me to be wilfully blind to the law and ignore the BNA Act's express enactments forbidding the disunion of Canada.

I move now to the BNA Act's provisions about superior court judges.


Section 99.(1) enacts that judges hold office during good behaviour, as do many high office-holders. The words "during good behaviour" have a particular constitutional origin and meaning. Judges, too, have a duty of allegiance to Canadian sovereignty. They also have a duty of vigilance against treason. For this reason, the BNA Act gives Parliament the superintendence of judges.

Section 99.(1) states, in part:

... the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

Senate addresses for removal of judges and high office-holders for non-good behaviour are unique. Parliament, in particular the Senate, is the constitutional watchdog of Canada's sovereignty. It was for those reasons these powers were given to Parliament.

Honourable senators, my survey of allegiance, sovereignty, and Parliament's enacted duties necessitates mention of a few other express provisions of the British North America Act 1867. These provisions speak plainly to the indivisibility and oneness of Canada. Its preamble states:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: —

One dominion means that — one nation, one indivisible nation. The BNA Act was a very well-drafted act. The actual drafting received great attention, not only from Sir John A. Macdonald but from an exceptionally skilled draftsman named Lord Henry Thring. They chose the word "one" deliberately. This word "one" is again repeated in other sections of the BNA Act. For example, the word "one" is repeated in sections 17 and 102. About the Parliament of Canada, section 17 states:

There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

There is one dominion, there is one Parliament. Senators should take note of the word "one."

About the revenue fund, section 102 states, in part:

...One Consolidated Revenue Fund ...

Taken together, there shall be one dominion, and one Parliament, with one Consolidated Revenue Fund for the one nation, Canada. The BNA Act is loud and clear. It is not silent.

Honourable senators, I have read a great deal about the development of the legislatures into the Parliament and the bedeviling problems it caused Sir John A. Macdonald and the Fathers of Confederation. About this, Sir John A. Macdonald had to do a great deal of talking to persuade a great many on the Imperial side of the ocean.

Honourable senators, I oppose this motion because my agreement to this motion would at the same time be my agreement to the committee result. The government by this motion seeks to obtain a particular committee result from this special committee by simply selecting members on the basis of whether or not they will give the results that the government wants.

I contend that there is no legal, constitutional basis for the disunion of Canada or for the secession of any province. No government of Canada or a province has a prerogative to negotiate secession. There is no such prerogative. I have studied the Royal Prerogatives extensively and there is no such prerogative. Secession is not a proper legal or constitutional function of the Government of Canada or of the proper function for the appropriation of its tax dollars.

The first objective of the Constitution, and the government, is to preserve the Constitution and the country. Canadians have a constitutional right to a Parliament, a cabinet, and a Queen whose first duty under the law is to preserve a state of affairs where society can be conducted without interruption, without division, that is, the words of section 91 of the BNA Act "for the Peace, Order and good Government."

The British North America Act, 1867 condemned treason by its express provisions. It upheld unity and sovereignty by its express provisions. The BNA Act was intended to protect citizens in the integrity, safety, security, intactness and continuity of their political community of their body politic, that is, of their country. Sovereignty is indivisible. Sovereignty is inalienable. In a constitutional monarchy, the principle was that "the King never dies." The human body of a king may die, but the royal character and the realm, the kingdom, continues. I ask honourable senators to think of the old expression, "The King is dead, long live the King!" The kingdom is forever.

Further, no king has any Royal Prerogative to end the kingdom. I ask honourable senators to reflect upon what Sir John A. Macdonald and the Fathers of Confederation used to say. They said that they were constituting in the BNA Act a Senate that would last as long as the country Canada was a nation. They did that because they understood a great deal about politics and human beings. They also understood the constant threat of secession from south of the border, the raids back and forth and the constant attacks under which Canada lived in fear for many years.

Minister Stéphane Dion has had much to say publicly about the abolition of the Senate. Many believe that he wants to abolish the Senate because it is an appointed chamber. Many people believe that he was sort of appointed to the House of Commons. It seems that Bill C-20 springs from his fancy because no one can tell us the constitutional legal authority on which the bill, or any of these actions, is based. All they can say is, "The Supreme Court of Canada said..." However, the Supreme Court of Canada told us that the express enactments of the BNA Act are misleading. If they would say that the law is misleading, then upon what have they relied to come to these conclusions, which they then turned around to say are legally binding on the Government of Canada?

I hope that we will get a chance to put these questions to Minister Dion. Law is something that should be clear, obvious and known to us. It is not some obscure mystical concept that is hidden away and only known to be discovered by two, three, four or nine people.

Some years ago, in this very chamber, there was a disagreement between some senators and the then minister of finance Donald Fleming. The issue of the disagreement was the then governor of the bank of Canada James Coyne. Disagreeing with Minister Fleming, because the Liberals here took up the cause of the then governor Coyne, Liberal senator Adrian Hugessen described one aspect of the many disagreements. During debate on a bill on July 8, 1961, Senator Hugessen, when asked what he would have done, said, at page 1069 of Hansard:

I know what I would have done. I would have told the minister to go to hell. That, in effect, is just what the governor did, though I must admit he used more polite language.

Honourable senators, I oppose this motion. I feel very strongly about my right and ability to serve as a member on the Legal and Constitutional Affairs Committee to study the issues. Quite frankly, I feel that I have earned that over several decades now of loyal service to this party and this chamber.

Honourable senators, I do not speak about race. However, I shall just say that I am getting tired of being overlooked. It seems to me that every newcomer can come to this chamber and become members of the committees that they want to become members of, and to chair whatever committees they want to chair. I just serve and serve and serve.

I believe it was Milton who said something about "they who wait." I wait.


I do not mind waiting because I really do believe in this process that we call Parliament, which is why I find Bill C-20 so very offensive.

Honourable senators, one must understand that I grew up in a colonial community that always pointed to the United States of America and said, "You see, they settled slavery over there by civil war. We settled it over here by Parliament." The name William Wilberforce was held up to me as an icon. I did not grow up in a time when children's idols were hockey stars, movie stars and various other kinds of stars. The personalities that were held up to me when I was a very little girl were the Shaftsburys, William Wilberforce and Thomas Clarkson, all abolitionists.

Honourable senators, I believe very strongly that these committees should not be constituted at the whim of government. The Speaker and Senator Hays were earlier talking about Speakers' rulings. We are considering the rules of the Senate every day. If these questions cannot be settled by the individual conscience of leadership, we may have to go the route followed by other jurisdictions where chairmanships of committees are awarded based on years of experience. Many jurisdictions make decisions in that way.

Honourable senators, my natural instinct is always the parliamentary instinct, the British instinct. I serve here alongside you because I believe these institutions are of enormous inherent value, and that is the problem with this bill and this motion.

This motion is very quietly seeking to overturn a motion passed last November. Last November, the leaders on both sides asked for the agreement of senators on which individuals should serve on which committees. The Senate made its judgment at that time as to which senators should become members of those committees.

Honourable senators, I find this motion unacceptable and I have no alternative but to say so. I am in a position that many senators here do not find themselves in. Many people want to know my position on these issues.

Honourable senators, it is incumbent upon every generation of leadership to treat these institutions and processes with gentle care in order to preserve them for future generations. I ask honourable senators to consider whether, through this motion and Bill C-20, we are handing this institution on to future generations.

Senator Kinsella: Would the Honourable Senator Cools entertain a question?

Senator Cools: I would be happy to take questions.

Senator Kinsella: In the earlier part of her speech, I understood Senator Cools to say that this motion was motivated by an attempt by the government to circumvent her participation as a member of the committee that will examine this legislation. Has she evidence of that attempt that she could share with this chamber?

Senator Cools: Honourable senators, I was speaking to the intended results of the motion. I do not recall saying words like "motivation." I do remember saying the word "motion."

Whatever evidence I have, I would never put on the floor of the chamber because of the depth of my feelings for this institution. Some issues are Senate issues, some are parliamentary issues, some are caucus issues, and some are issues of conscience. However, I believe that at this point in time these issues are confused. Perhaps, over time, we can debate these issues and clarify them.

Senator Kinsella: Would the Honourable Senator Cools give us her view on whether it would constitute a breach of privilege of a senator and, therefore, a breach of privilege of this house if the government picked on a member of this house by deciding not to send a particular legislative initiative to a particular committee because that senator were a member of that committee? In her opinion, would that constitute a breach of parliamentary privilege?

Senator Cools: There are definitely questions of privilege. The only problem with questions of privilege is that no one knows what they are any more. Jurisdictionally, Canada has been the most negligent in developing jurisprudence on the question of members' privileges. Within Canada, the Senate has produced the least jurisprudence. There has been a reluctance not only to examine privilege but to uphold and defend it. In the 16 years during which I have been a member of the Senate, this institution has come under the most ghastly and scandalous attacks. Yet, I have repeatedly seen a reluctance by the Senate to defend itself.

On Senator Kinsella's specific point, in 1997, when we were studying Bill C-41 dealing with changes to the Divorce Act, the chairman at the time, Senator Bosa said publicly in the newspapers that he wanted to try to organize my ousting from a committee.

Let us make no mistake. We do exist in a party system, and I think a party system is valuable and should be maintained. However, there is a balance between the party system and the parliamentary system, and they are two different systems. Yes, we rely on party leaders in this chamber to recommend senators for membership on committees, but we sometimes forget that in the long run these decisions are made by orders of the Senate. The real problem arises when, in the name of loyalty, unquestioned acquiescence and obedience is asked for, quite often at the expense of trampling rights and privileges. At some time we must find a way to balance and clarify these interests. It is a very troubling question.

As I have said, I am not pleased. Furthermore, I think the situation is unfair and unjust.

Hon. Lowell Murray: Honourable senators, Senator Cools stated in her speech and repeated in reply to the question from Senator Kinsella that the decision by the government to bypass the Standing Senate Committee on Legal and Constitutional Affairs and propose the establishment of this special committee was taken so that the government could obtain the results that it desires from this committee process. If she is unwilling to tell us what her evidence is for that statement, we will understand. However, without breaking any confidence, I think she can tell us what outcome the government desires. Specifically, is she stating that it has already been determined that no amendments will be permitted to pass that committee?


Senator Cools: Honourable senators, this is a very troubling matter. I should like to go at this perhaps by referring to our own record here a few weeks ago. If one will recall, a few weeks ago I spoke on the floor of this chamber and referred to particular newspaper articles that were not only able to refer to the existence of a special committee but also to the chairmanship of the committee. In that exchange, I remember that Senator Kinsella, as an aside, said, "Does the media have a copy of the report?" At the time, I sort of chuckled and let that particular statement go by.

The fact of the matter is that the government wants the bill passed without amendment. That happens quite often. The particular problem in this instance is that large numbers of senators, on both sides, have stated that they have some problems with the bill.

We come to the essential question: What is service to the party, and what is loyalty worth in terms of being able to influence decisions that are made across the road in the PMO? When I first came here, Senator Roblin was the leader, and then Senator Murray became leader. One was always told, "This is the system. One should not expect to chair Banking or get on Foreign Affairs until one has served for so many years." I must now discover whether it is the system or not, and whether it is the process or not.

My understanding has always been that party loyalty means more than one or two people making a declaration and then demanding allegiance to it from party caucuses. My understanding of responsible government is that there is a give and a take and that there is an exchange of loyalty back and forth between leader and follower. That is my understanding.

I should like to share with you an anecdote I remember reading about C.D. Howe. He once referred to perhaps his first experience in caucus, or something like that, where apparently Mackenzie King rose at the end of caucus and summarized the consensus. Apparently, C.D. Howe sprung to his feet, and said, "No, Prime Minister, that was not a consensus at all." Somewhere, in one of the beautiful books that was written by one of the many members, there is a line where C.D. Howe says, "I learned very quickly that when the leader said it was consensus, it was consensus."

I think we must deal with the fact that party politics as we have known it in this country is changing. Party politics as I used to know it may be a thing of the past.

The Hon. the Speaker: Honourable senators, the 30-minute additional leave period has expired. Are there other speakers?

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I should like to speak on this motion. Much of what I would have suggested has been confirmed by Senator Cools, so far not denied, that the special committee is being proposed basically if not exclusively to exclude from voting privileges certain members on the other side who have expressed, in this chamber, and perhaps elsewhere, some thoughtful and serious arguments questioning parts of the bill and the bill itself. It is unfortunate that those senators will not be allowed to continue their argumentation in front of witnesses at the standing committee of which they are members. However, they will, if the special committee is formed, be allowed to attend and participate in the debates. Therefore, whatever the purpose of the special committee, a purpose that has never been stated by the deputy leader, it will really not be realized.

I find it strange, too, that we are being asked to create a special committee to consider a bill in which the Senate's role is reduced to that of an unwanted consultant, in effect giving the bill special prominence while our role in it is extraordinarily limited. Meanwhile, the House of Commons is called upon by the bill to play a very crucial role, and it found it quite proper to send the bill to a standing committee. Here we are with a reduced role being asked to give special status to the bill by the creation of a special committee while the House of Commons with a crucial role sent it to a standing committee.

It is essential that the expertise found on the Legal and Constitution Affairs Committee be available to those who will be called on, in the end to decide, on the fate of this bill.

I find it rather — I do not know if the word is "insulting" - certainly demeaning to the members who have already been named to sit on this committee to know that they have been asked, in large part, because they are in agreement with the bill. Apparently amendments will not be accepted, if I understand the question asked by Senator Murray and the answer given by Senator Cools. I would hope before the end of this debate for some clarification on the role of this special committee and on the role of the proposed members on the government side. If they are to be rubber stamps to do the bidding of the government, more or less blindly, it will be left up to the opposition members, if they agree to serve on this committee to do the work that both sides should be doing.

I hope that we are not adopting some of the practices in the other place where the government deliberately chooses members on committees to hasten the passage of bills. It is done openly and deliberately. Ask any government caucus member over there. Why we should be drifting to that direction is beyond me. It is unnecessary. We work on committees here in a collegial fashion. I sense that in this case there are firm instructions being given to the government side that will have a very negative effect on the deliberations.

I do feel very strongly that the Standing Senate Committee on Legal and Constitutional Affairs, which is being shunted aside, should have a role to play in the assessment of this bill, and that is why I want to end by proposing the following amendment.

Motion in Amendment

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, in addition to the present motion, or as the last paragraph, I move, seconded by Senator Robertson:

That upon completion of its report and prior to its tabling in the Senate the Committee forward the report to the Standing Senate Committee on Legal and Constitutional Affairs for opinion and comment on the Bill, in particular its constitutionality.

I also have a recommendation for the deputy leader. The motion reads that four members constitute a quorum. The figure four is not in question, but it could be, if left like this, four members of the government side or four members exclusively from the opposition side. It should read, and I am just suggesting the wording, that four members constitute a quorum that must always consist of at least one government member and one non-government member. I believe that is the practice with committees, and that it is essential that the wording be in the motion. I should like that to be a government amendment, so I do not make a motion as such but rather a recommendation.

The Hon. the Speaker: Honourable senators, it is moved by the Honourable Senator Lynch-Staunton, seconded by Honourable Senator Robertson, that the motion be amended by adding:

That upon completion of its report, and prior to its tabling in the Senate, the committee forward the report to the Standing Senate Committee on Legal and Constitutional Affairs for opinion and comment on the bill, in particular, its constitutionality.

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

Some Hon. Senators: No.

Some Hon. Senators: Yes.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, we have an order of the house to vote on this motion and all amendments at six o'clock today.

I should like to speak to Senator Lynch-Staunton's amendment, and perhaps other senators will wish to comment as well.


I have listened carefully to the interventions. I should like to comment generally, first, and then address the specifics of Senator Lynch-Staunton's amendment.

The main thrust of the two interventions is that the committee membership on the special committee, which is recited — and it did not have to be recited, but it was recited in the motion and reflects the names being put forward by the government side —  is, in some way, inappropriate or designed to prejudge the result of the committee's work by virtue of the people who will serve on the committee. That is a disservice to the people whose names are listed there. I think they all have a measure of independence and they are all capable of making up their own minds on what they wish to do.

I shall concede that, from the viewpoint of the government side, it was not our purpose to seek a set of names of senators who would be opposed to the bill. We have this unusual situation where there are some senators not only, as I interpret it, on the opposition side but also on the government side who have a desire to defeat or to amend the bill. Why we would put members forward who have that intention is a good question, and it is one that is raised in Senator Cool's comments.

Next, I wish to refer to the rules on committee membership, to support why I do not believe there is a good cause to complain.

Rule 85(4) and (5) of our rules state:

(4) Subject to subsection (5) below, a change in the membership of a committee may be made by a notice filed with the Clerk of the Senate who shall cause such change to be recorded in the Journals of the Senate.

(5) The notice referred to in subsection (4) above shall be signed:

(a) with respect to Government members, by the Leader of the Government in the Senate or any Senator named by that Leader;

Normally, it is the whip. The next paragraph states:

(b) with respect to Opposition members, by the Leader of the Opposition in the Senate or any Senator named by that Leader.

This envisages that membership on committees — whether it is a standing committee, such as the Standing Senate Committee on Legal and Constitutional Affairs of which Senator Cools is a member, or a special committee — can be changed. For instance, the matter could be referred to the Standing Senate Committee on Legal and Constitutional Affairs and Senator Cools could be replaced on the committee with a simple signature of either the Leader of the Government or his designated person. The fact that it is a special committee does not make any difference, in terms of picking the senators who will deliberate. Senator Lynch-Staunton's point is a good one. That is common practice in the other place but it is not common practice here, nor do we want it to become common practice here.

Why is it done that way? It is done that way because, in my opinion, the leadership of the two parties that form the membership of this place, with the exception of the independents, who are not party members, have a responsibility to be responsive to their caucuses. If the rule is being misused, then the caucus will act appropriately and chasten the leadership or change the leadership, or do whatever is necessary to ensure that what is being done by either the government side or the opposition side is consistent with what will happen.

Honourable senators, I put it to you that, while it is not the unanimous position of this side, what has been put forward in the motion proposing a special committee does reflect what the caucus on this side wants to do. I do not want to get into confidential matters that take place within caucus. That is my general comment.

I do not have Senator Lynch-Staunton's amendments in front of me, so I may not do them full justice by going from memory. One of the amendments that Senator Lynch-Staunton proposes would have whatever the special committee might do — that is, assuming it is formed, the bill is referred to it and it reports back —referred for further consideration to the Standing Senate Committee on Legal and Constitutional Affairs for opinion and comment on its constitutionality. I would not support that amendment, because that is something well within the power of the special committee to do. I am sure that membership on the other side and, for that matter, membership in the special committee — that is, if it is created and if it receives Bill C-20 —  are well able to decide, as is this chamber, whether that work was well done and whether the committee has expressed its opinion on the question in a satisfactory way. In simple terms, that is why I would not support that amendment.

Then we had the issue of a motion sort of instructing the committee, in a permissive way as opposed to an approved mandatory way, to actually develop such an amendment. We, on this side, objected to that approach. Some of the reasons for objecting to that approach would apply here as well. I shall not repeat them.

In terms of the concern about the quorum — not so much its size, but the appropriateness of simply saying "four members constitute a quorum" and there being no necessity of one of those members representing either the government or the opposition —  I have some sympathy with that argument. While I do not have an opportunity to consult with my leader on this, or others, I do not see any problem — and I guess I speak for the government here — in agreeing to that. I think that could be a practice of the committee. Perhaps the honourable senator is satisfied with that. If not, I shall speak to the Deputy Leader of the Opposition with respect to this matter to see if we might be able to resolve that concern. I shall deal with any questions that honourable senators may have, but we will see what we can do to accommodate that concern.

Hon. Anne C. Cools: Honourable senators, could Senator Hays give some clarification? He said that the situation is not really different. If there is no difference, then why do we need a special committee at all? The conclusion must be that Senator Hays has asked the chamber to agree that it does not have confidence in the Standing Senate Committee on Legal and Constitutional Affairs. That is an inescapable conclusion. That is my first point.

Second, Senator Hays cited rule 85(4) and (5), which speak to the question of changes in memberships, but, Senator Hays, in so doing overlooked two important words. Those changes in membership go on daily, as senators substitute for each other. The critical words that he omitted in that case are "with consent." The process clearly states that the Senate chamber, as a whole, is the determining agent or power that enables members of a committee or a committee to be constituted. Once that power has moved into operation, in the in-between time, with the consent of the individual senators, there may be changes.

However, if Senator Hays as leader, or if, on the other side, any leader attempted to move a committee member without his or her agreement, I assure Senator Hays that the matter would have to be returned to this chamber. The final arbiter of membership on committees is this chamber.


I have one other observation. The leaders speak frequently to each other on the floor of the chamber, and we quite often hear the word "negotiation." Referring to Senator Kinsella's question, it is very important to assert again and again that the privileges and the voting rights of senators are too valuable to be traded away by negotiation between two leaders.

This system is so bad that, in some jurisdictions, the leaders are opting to vote en masse for all their members. I am not sure, but I think that such a recommendation was put to the House of Commons a couple months ago. The system is moving in that direction in some jurisdictions. It seems to me that as honourable senators, if we dare to use that term — and if we call ourselves honourable, which comes from the Royal Prerogative — we have a duty of diligence to this place. The first duty, as I said previously, is to uphold the process in and of itself.

Senator Hays: I refer the Honourable Senator Cools to the speech that I gave in support of the motion. That speech gave my reasons for going to a special committee. There were a number of matters raised in my speech that went a long way toward, if not satisfying the honourable senator, answering the question on why a special committee would serve us better than simply referring it to the very busy Standing Senate Committee on Legal and Constitutional Affairs.

In regard to the second point made by the honourable senator, on change of membership, I do agree. If the government, or the opposition side for that matter, operates in an unfair and high-handed way, that would be noticed and that would create a response, probably led by the person who had not been treated well.

I cannot agree, however, that the Senate is the determiner of membership. If we, on this side, wanted to use our majority to determine who should represent the opposition on this or any other committee, then that would be unacceptable. I do not know if there is a rule or not. However, I would not envisage even trying to do that, nor would I expect the other side to determine the membership. It does come back to the whole chamber as to who should sit on a committee.

Honourable senators, while I am on my feet, I should like to touch on one other point that has been raised. I thank my predecessor, Senator Carstairs, for this, and I shall raise it with Senator Kinsella. In terms of a quorum and the ability of the committee to meet, the one thing that we do not want to do is have the committee unable to meet simply because a member of the government or of the opposition is not present. Perhaps, we can build a time frame into that. In other words, if there is no member of the opposition or the government present, perhaps that committee could wait an hour before proceeding to ensure that the committee does proceed in a way that is reasonable in terms of both sides being present to hear evidence or to make determinations.

Senator Lynch-Staunton: Honourable senators, I rise with a question for the Honourable Senator Hays. He referred to his remarks last week in support of the motion. The main argument he gave was that the agenda of the Legal and Constitutional Affairs committee between now and the summer recess was so full that it would be unfair to burden that committee with this bill.

I notice amongst the proposed names on the government side is that of Senator Milne, who is the Chairman of the Legal and Constitutional Affairs Committee and whose diligence and hard work are appreciated on both sides. Would the deputy leader not be imposing an extra burden on her by also having her sit on this new committee?

Senator Murray: Shame.

Senator Kinsella: Discrimination.

Senator Lynch-Staunton: Does the deputy leader not feel that the work that Senator Milne would contribute to her committee is enough and that another senator should substitute for her on the new committee? If what the deputy leader said about that committee's work is accurate, Senator Milne will be hard pressed to satisfy the new obligations that will be imposed upon her.

Senator Hays: Senator Milne will, of course, speak for herself in terms of her time. She is a respected chairman of the committee. A number of comments have been made in debate that the views of that committee and its expertise should be represented on the special committee, and this is a way of accomplishing that. If, in fact, the burden is too heavy for Senator Milne, she would let us know and we will find an appropriate replacement for her.

Senator Cools: I would make that offer.

Hon. Douglas Roche: Honourable senators, this motion troubles me for two reasons. First, and I suppose this may be minor, it seems to me that the decision of the Senate to strike a special committee, even before the passage of Bill C-20 on second reading, is premature. It anticipates that the vote would indeed be positive. I am concerned about good order in that respect.

The Hon. the Speaker: I regret to interrupt the Honourable Senator Roche, but there is a motion in amendment proposed by Senator Lynch-Staunton. I believe that Senator Roche is speaking to the main motion and not to the amendment.

Is it the wish of the Senate that I hear discussion on the main motionand discussion on the amendment at the same time?

Senator Hays: Agreed, otherwise they will not be heard.

Senator Roche: I shall mention Senator Lynch-Staunton's amendment in passing.

The vote that I shall cast on Senator Lynch-Staunton's amendment and the motion as a whole will be the same vote because of that presumptive treatment.

My second concern regarding this motion deals with the composition of the special committee as set out in the Order Paper. Nine Liberal members have been named. Fifteen members will compose the committee. That leaves six members unnamed. One assumes from the debate that it is expected that the Progressive Conservative Party would name the remaining six members. It would be for them to decide.

However, we are in the strange position of being asked to vote to strike a committee with only part of the membership of that committee established. In other words, we would be voting in a vacuum, without knowing who would be the other six.

Honourable senators, I find that rather strange. It is, again, a reflection of the prematurity argument that I introduced earlier.

I am now forced, in diligence to my position as an independent senator, to make the point that, once again, independent senators will not be considered for membership on this committee, in addition to every other committee. It is precisely because of the importance of the subject matter of the bill in question —  namely, the future of our country — that I feel it necessary to say that in my humble view it is wrong to exclude, ipso facto, certain members of the Senate from consideration of being members of a special committee by virtue of the fact that they do not belong to party caucuses within the Senate.


Honourable senators, I should like to ask: Where does it say in the Senate rule book that a senator must be a member of a party caucus in order to serve on a committee? Where does it say in the traditions of the Senate that one must belong to a party caucus in order to serve on a committee? Where does it say in the Constitution of Canada that the appointment process of senators must be within party confines? Of course, the answer to the three questions that I have posed is: nowhere.

In fact, honourable senators, in all but one of the 13 decades of the life of our country and the existence of the Senate as we know it, independent senators played a role — indeed, an important role. Some were even chairmen of committees. Then, at the beginning of the 1990s, a period, of course, when I was not here and can only read about, there occurred a series of events that led to the present rule book and the present processes by which the Selection Committee accepts lists put forward by the two parties. I submit that this one decade in which we have been living this way in the Senate, of the 13 decades of the Senate, is an aberration and that it should be repaired.

Senator Cools ended her speech by talking about a view in the public that party politics has had too strong a say in the determinations of our country. Senator Lynch-Staunton, I believe, spoke about the collegiality that is necessary in order to make this place function effectively, or at its best. I think that it is wrong to maintain this aberration. It is coming very much to the fore in the present instance.

Honourable senators, I would not want the views that I am setting out here now to be construed as being in any way obstructionist. Indeed, were I able to be present on Thursday in this chamber for the vote on Bill C-20 itself, I would vote for the bill, for reasons that I explained in my speech on Bill C-20, which I shall not repeat now. However, I believe that, as this bill goes forward into committee study, if the deficiency in the bill concerning the Senate is not properly addressed, we will find great difficulty when we come to the third reading stage.

This argument has been greatly enlarged, it has been spoken about by many honourable senators, including myself, and thus I shall not dwell on it now, but I feel that the disenfranchisement of particular senators in this respect is not proper. I also hope that my remarks will not be construed as preaching for a call. I am speaking to the principle of the Senate, the principle of our country, and I believe this motion undermines that.

For those reasons, honourable senators, later this afternoon, when His Honour calls for the vote, I shall abstain.

The Hon. the Speaker: Honourable senators, if there are no further speakers, the question before us is the amendment. The original motion calling for the vote at 5:30 was on the main motion. Would it be agreeable to honourable senators that I put the amendment in with the main motion and that we deal with them at 5:30?

Hon. Senators: Agreed.

On motion of Senator Carstairs, debate adjourned.

Business of the Senate

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, under Government Business, I should like now to call, as our second item for discussion, resumption of debate on Bill C-20. It is Order No. 3.

Bill to Give Effect to the Requirement for Clarity 
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Second Reading—Debate Suspended

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, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

Hon. Terry Stratton: Honourable senators, I rise today to speak to Bill C-20, the Chrétien constitutional bill. Before I begin, I should like to say that I have never been more proud of this place and the role it plays. The quality of debate has been extraordinary, and I congratulate all those who have participated.

When I first heard of this bill, I was appalled, to say the least — appalled that a prime minister of Canada would lay out so-called ground rules for secession by any province in Canada, not just Quebec. The reaction on my part was visceral. Here we have a province calling a referendum with a so-called clear question. The results come in with a clear majority. The negotiations take place between the federal government and the province, and, of course, are unsuccessful. The province then goes to the international community and says, "Look, we tried," and then makes a unilateral declaration of independence. Then, guess what, there is immediate recognition on the part of several countries as to this UDI. Then what? What happens when that occurs? It is the fundamental question that this bill does not address.

Let us go back to the reasons this bill is now in this place — to 1995, to 50.6 per cent and 49.4 per cent, to a man who kept telling the country not to worry, to the absolute panic that took place during the last week of that referendum. Imagine what must have taken place in the PMO during and after this referendum. Put yourself in their place. What would you be thinking? What would you be imagining: Losing, being the man who presided over the breakup of this wonderful country, after you had told the people, "Don't worry, have a great summer"? If you were he, you would, of course, vow that this would not occur again. You have to have a little sympathy. After all, the day was saved because the Canadian people became involved. They saved the day — and not the man who was ultimately responsible, the "don't worry, be happy" man.

That is why we have Bill C-20, the Chrétien constitutional bill. This little history still reverberates in the minds of Canadians. In my view, this bill is simply a saving-face bill, to show Canadians that he is assertive, that he will, by the magic wand of legislation, prevent such an event from happening again.


I shall not attempt to address the legal or constitutional aspects of the bill, which have and will be addressed by others far better qualified than I. Eloquent speeches by Honourable Senators John Lynch-Staunton, Nöel Kinsella, and Serge Joyal are there to be read and absorbed. I wish again to thank them.

I should like to quote a part of Senator Lynch-Staunton's speech, where he states:

In a most extraordinary trespassing on the jurisdiction of Parliament and every provincial legislature, the Supreme Court gave legitimacy to separation, and now the government is using the Supreme Court as justification to confirm secession as a lawful objective.

As Senator Kinsella stated in his speech:

Where is the constitutional authority for this proposed legislation to be introduced here in Parliament? The advisory opinion of the court does not indicate any constitutional authority on which to base the legislation that has been introduced by the government.

My question is: Who does the PMO think they are — God?

Who is running this country? Let me guess. Could it be the Supreme Court and the PMO?

I should like to address the issues I outlined earlier. I shall take you through what I believe will be the process that may occur in the next referendum.

There is the matter of the question. Clauses 1.1 and 1.3 of the bill attempt to define the acceptance of the clarity of the question and, as stated in 1.5, the House of Commons, in considering the clarity of a referendum question, is supposed to take into account the views of all political parties of the province proposing the referendum, as well as the views of the legislature of each province and territory and, bless them, "any formal statements or resolutions of the Senate...and any other views it considers relevant."

That is awfully kind of them. Benevolent and elitist once again, they control the other place but not necessarily here, and that, I believe, is their great fear, regardless of the constitutional implications.

We have to do all of this in 30 days, no less. Imagine that process, if you will.

Then there is the matter of the majority. Clause 2(1) states, in part:

...there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be a part of Canada.

In 2(2):

...the House of Commons shall take into account

(a) the size of the majority of valid votes cast in favour of the secession option;

(b) the percentage of eligible voters voting in the referendum; and

(c) any other matters or circumstances it considers to be relevant.

As has been asked by many others, does a clear majority mean 50.6 per cent in favour of separation, or is it 51 per cent, or 60 per cent, or 67 per cent?

It simply matters on whose side you are on. Who decides —  the Supreme Court and the PMO? What if, again, the answer is no to secession? Does that end it once and for all? Should this bill not address that question?

Then there is the matter of negotiation. Clause 3.1 states, in part:

...therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada.

Can you imagine what would take place? Remember, as Senator Joyal has said, B.C., Alberta, and Manitoba must have, under their law, a referendum when it comes to constitutional reform.

Do you really believe that the Canadian people would put up with placing their futures, once again, in the hands of the PMO?

We have such short memories. Meech Lake, Charlottetown and the referendum of 1995 come to mind.

Of course, the negotiations would take a very long time. Consider the referenda that would have to be held in those three provinces, after public hearings. As a result, the Quebec government would go to the international community and say, "Look, we have tried for this length of time, and to no avail." Hence, the UDI, the Unilateral declaration of independence, with, immediately following, the recognition by friendly states and states that just want to create any instability they can, and we can easily name a few.

What then? Please tell me that there is a solution to be found in this bill or elsewhere, as I cannot see anything but dire consequences for the country.

This is not the way to go. While popular in the minds of Canadians at first blush, this bill is not the answer.

In my view, if you want to go this way, go all the way. Outlaw any referenda that have to do with the breakup of the country. That way, it would perhaps be more difficult for other countries to recognize a UDI, or, at least, as the Prime Minister earlier told Canadians who do not like our high taxes, "If you do not like it, get out of Canada."

What about the rights of the rest of Canada? What about the rights of the provinces? Where are they in this equation: bystanders, at best, in the negotiations, to watch and stand by while the Prime Minister negotiates the breakup of Canada?

What about the rights of aboriginals living in Quebec? What about those in Quebec who want to remain a part of Canada? Do you believe they would be given any choice but to leave if they did not like it?

This is not something that can be talked about and rationalized with statements and legalities. The simple fact of the matter is that, should a UDI occur and be recognized by other countries, do we not have to recognize the potential for civil disobedience? To state the unmentionable, do we not have to examine the potential for a civil war? What then?

Have we really examined what we are doing here today? Should we not talk about the unmentionable? Should we not discuss the potential impact it would have?

We are, after all, a gentle people. We do not discuss such things. Or do we? We owe it to the country to discuss this potential, the devastation that would occur, not only with the loss of lives, but the economic degradation that would occur, as we have seen elsewhere.

Canadians need to face that reality. However, I tread on eggshells here, and cracked ones at that.

Let us go back to the rights of the rest of Canada. Here we have one province wanting to leave and telling its people right now that they would run a surplus in their budget on separation. What of the impact on the budgets of other provinces? What of the impact on the economy as a whole and the value of our ever-diminishing dollar? Do the provinces not have a say as to the costs to them and a right to ask how these costs will be shared by that separatist government that will run a surplus upon leaving?

What of the aboriginals in Quebec, who, I should hope, do not want to leave the federation? They will want to remain a geographic part of Canada.

Again, what about the rights of those Quebecers who vote to stay in Canada? Do they leave Quebec, causing economic hardship to themselves — and who pays for that — or do they stay on the island of Montreal in a virtual ghetto?

The bill is silent on all of this. It remains for the federal government and PMO to determine the fate of Canadians. As was said during Meech Lake, what are we — chopped liver?

All this will be negotiated in a reasonable length of time, after a clear question, with a clear majority. If you believe that, I have some land that I should like to talk to you about that is ideal for growing bananas. The only problem is, it is up in Churchill, Manitoba, but we have global warming, after all.

We have to realize that the time frames imposed or implied in this bill are not achievable, to say the least.

Another devious part of this bill is the sheer brevity of it. It is, after all, only four pages in total; imagine, four pages, including the front and back sheets, defining the breakup of Canada.

Let us get positive for a moment.

Canada is, for all of us, the most wonderful place to have the good fortune to be living in, to spend our lives, to raise our families. It is a land of wonder to me, wonder at its vastness and its incredible diversity, both in geography and people.


The greatest wonder is how Sir John A. Macdonald put it all together and how it has remained together since. Despite the strains between the regions, history has shown that the country works — awkwardly, to say the least. As has been said by others in this place, Canada is one and indivisible. It is our responsibility to ensure that it remains indivisible, and we cannot do that by passing a bill that helps to determine its breakup.

The ultimate responsibility for separation of any province must lie in the hands of the people of Canada. We, the so-called elitists, have tried in the past to take this responsibility and have been rejected on more than one occasion by these same Canadians. To believe that the so-called elitists can conclude and sign the negotiation of the separation a province will cause an absolute uproar.

You say that the other place has the final say. Yes, we have seen them work. Anyone who places their trust in the outcome not being determined by the majority in that place, and hence the PMO, is not correctly reading the mood of Canadians on an issue such as this.

This event must be carried out at the will of the people through a national referendum approving any separation negotiated by the PMO. To do otherwise would risk all.

As I stated earlier, Canadians are a gentle people. We do not particularly like confrontation. We evolve, as most working democracies, over time, with a great deal of patience for all regions and for all diversities.

I believe that many senators do not want to give this bill approval in principle. Many senators are concerned by the argument raised against this bill on both sides of this chamber. Many senators would like clarification of the issues raised in this debate through hearings in a committee, without having previously approved the principle of the bill.

Hon. Sharon Carstairs (The Hon. the Acting Speaker): Honourable senators, I regret to inform the Honourable Senator Stratton that the allotted time for his speech has expired.

Senator Stratton: May I have leave to continue?

The Hon. the Acting Speaker: Is leave granted to allow Senator Stratton to continue?

Hon. Dan Hays (Deputy Leader of the Government): Could the Honourable Senator Stratton indicate how much more time he would require?

Senator Stratton: I have a page and a half left in my speech.

Senator Hays: Perhaps we should grant leave for a one-half hour extension.

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

Hon. Senators: Agreed.

Senator Stratton: Thank you, senators.

Honourable senators, supporting the motion that I shall now put before the Senate would allow exploration of the subject matter of Bill C-20 without having approved in principle a bill which may be unconstitutional, which may violate the constitutional practices in Canada, and which omits one of the two legislative chambers in the Parliament of Canada from exercising a crucial role in relation to the question of the separation of a province from Canada.

Motion in Amendment

Hon. Terry Stratton: Therefore, I move, seconded by the Honourable Senator Lynch-Staunton:

That the motion for second reading of Bill C-20 be amended by deleting all the words after the word "that" and substituting the following therefor:

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 Secession Reference, be not now read a second time but that the order be discharged, the Bill withdrawn and the subject matter thereof referred to the Standing Committee on Legal and Constitution Affairs.

Of course, should a special committee be established to deal with Bill C-20, this motion will be amended accordingly.

The Hon. the Acting Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: No.

Hon Dan Hays (Deputy Leader of the Government): Honourable senators, I should like to speak to the motion in amendment, as perhaps would other senators.

Honourable senators, this is a hoist motion and would, in effect, serve to defeat the bill. I have not spoken to the main motion, but I shall speak very briefly to this motion in amendment to disagree with my colleague the Honourable Senator Stratton in his opposition to the clarity bill.

In his speech, Senator Stratton said that he has observed that this bill has been well received by the public, as I have observed as well. I believe that the experiences of 1995 and 1980 were such that the public of Canada considers this bill to be an essential part of a government strategy in dealing with a future referendum, which one can almost guarantee will be based on a question carefully devised by pollsters to elicit the answer desired by the government posing the question.

In 1980 and 1995, the Government of Quebec represented a minority of those people. The majority spoke, more loudly in one instance than the other, and said no. The "no" may be considered weak in both cases if one accepts the proposition that 50 plus one is not a sufficient percentage in a referendum to prompt the breakup of a country.

I believe it is essential that the Government of Canada have this legislation on the books, first, to assist in discouraging a provincial government from putting such a question, because the bill says that the question must be clear, and, second, to deal with the situation in the event that a government proceeds to do that.

Honourable senators, the vote on Bill C-20 is scheduled for Thursday. In the interests of ensuring that senators who wish to speak to this item on our Order Paper have the opportunity to do so, I suggest that we agree that senators can speak to the main motion as well as to the amendment and that they be voted on in the traditional order.

The Hon. the Acting Speaker: Is it agreed that honourable senators be allowed to speak to the motion in amendment as well as to Bill C-20 and that the votes on both will be taken on Thursday?

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I believe it has been our tradition that when the Chair is putting a motion to the house, the senator in the Chair rises. I may be incorrect. Perhaps the senator now sitting in the Chair will consult with the clerk on that point.

Honourable senators, I agree with Senator Hays, if I understood him correctly, that when debate on the amendment is concluded, the vote on it will be deferred until Thursday when the vote on the main motion is held.

With regard to the amendment proposed by Senator Stratton and seconded by Senator Lynch-Staunton, I disagree with my colleague the Deputy Leader of the Government that this is a hoist motion. I do not believe it is a hoist motion. A hoist motion is a motion to defer a bill for a defined time. This motion proposes that we accept the argument advanced clearly by Senator Joyal, that being agreement with the objective stated by the government.


He did not agree that the legislative measure, Bill C-20, that is before us will achieve the government's objective. In other words, we are faced with a determination that the objective of the government provided for in the presentation of the bill cannot really be achieved by this bill. The motion that we have before us now is to agree that the objective of the government is supported, that the subject matter of the bill that rests on this objective be submitted to the committee, and that our committee will write a proper bill to achieve the government's objectives.

We are not opposed to the objective of ensuring the integrity of Canada or of ensuring, if there is a referendum, that there be clarity. We are not opposed to clarity. To be opposed to clarity would be anti-intellectual. Everyone is in favour of clarity.

We are concerned with a number of principles that we believe to have been not intended by the drafters of this bill. We believe that they did try to follow the guidance given and the principles outlined in the advisory opinion of the Supreme Court in the Quebec reference case. However, in actual fact, if you read paragraphs 100 and 101 of the advisory opinion, the bill, in its second preambular paragraph says, for example, that it would be for elected representatives to determine the clarity of the question and a clear majority. The court did not say that. The court said that it would be for political actors. The drafters have let the government down, and it is in black and white. I think it would be very easy for the committee to correct that, to bring what is clear in black and white in the advisory opinion of the court and what is written in the bill to say the same thing. Right now, they do not say the same thing.

Furthermore, it is my opinion that the Government of Canada has no intention of seeing Canada broken up or torn apart. I would find it very hard to believe that the Government of Canada fundamentally accepts as an objective the breakup of Canada. However, the way it is drafted, the procedure and the steps that are laid out in this bill would give statutory expression to the breakup of Canada. I argued that Parliament only has the mandate to pass laws that, in the judgment of the two Houses of Parliament, are in the public interest of Canada. I believe that it is a prima facie, obvious proposition that the breakup of Canada is not in the public interest. Therefore, I find myself unable to ascertain where Parliament has the authority to pass a law that would lead to the breakup of Canada, which is exactly what the words to be found in Bill C-20 lead to.

Therefore, attempting to be creative, attempting to do the right thing, not only in terms of the institutional relationships of our bicameral Parliament but also for us as senators, to secure and maintain the integrity and the unity of Canada, Senator Joyal very calmly laid out for us that the present bill in his analysis is resting on premises that speak to the divisibility of Canada. He, on the other hand, was careful to point out that there is an objective, which is the unity of Canada, to which he wishes a piece of legislation be brought forward. I share that objective.

This motion is doing nothing more than saying, "Send this subject matter to the committee and let the committee examine that subject matter and report back to this house with a legislative proposal that will achieve the government's objective, that will rest upon principles of the indivisibility of Canada, that will rest on the principles of democracy, federalism, the rule of law, and the protection of minorities."

Those are the principles that the Supreme Court identified in its advisory opinion, principles that are also the cornerstone of the great federation of the United States of America. Their Supreme Court, in the case of White in the 1800s, concluded that that federation, resting on the principles of democracy, federalism, and the rule of law, is indivisible. So also is the third great federation with which we share the North American continent, the United States of Mexico. In their constitution, Mexico is indivisible.

It seems to me, honourable senators, that the way out of the conundrum that Senator Grafstein eloquently spoke of on Thursday, the way out of the dilemma in terms of the relationship of these two Houses of our Parliament, is to adopt this motion. I am of the view that any subgroup of this house, any committee of this house, composed of a select number of honourable senators is more than capable of doing the job at the level of expertise that is the tradition of this house. I believe that the committee would be able to report back with a bill that would achieve the government's objective. Let us not be stampeded by the petulance of anyone. Let us not be misguided by a false timetable. Let us do in a calm and deliberate fashion the kind of study and the kind of legislative drafting of which we are capable. It is only by adopting that attitude, that modus operandi, that we will serve the Canadian people as they deserve to be served.

Therefore, honourable senators, I support this motion in amendment.

Senator Hays: Honourable senators, would the Honourable Senator Kinsella permit a question?

Senator Kinsella: Of course, honourable senators.

Senator Hays: The motion may not be a classic hoist motion, but it seems to me that it has the same effect, in that the bill, if it were passed, would be withdrawn and its subject matter referred to the Standing Senate Committee on Legal and Constitutional Affairs.

I wonder if Senator Kinsella could comment further in terms of the consequence of supporting the amendment. There is a procedure, as I recall in the other place that is conducive to a committee essentially drafting a bill, taking bare bones. In this case, Senator Stratton's motion would see the subject matter of Bill C-20 referred — in other words, starting from square one, holding hearings if thought advisable, and then creating a bill.

I wonder if the honourable senator could tell us how long he envisages such a procedure taking. Would the honourable senator not agree that the time frame within which that might play out and be seen to an end would be unreasonably long, in the context of the commitment of one of our provincial governments to hold a referendum possibly on very short notice and in the very near future?


Senator Kinsella: I thank the honourable senator for his question. It is a fair one. I invite honourable senators to review the process that is involved in drafting a bill in this town. As honourable senators know, a group of civil servants get together and they throw ideas around over coffee. They meet with the minister and say "Here is the general approach." The minister then works with his or her officials and a draft proposal is put together. In general terms, it is put together within the framework of a document that is brought to cabinet, but the die is immediately cast.

Once that die is cast and the minister of the Crown rises in the other place and brings forward the bill, it takes a very strong and secure minister to back away from a legislative initiative that he or she has tabled in the House of Commons. In the past, we have seen those strong, confident, self-assured ministers who, upon learning of a deficiency in their proposed legislation, accept amendments. Indeed, there have been many cases in which the amendments that ministers embraced came from this chamber.

Honourable senators, the whole process with a new bill takes a matter of a few months. We have seen legislation, however —  and emergency back-to-work legislation is one example —  where that is done over a two- or three-day period.

There has been a sophisticated debate in this house. It is a pity that the same level of debate did not occur in the other place. We understand the political dynamics that operate there, but the reality is that we have canvassed and have adduced the principles that are involved here. In my estimation, I believe that our committee, based upon the record of debate in this place at second reading, could achieve an analysis that would lead to a report that would contain a draft bill in a matter of weeks — not a long time, but well before any referendum, from what I can ascertain, from the Government of Quebec in particular. There would be plenty of time.

We share the view that we do not want to be in the situation in which we found ourselves a few years ago. Our committee can do it. The important thing is that we draft a proper piece of legislation to achieve this objective. I do not know who was involved in the drafting of this bill at the level of the officials, but it is full of the inconsistencies that we have identified in this house, just in terms of comparing the Supreme Court's opinion and the draft legislation. There are prima facie inaccuracies within the grand principles. We cannot shy away from the analysis that Senator Joyal has given us. Based on this, I suggest that our committee would be able to draft a piece of legislation. It is important that we in this house realize that we do not have to take and simply modify the model that comes with a piece of legislation from the other place. As an equal legislative assembly, we have the right — perhaps in this instance the duty — to rewrite the model as indicated.

Debate suspended.

Business of the Senate

Hon. Dan Hays (Deputy Leader of the Government): I rise now, honourable senators, to turn to the matter of our business. Looking at the clock, in 15 minutes the proceedings will be suspended for the ringing of the bell.

We have not gone far on the Order Paper and Notice Paper, honourable senators. I wish to ask for leave at this time that when the vote is taken at 6 p.m. and we are in our place, we continue our sitting by not seeing the clock so that we can continue with other matters on the Order Paper. I hope we can return to the main motion. I shall ask that the question on Senator Stratton's amendment be voted on Thursday when we vote on Bill C-20. Senator Cools may wish to start her speech or she may wish to adjourn. That will be her choice. The main reason I am rising is to ask for leave not to see the clock when we are here in the chamber after 6 p.m. and after the vote so that we can proceed with matters on the Order Paper.

The Hon. the Acting Speaker: Honourable senators, is it agreed that we will not see the clock at 6 p.m.?

Hon. Senators: Agreed.

Hon. Anne C. Cools: Honourable senators, might I put a question to the Honourable Senator Hays? The bells will ring at 5:30 p.m. I am quite prepared to speak today, but I was not expecting to speak to an amendment. To the extent that I have not even seen the amendment and I am not seized of it, I shall be prepared to speak after the vote, rather than beginning right now to speak to an amendment about which I do not know in detail, only to be interrupted.

If Senator Hays and honourable senators would agree, I would not mind a few minutes to take a look at Senator Stratton's amendment. I would then be ready to speak on that amendment following the vote at 6 p.m. — that is, if we are to sit after the vote. I am not sure what our intention is at this time. Perhaps Senator Hays can clarify that matter.

Senator Hays: On the question of house business to which I was given leave to comment, I shall look to Senator Kinsella, who will speak for the opposition. Certainly, I have no objection to resuming debate on Bill C-20 when we return to the Order Paper following the vote.

Honourable senators, we could suspend now in anticipation of the bell at 5:30 p.m., or we could continue with another matter and then return to the order resuming debate on Bill C-20. I am not sure what Senator Kinsella would prefer. I propose that we proceed to Order No. 2 and hear from Senator Pearson.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Agreed.

Senator Hays: We could then return to Order No. 3, Bill C-20, when we return after the vote.

Could the Table call Order No. 2, please?

The Hon. the Acting Speaker: Honourable senators, it is my understanding that we are now suspending further debate on Bill C-20 and that we will move to other items on the Order Paper. We will return to the debate on Bill C-20 following the vote. Is that the understanding, honourable senators?

Senator Hays: Not quite, Your Honour. We are proceeding with Order No. 2 and will deal with it between now and the ringing of the bells, which I think we can do. If we cannot, then Senator Pearson can conclude her remarks after the vote, following which we will revert to Bill C-20.

National Defence Act

Bill to Amend—Third Reading—Debate Suspended

Hon. Landon Pearson moved the third reading of Bill S-18, to amend the National Defence Act (non-deployment of persons under the age of eighteen years to theatres of hostilities).

She said: Honourable senators, when Bill S-18 was before the Standing Senate Committee on Foreign Affairs, some senators raised questions about processes relating to international agreements and others were interested in how youth are engaged in the Armed Forces. Both these issues deserve fuller discussion, so let me take advantage of third reading debate to amplify comments that I made during second reading debate and add a few more that I hope will be helpful in persuading all senators to support this small but significant bill.


First, why this bill and why now? To answer, I need to clarify the relationship between Bill S-18 and the optional protocol to the United Nations Conventions on the Rights of the Child.

Second, why do 16- and 17-year-olds choose to join the Canadian Armed Forces, a choice, incidentally, that I support, provided, of course, that they cannot be sent to fight until they are 18?

The first issue is primarily a process issue because it is not currently the practice in Canada to recruit children and to allow them to go to war. Of course, 16- and 17-year-olds do not like to be called children. The Convention on the Rights of the Child, adopted by the United Nations in 1989 and ratified by Canada in 1991, nevertheless defines a "child" as a person under the age of 18 years unless, under the law applicable to the child, majority is attained at an earlier age.

However, it was not possible during the negotiation of the articles of the convention to reach agreement on the age of 18 as a standard for recruitment into armed forces or for participation in hostilities.

As a result, article 38 of the convention sets 15 years as the minimum age for recruitment into an armed force and for direct participation in hostilities.

Within three years of the adoption of the convention, there were renewed efforts to address the issues of the age of recruitment and participation. First, the Committee on the Rights of the Child, which was set up to monitor implementation of the convention, recommended the adoption of an optional protocol to raise the age to 18. Then the World Conference on Human Rights in 1993 called for action in this area. In turn, the Commission on Human Rights, in 1994, established an open-ended working group, open to all countries, to develop a draft optional protocol.

The working group first met in 1994 and continued its work until January 2000. The term "optional" refers to the fact that a state can continue to be a party to the Convention on the Rights of the Child without adopting this or the other optional protocol to the convention on child prostitution, child pornography and the sale of children. It is hoped, of course, that all states eventually will do so.

In January 2000, the international community reached consensus on a text for an Optional Protocol on the Involvement of Children in Armed Conflict. This protocol was adopted by the Commission on Human Rights in April, as was the other protocol. Both are expected to be adopted by the United Nations General Assembly in early June.

The Department of Foreign Affairs and International Trade is seeking authority to sign the optional protocol to the Convention on the Rights of the Child on involvement of children in armed conflict when it is open for early signature and ratification at the special session of the General Assembly entitled "Women 2000: Gender Equality, Development and Peace for the 21st Century," to be convened on June 5 and 6, 2000, in New York.

The Department of Foreign Affairs and International Trade is unable to seek authority to ratify the optional protocol, which would allow Canada to bring the protocol into force and implement it in Canada, at this early session because Bill S-18, which amends the National Defence Act, to incorporate into law the objectives of the optional protocol, will not yet have received Royal Assent. However, Canada intends to sign the optional protocol with the declaration indicating that our domestic legislation is in the process of being amended to ensure compliance with the terms of the optional protocol and that Canada intends to ratify it as soon as this amendment receives Royal Assent.

Norway, a like-minded country on this issue, is in the process of amending its legislation in a similar fashion to remove the current authority that they have to conscript 16- and 17-year-olds, which, incidentally, we do not do. Young people of that age will still be able to volunteer to serve in non-combatant roles.

To return to Canada, we can ratify a binding international legal instrument, such as a convention or protocol, but before we do so it is essential that Canadian domestic legislation be in full compliance with the obligations contained in the instrument. It is not sufficient that our policies are in compliance. The obligations must be enshrined in our law. Under the 1969 Vienna Convention on the Law of Treaties, each party to a convention or protocol must be able to certify that the convention or protocol can be implemented before it is ratified.

For Canada, as well as for other common-law countries, signature of an international legal instrument amounts to a moral and political commitment to complete all of the necessary legislative amendments to implement the instrument and to ensure compliance with its international obligations. Subsequent ratification of an international instrument is a certification that Canada's domestic legislation is now in full compliance with the terms of the instrument. This distinction between signature and ratification is reflected in the rules and procedures of the Privy Council Office, which requires compliance of our domestic legislation before seeking authority to ratify an international legal instrument, unless our domestic legislation was already in full compliance with its terms.

In its present form, the National Defence Act is not in full compliance with the provisions of the optional protocol. Specifically, the act does not prohibit members of the Canadian Armed Forces who are under the age of 18 from deployment and/or participation in armed conflicts. Accordingly, the amendment to the act as proposed in Bill S-18 is necessary in order to incorporate into law a policy by which the Canadian Forces now abide and Canada's decision to abide by the obligations arising from the optional protocol. Once Bill S-18 is approved and receives Royal Assent, the Department of Foreign Affairs and International Trade will be in a position to seek authority to ratify it.

Honourable senators, I should like to address the question as to why young Canadians choose to join the Canadian Forces.

As part of the recruitment process, anyone who wishes to join the Canadian Forces at any age must pass through a series of interviews and tests. This process, and the regular, ongoing monitoring of our military personnel, reveals that young Canadians have a variety of motives for joining the Canadian Forces. Officials from the department gave me a sense of what they were hearing from young people who join the forces. Let me quote as an example a 17-year-old male recruit and non-commissioned member of the Canadian Forces in his third week of basic recruit training at the Leadership Recruitment School at St-Jean, Quebec:

I joined the military because I found that school did not challenge me physically or mentally. I decided that as soon as I earned enough credits it would be the next step in bettering myself. Also, I was in cadets and had many positive experiences including going on an exchange to Scotland. I like the challenge that the military brings, both physical and mental.

In general, the reasons young Canadians give for wanting to join the forces are to serve their country; to travel, both in Canada and abroad; to develop new skills; to pay for post-secondary education by serving in the reserve; or to start a military career. Characteristically, they express a strong desire to be considered full members of the forces from the time they join.

This is in fact what happens. From the moment they enrol, they are integrated into the overall operational structure of the Canadian Forces. That is to say, they become a functioning part of the system like any other member.

To this end, they participate in the same training, team-building and esprit-de-corps-enhancing activities as other members of the Canadian Forces. They are subject to the same disciplinary system as other members of the Canadian Forces. They earn the same benefits, entitlements and protections as other members of the Canadian Forces.

There is, of course, one critical exception to this integrated approach. Members under the age of 18 are prohibited from being deployed to theatres of hostilities, areas where conflict is either underway or deemed likely.

Honourable senators, the situation of young Canadians under the age of 18 who join the Armed Forces is totally different from the practice of forcibly recruiting child soldiers into regular or insurgent armed groups in other parts of the world. Young Canadians are not constrained in any way from making a free choice in the matter. All they need do is present proof of age and of parental consent and pass the recruitment test to ensure they are suitable.

In other parts of the world, children who join in armed conflicts, even if they claim to have done so willingly, have frequently undergone some form of coercion. They may actually have been abducted. More often, they are there because their other life choices have been so constrained. They are living in great poverty. They have little or no education. Employment is minimally available. There are family and cultural pressures.

A young rebel soldier in Colombia recently explained to a journalist that, at the age of 12, she had seen uniformed women marching through her village carrying guns. She thought they looked glamorous and powerful. At the age of 15, she joined them. This speaks volumes about the limitations she felt to her own life as a campesina.

I do not believe, in spite of the eloquent appeals of World Vision and Amnesty International who spoke to us in committee out of their direct experience with child soldiers who had been forcibly recruited, that we should deny young Canadians the opportunity they seek to serve their country and local communities, to develop skills that will prove valuable throughout their adult lives, and to earn a little money and some benefits along the way.


I am not persuaded that limiting their choices would contribute in any way to diminishing the evil associated with children exploited in areas of conflict. What is important in my view is to leave the opportunity of service open to our young people while keeping them out of harm's way, as is already our practice and will soon, hopefully, be our law, while at the same time we work to address all the other issues that make young people vulnerable in areas of armed conflict thereby limiting, sometimes fatally, their life choices.

Honourable senators, we must strive to reduce poverty, to improve education and employment opportunities, and to combat the discrimination that puts girls, the disabled, and the indigenous and minority populations at particular risk for exploitation. We must also give young people other ways to contribute to the solution of what for many are issues of injustice and oppression. These are huge challenges for us all.

The Hon. the Speaker: Honourable Senator Pearson, I regret that I must interrupt you.

Senator Pearson: I have just two lines left to read, honourable senators.

The Hon. the Speaker: Is leave granted, honourable senators, to allow the Honourable Senator Pearson to complete her remarks?

Hon. Senators: Agreed.

Senator Pearson: Honourable senators, nevertheless, the optional protocol is a piece of this puzzle. I am personally satisfied that, with the amendments to the Defence Act contained in Bill S-18, we have struck the right balance between what we owe to our own young people and what we owe to their contemporaries in other parts of the world. I urge honourable senators to support this bill.

Debate suspended.

Special Senate Committee on Bill C-20

Motion to Appoint Committee Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Hays, seconded by the Honourable Senator Robichaud, P.C. (L'Acadie-Acadia):

That a special committee of the Senate be appointed to consider, after second reading, the 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 Secession Reference;

That, notwithstanding Rule 85(1)(b), the committee be comprised of fifteen 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 the committee;

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.

And on the motion in amendment by the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Robertson, that the motion of Senator Hays be amended by adding:

"That upon completion of its report and prior to its tabling in the Senate, the committee forward the report to the Standing Senate Committee on Legal and Constitutional Affairs for opinion and comment on the bill, in particular its constitutionality."

The Hon. the Speaker: Honourable senators, it being 5:30 p.m., pursuant to the order adopted by the Senate on Thursday, May 11, 2000, it is my duty to interrupt the proceedings to dispose of all questions necessary on the motion of Honourable Senator Hays to appoint a special committee on Bill C-20.

It was moved by the Honourable Senator Hays, seconded by the Honourable Senator Robichaud, P.C., that a special committee of the Senate be appointed to consider, after second reading, the Bill C-20 — 

An Hon. Senator: Dispense!

The Hon. the Speaker: It was then moved in amendment by the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Robertson, that the motion of Senator Hays be amended by adding:

"That upon completion of its report and prior to its tabling in the Senate, the committee forward the report to the Standing Senate Committee on Legal and Constitutional Affairs for opinion and comment on the bill, in particular its constitutionality.

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

Some Hon. Senators: Yes.

Some Hon. Senators: No.

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

Some Hon. Senators: Yea.

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

Some Hon. Senators: Nay.

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

And two honourable senators having risen.

The Hon. the Speaker: The bells will ring for 30 minutes. We will vote at six o'clock. The first vote will be on the motion in amendment and the second vote on the main motion.

Call in the senators.


The Hon. the Speaker: Honourable senators, the question before the Senate is the motion in amendment by the Honourable Senator Lynch-Staunton.

Motion in amendment negatived on the following division:



Andreychuk, Atkins, Beaudoin, Bolduc, Buchanan, Carney, Cochrane, Cogger, Cohen, Comeau, Corbin, DeWare, Di Nino, Doody, Forrestall, Grimard, Gustafson, Johnson, Kelleher, Kelly, Keon, Kinsella, LeBreton, Lynch-Staunton, Nolin, Oliver, Rivest, Roberge, Robertson, Rossiter, Simard, Spivak, Stratton—33



Adams, Austin, Bacon, Banks, Boudreau, Bryden, Callbeck, Carstairs, Chalifoux, Christensen, Cook, De Bané, Fairbairn, Ferretti Barth, Finestone, Finnerty, Fitzpatrick, Fraser, Furey, Gill, Grafstein, Graham, Hays, Hervieux-Payette, Joyal, Kenny, Kirby, Kroft, Lawson, Mahovlich, Mercier, Milne, Pearson, Pépin, Perrault, Perry Poirier, Pitfield, Poulin, Poy, Robichaud, (L'Acadie-Acadia), Robichaud, (Saint-Louis-de-Kent), Rompkey, Stollery, Taylor, Watt, Wiebe—46



Cools, Roche—2

The Hon. the Speaker: Honourable senators, we are back, then, to the main motion. Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

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

Some Hon. Senators: Nay.

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

And two honourable senators having risen.

The Hon. the Speaker: Call in the senators.

What is your wish, honourable senators, for this vote?

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I think the order of the Senate is that we dispose of all votes at this time. Accordingly, we are ready to proceed with the vote.

Hon. Nöel A. Kinsella (Deputy Leader of the Opposition): Agreed.

The Hon. the Speaker: Is it agreed that it be a standing vote?

Hon. Senators: Agreed.

The Hon. the Speaker: In that case, honourable senators, we must open the door for a moment in case there are any senators outside who missed the first vote.

Motion agreed to on the following division:



Adams, Austin, Bacon, Banks, Boudreau, Bryden, Callbeck, Carstairs, Chalifoux, Christensen, Cook, Corbin, De Bané, Fairbairn, Ferretti Barth, Finestone, Finnerty, Fitzpatrick, Fraser, Furey, Gill, Grafstein, Graham, Hays, Hervieux-Payette, Joyal, Kenny, Kirby, Kroft, Lawson, Mahovlich, Mercier, Milne, Pearson, Pépin, Perrault, Perry Poirier, Poulin, Poy, Robichaud, (L'Acadie-Acadia), Robichaud, (Saint-Louis-de-Kent), Rompkey, Stollery, Watt, Wiebe—45



Andreychuk, Atkins, Beaudoin, Bolduc, Buchanan, Carney, Cochrane, Cogger, Cohen, Comeau, Cools, DeWare, Di Nino, Doody, Forrestall, Grimard, Gustafson, Johnson, Kelleher, Kelly, Keon, Kinsella, LeBreton, Lynch-Staunton, Nolin, Oliver, Rivest, Roberge, Robertson, Rossiter, Simard, Spivak, Stratton—33



Pitfield, Roche, Taylor—3


National Defence Act

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Pearson for the third reading of Bill S-18, to amend the National Defence Act (non-deployment of persons under the age of eighteen years to theatres of hostilities).

Hon. A. Raynell Andreychuk: Honourable senators, I wish to speak to Bill S-18 on third reading. I commend the government for finally bringing this piece of legislation before us.

As it was noted, the UN Convention on the Rights of the Child was adopted in 1989. Canada had a very strong role in that convention. Particularly, the prime minister of the day, Mr. Mulroney, was closely involved in the negotiations as well as the development of the convention.

Bill S-18 troubles me not because of what is in the bill but because of what is not in it. The bill covers that Canada would ensure not to send persons under the age of 18 years into theatres of hostility. Theatres of hostility can be those within Canada as well as those outside Canada.

Not to send children into theatres of hostility is something that Canada should be concerned about — not only Canada but other countries as well. The current policy of the Department of National Defence has precluded sending young Canadians under the age of 18 into theatres of hostility for some time.

As Senator Pearson rightly pointed out, however, the law did not preclude this. Therefore, it was necessary to pass legislation in order that Canada could ratify the convention, or the optional protocol, as it is called.

It is important that Canada exert its leadership in this area. It does so to a certain extent with this bill because Canada will be in line and sufficiently prepared for due compliance.

Honourable senators, at this point, I wish to raise the point that this is only one-half of the picture. One of the most devastating things around the world is the recruitment of young children. We know that today in Sierra Leone, we know from past experience in Uganda, and we know from the situation in Sudan, children are used. They are the mechanics of operation in many theatres around the world. We know also that, in the Balkans, young people were not precluded, that they were intimidated and their families held hostage, to get children into theatres of hostility.

Young people, by virtue of being young, do not have the full maturity to make the decisions as to whether to enter into war is correct or not. Young people, particularly in Africa and parts of Asia, would tell you that the choices were not theirs. They were certainly put under the gun to use a gun.

Consequently, it was appropriate for Canada, through many decades, to bring light to this issue. It was appropriate for Canada to say that not only should young people not be in theatres of hostility, but also that they should not be recruited when younger than 18 years of age. We have tried to bring this to the attention of other countries.

Some people say that it is not the country or the leader that recruits young people. I am afraid that around the world there are countries where the leaders are manipulating young people and recruiting them into theatres of hostility.

We also know that those in opposing camps who do not carry the title of a leader, such as president or prime minister, are leaders of factions, tribes, and groupings. These people could some day be the future acknowledged leaders in some countries.

Liberia provides an example. Mr. Taylor was, in fact, a rebel who we did not recognize, a rebel who used hostilities as a means of furthering his own ends. He is now a legitimate leader of Liberia.

It is important for us to exert leadership and to exert pressure on all people. It is important to start a system in the world that will say, "No child under any circumstances under the age of 18 will be employed in any theatre of hostility, whether it is war, neighbour to neighbour, or whether it is war within one country."

I part company with Senator Pearson at this point. My concern is that this bill did not outlaw the recruitment of young people under the age of 18 in Canada. There was a justifiable reason in the eyes of the government, and Senator Pearson has pointed it out. We do have young people aged 16 and 17 years who are part of the Canadian Armed Forces. Basically, they are those going to Royal Military College or in non-hostile theatres.

I think it is an admirable employment technique. I think young people who wish to choose the military should receive the right training at the right time. However, there should be other ways that we could accomplish having 1,000 young people involved in what would lead to a military career, without designating them as part of the full complement of the Department of National Defence, that is, being a soldier.

Norway has found a way around it. Canada could have been ingenious. If we had taken a leadership role and taken the extra effort to create a complementary act, a complementary unit for these young people aged 16 and 17, and clearly delineated that they would not be part of the regular soldiers until they were 18, we could have accomplished both ends. That is the direction in which many other countries are going.

We do not want to preclude young people from receiving training and the kind of skills they need, the kind of discipline they need under the age of 18. However, we should not want to send a signal around the world that it is acceptable to recruit these young people.

There is a fine line in saying, "We shall recruit under 18 years of age, but only for these fine, laudable purposes." Once that door is opened, every one will find some justifiable reason to recruit below the age of 18 years into regular service. Therefore, we open the door to every nefarious country and grouping to start the recruiting.

World Vision and Amnesty International, and a coalition of some other NGOs, were very disappointed, as was I, that Canada capitulated. Until very recently, Canada stated that no one under the age of 18 years would be recruited, that a way to change this would be found. However, Canada capitulated, and continued to put this bill forward for the active service in theatres of hostility, as the preventive part, and not the recruitment. We have lost our moral leadership around the world on this issue of child soldiers.

This was not a question of what would have happened in Canada had we maintained our position. Compliance exists within Canada, and we are doing it correctly.

We have lost our international moral leadership. Therefore, we have lost some of the edge for every time we speak on issues of child soldiers and every time we speak on atrocities in other countries. Canada has lost some of the leadership that we would have had.

If Canada does not draw the line, other countries who do not stand with the same reputation and the capabilities will begin to chip away at this recruitment.


It will be recruitment for only those purposes, but those purposes will go closer to the theatres of hostility. We know if we allow recruitment even in areas that are not hostile now, they may be at a future date. Thus, there is a ready army of young people who will be dragged into theatres of hostility.

A life is a life is a life, and a child is a child a child. We cannot take the position that this bill does, that somehow or other there are good things happening for young people in Canada to be part of the military service under the age of 18 and we should not disrupt that, even if it means losing moral ground elsewhere. I do not believe that that is the appropriate way for Canada to act. Therefore, I appeal to the government to reconsider its position.

Honourable senators, I shall not hold up the bill. I shall vote for it because I believe it is important that Canada at least sign the optional protocol. However, I encourage Canada to take that extra step. I know it will be difficult for the Department of National Defence to set up a separate system that clicks in at age 18 should certain people decide to go on in military service beyond the age of 18 in order for their benefits to accrue to them for the years of 16 and 17, but it is morally important that Canada reclaim its position as a leader on children's issues, as a leader on the issue of child hostilities, and as a leader under the United Nations Convention on the Rights of the Child. To leave recruitment out has left us wanting, and this is an error that must be corrected in the future. I intend to pursue it, but I shall not hold up the bill at this time.

Hon. Colin Kenny (The Hon. the Acting Speaker): Is the Honourable Senator Pearson asking a question?

Hon. Landon Pearson: Honourable senators, I have one question before the vote on the question.

The honourable senator misheard what I said about Norway. My information from Norway is that their legislation will be virtually the same as ours. What they are removing is their authority to conscript, something which we do not do. Sixteen and 17 year-olds will still be able to volunteer for military service.

Senator Andreychuk: Honourable senators, I thank Honourable Senator Pearson for that comment. She knows that we asked for more information in the committee, but the chair did not allow us to have it. Perhaps this is something else I could clarify.

Some of us went on division in the committee because we wanted the extra information and could not get it. We wanted to receive it.

What I understand, though, from information that has been given to me and given second-hand, is that, yes, Norway will be seen to be moving toward less recruitment, whether it is on conscription or otherwise, and that they will continue to look at ways and means to fully comply with the intent that was put forward in 1989 that children would not in any way be near military service. I cannot speak for the Norwegian government.

The point I was making is that we could accomplish with young people what we need to do. The cadet program, for example, is excellent. We need these kinds of programs in Canada. These programs have a military flavour, but the participants are not regular soldiers. I do not believe that individuals who go to the Royal Military College are in any way precluded from a fine military service after the age of 18.

If Canada has chosen 18 as the age of majority, that is the age we should signal to the rest of the world. Consequently, leaving the door open, I believe we lose the moral ground. I am inclined to agree with Vision Canada and those who work overseas that we lose ground because now we cannot say with the same moral conviction to all of the perpetrators around the world, "Don't you do it," because they can point out that we are doing it. We then have to reply, "But these are fine, laudable reasons." It puts us into the debate. I would have liked to have been in leadership without the debate. That is where the honourable senator and I disagree.

Senator Pearson: I shall leave it on the record as a disagreement between the two of us and proceed to the vote on the question.

Hon. Eymard G. Corbin: Honourable senators, I have a few things to say.

This is a short bill. It is a one-liner. People sometimes take one-liners lightly and cannot understand that parliamentarians would want to protract the examination time of bills such as this. It would have been a wonderful opportunity to question the government on its policies with respect to this matter. We send young men, and also young women, to theatres of conflict, and the military personnel who appeared as witnesses did not want to broach the question of the impact on their psychological health, especially. They told us they were not empowered to deal with that issue. I believe that is part and parcel of what we are looking at today.

As a member of the steering committee, I did not even question whether a minister or two ministers would appear, but they did not. They sent in functionaries, people from National Defence. They sent someone from the Judge Advocate General's office, but in terms of the more political, fundamental debate, there was no one there who could really satisfy us in terms of the questions we put to them.

I was particularly bothered by the fact that the Armed Forces is taking a business approach in dealing with the lives of young Canadians, both young men and young women, and putting them in a theatre of conflict. For example, they referred to recruitment as a competition for manpower, or terms to that effect, and that they wanted to exploit that manpower in such a way as to get value for bucks.

I do not know if the mentality in DND has changed to any great extent, but that is not the way we parliamentarians look at the risks involved in putting very young people in theatres of conflict. I share many of the concerns expressed by Senator Andreychuk. However, the next time around, a one-line bill will not get an easy ride in committee. We shall spend much more time on it. We will insist that ministers come to defend their departmental policies and practices. We shall comment much more than we have been allowed to understand on the broad inferences of a treaty of this nature.

Hon. Raymond J. Perrault: Honourable senators, I have been working with Canada's peacemakers, who have undergone unbelievable stress in their responsibilities. I have met with them and listened to their views. Let me tell honourable senators, this is a very serious problem.

I was down at the United Nations when we had the joint committee on foreign affairs. We were told there that, without question, Canadians are the best peacemakers in the world and they wanted us to know that. Some honourable senators who were there with me will remember those remarks. However, there is a price.


Over the past year, eight — and perhaps even more — of our peacekeepers have committed suicide. They have been unable to cope with the stress associated with their responsibilities as peacekeepers. They are sickened and psychologically devastated by seeing youngsters murdered before their eyes.

We need a major program in this country to help people who are placed under stress of that kind. The Department of Veterans Affairs and the Department of National Defence have been taking some useful steps to deal with this serious problem.

Two days ago, I visited a Canadian war cemetery in Germany, and I hope to speak to honourable senators about my visit. Some 17,000 young people, many of them 18 and 19 years of age, were shot down in World War II. The real impact of war on humans is absolutely dreadful.

We saw the tombstone of 19-year-old twins from Ontario who were shot down on the same day. The sorrow and grief caused by the loss of people in the Armed Forces is unbelievable.

As was said earlier, we must be more concerned about the people we are sending forth to bring peace to the world, because they are under unimaginable stress.

Hon. J. Michael Forrestall: Honourable senators, I feel somewhat constrained in entering this debate. The subject matter was dealt with by a committee that is somewhat removed from my day-to-day concerns. However, something that Senator Andreychuk, Senator Perrault and Senator Corbin have said has brought me to my feet.

I have been to Bosnia. My concern has nothing to do with the age of individuals that we send on these missions. It has to do with how we as a nation, and the responsible authorities, react to the responsibilities given them.

Those who follow defence matters will know of my deep and continuing concern about the woefully inadequate level of care extended to service people, and in particular to the reservists without whose help Canada would not have been able to participate in the number of peacekeeping, peacemaking, peace preserving, and peace restoration missions that we have. It is no longer only peacekeeping. It has gone well beyond that.

We do not extend to our young men and women, on their arrival home, the professional counsel and guidance that they need. Senator Perrault spoke of suicide. I know of what he speaks. I know that Senator Rompkey shares this view, because we have discussed it. It is important that we as a nation understand that equally as important as the age of the people we call upon to represent us in theatres of war is our obligation to provide counselling when these people return. One cannot come back from that hospital in Bosnia and resume one's former duties, after seeing the atrocities that were perpetrated upon fellow human beings. As a nation, we must be conscious of what we are doing to these people, some of whom have been on five or six missions abroad. When they come home, they are on their own. Suicide is the grace of God. Sometimes it takes a great amount of courage to take that step, which might have been avoided had there been in place adequate professional counselling.

God knows that we hold ourselves out to be the world's greatest peacekeepers. However, the one thing we overlook is taking care of our own people. We send them into conditions of war and atrocity.

I talked to Captain Jackson, who has just returned from Sierra Leone. There has been no counsel for them. There has been no place they can turn. They take off their uniforms a week or 10 days after living with the threat of being shot, and they have to go home to their families and return to their former lives.

I am concerned about the protocol. Honourable senators, it is far more important that Canada understand and be part of the sacrifice that we ask of these young men and women. We ask them to play their part, and we should play our part. Part of that has to be a consuming care for these people and their families when they return from these horrible situations.


Honourable senators, perhaps it is now time for us to find a way to establish the oversight committee, so that these matters might be reviewed, not in the light of any pressures or single incident but, above all, in our concern for humanity and our concern for these young men and women. It is extremely difficult to face the family of a young man who did not understand what drove him to the ultimate sacrifice. We can do better.

The Hon. the Acting Speaker: It is moved by the Honourable Senator Pearson, seconded by the Honourable Senator Adams, that the bill be read a third time now.

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

Hon. Senators: Agreed.

Motion agreed to and bill read third time and passed.

Bill to Give Effect to the Requirement for Clarity 
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

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, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference;

And on the motion in amendment of the Honourable Senator Stratton, seconded by the Honourable Senator Lynch-Staunton, that the motion be amended by deleting all the words after the word "That" and substituting the following therefor:

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 Secession Reference, be not now read a second time but that the Order be discharged, the Bill withdrawn and the subject matter thereof referred to the Standing Senate Committee on Legal and Constitutional Affairs.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, we have an amendment before us. I heard Senator Kinsella indicate that he was in agreement for a speech either on the amendment or on the main motion, and that agreement being reflected in an order of this house to vote on all matters on Thursday of this week. Perhaps Senator Cools could indicate whether she is speaking to the amendment or the main motion, as I understand the agreement of the house.

Hon. Anne C. Cools: Very well, honourable senators. I shall speak to the amendment, then, because that is where we left off earlier today. I think it is much better that the business of the chamber flow in an orderly fashion.

Honourable senators, this bill, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference, is beginning to seem more like mud than like clarity.

Honourable senators, the Parliament of Canada is indivisible. Bill C-20 is a bald assault on Canada's nationhood, on Canadian constitutionalism, and on the constitution of the Senate. Its propositions are hostile to Parliament, to the Senate, to Canadian sovereignty, and to Her Majesty the Queen. Such propositions cannot be advanced or effected by any bill of this Parliament. I shall show that Bill C-20 is a proposition unknown to Canada's Constitution, to the British North America Act, 1867. I shall show that Bill C-20 is a proposition unknown to the Parliament of Canada.

Honourable senators, I move now to the Supreme Court of Canada's advisory opinion in the 1998 reference regarding the secession of Quebec. We are told that Bill C-20 is an answer to the Supreme Court's advisory opinion. Canada is a nation founded upon the law, law that must be seen by all. In fact, the peculiarity of the British Constitution is that the rule of law enjoins judicial obedience to law and statute. This judicial obedience is one of the foundational and fundamental rules upon which the entire legal system is founded. The law is the law, and no one — not judges or ministers or kings — can take the law into their own hands. In truth, the ancient maxim was that lawyers' and judges' consciences were eased by their observing the boundaries and limits of the law and eased by avoiding attempts to give legal answers to political questions.

To lawyers, judges and citizens, the boundaries of the law are not obscure — they are discernible. Our system of constitutional governance dictates that lawyers and judges must follow the law and are bound by that law in adjudicating legal questions. The Supreme Court said that the British North America Act, 1867, now the Constitution Act, 1867, is silent on secession of any province. It is not silent. It condemns secession by its express provisions, as I have shown in my speech earlier today on the motion to establish the special committee to study Bill C-20.

Honourable senators, the Supreme Court also told us, in the Reference re: secession of Quebec, that the court may ignore the law, the BNA Act. It said, at paragraph 148, that:

A superficial reading of selected provisions of the written constitutional enactment ... may be misleading.

The law is unreliable, it is misleading, the court said. The Supreme Court claimed the legal authority, jurisdiction, to ignore the specific legal enactments of the Constitution Acts, 1867 to 1982, and claimed a legal and constitutional power unknown to the law. The Supreme Court adopted unknown power by its own simple declaration that it had that power. Further, to do so, the Supreme Court, citing itself in the 1981 patriation reference, said, at page 80:

...this Court should not, in a constitutional reference, be in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no.

That is very fascinating. Is there a law or is there not? Yes or no? It is not acceptable to say that there is a law and then add the word "but." That advisory opinion is extraordinary and beyond the law. There is a body of literature developing now about governance beyond the law. Further, it is contrary to all constitutional law.

I should like to contrast that particular set of statements to the law and the position of the court as it was laid out in 1938. Honourable senators, then Supreme Court of Canada chief justice Lyman Duff, in the 1938 disallowance reference said, at page 78 in the Supreme Court Reports:

We are not concerned with constitutional usage. We are concerned with questions of law which, we repeat, must be determined by reference to the enactments of the British North America Acts of 1867 to 1930...

He continued:

Once more, we are not concerned with constitutional usage or constitutional practice.

Honourable senators, conventions and the whole other range of the so-called unwritten constitution are pure politics. The situation of the court was best articulated by Lord Salmon, who upheld the law and not opinion. In the 1971 United Kingdom Court of Appeal's Blackburn v. Attorney-General, Lord Justice Salmon said, at page 1383 of the All England Law Reports:

The sole power of the courts is to decide and enforce what is the law and not what it should be — now, or in the future.

Honourable senators, the Supreme Court admitted that its opinion was not guided by the Constitution Act provisions. Had the BNA Act been silent on secession, certainly it would not have been a mystical secret known only to the court and only revealed in the past months. Certainly, we would have known that.


It would not have been a mystery. Sir John A. would have known. Prime Minister Trudeau would have known.

I submit that the court was called upon, and made a legislative and political decision. Having no law to guide them, and unable to rely on the court's own legal pedigree, the court rushed into the arena of politics and legislative lawmaking. Now in Bill C-20, the Government of Canada is asking Canada and the Parliament of Canada to relinquish their own sovereignty, Canadian sovereignty, to enact a legal obligation to negotiate the secession of Quebec, which obligation the court says the government has, based on no law. This is a revolution, unfounded in constitutional law, custom or usage. Professor Henry W.R. Wade in his 1955 article "The Basis of Legal Sovereignty" said, at page 191:

When sovereignty is relinquished in an atmosphere of harmony, the naked fact of revolution is not so easy to discern beneath its elaborate legal dress. But it must be there just the same...

Revolution, honourable senators, revolution.

Honourable senators know that I had opposed the government in the person of then minister of justice Allan Rock's reference of this question to the court. I relied on former prime minister Pierre Elliott Trudeau's position. Mr. Trudeau, remember, was compelled politically to make a similar reference in 1980 for the patriation of Canada's Constitution. In 1991, Mr. Trudeau, in a retrospective speech given at the opening of the Bora Laskin Library, published in Against the Current: Selected Writings 1939-1996, recalled that reference. He spoke eloquently and calmly about the political role that the Supreme Court adopted in its opinion. Mr. Trudeau praised the judicial opinions of Chief Justice Laskin and Justices Estey and MacIntyre, the minority opinion. He condemned the majority, Justices Beetz, Chouinard, Dickson, Lamer, Martland, and Ritchie, saying about the minority view, at page 247:

Had it prevailed over the majority view, I believe that Canada's future would have been more assured.

This is a former prime minister of Canada talking about the role of the Supreme Court in the patriation reference. Not only is he a former prime minister, he was the leader and the gentleman who appointed me to this chamber, and I dare say I have a lot of respect and regard for him to this day.

Condemning the majority judges' decision, Mr. Trudeau said, at page 256:

...they blatantly manipulated the evidence before them so as to arrive at the desired result. They then wrote a judgment which tried to lend a fig-leaf of legality to their preconceived conclusion.

This is not Senator Cools speaking; this is former Prime Minister Trudeau.

He spoke of Canadian's expectation of courts of law, saying at page 256: seemed to me that Canadians had a right to expect a legal decision from their Supreme Court, rather than some well-meaning admonitions about what was politically proper.

Praising the minority judges' decision and condemning the majority, Mr. Trudeau said, at page 258:

...the minority's more strictly legal approach lends itself far less to political manipulation of the courts than does the majority's. By refusing to go beyond its role as interpreter of the law, the minority avoided the temptation to which the majority succumbed, that of trying to act as political arbiter at a time of political crisis. While there are no doubt differing views of how well the court performed this role in the Patriation Reference, it is not a role to which a court of law striving to remain above the day-to-day currents of political life should aspire.

I repeat, Mr. Trudeau, the prime minister at the time of that reference, said that such a political role is not a proper role for a court. I join Mr. Trudeau in that. The Supreme Court's decision granted, he said, at page 259:

...that latter province a lever to pry itself out of the Canadian constitutional family.

Honourable senators, this Supreme Court decision on secession and its progeny Bill C-20 is the next lever — and it is a powerful lever. For generations, Canada's system of constitutional governance has eschewed litigation the purpose of which is to influence or affect political decisions. Courts and judges were expected to confine themselves to law and questions of law. They were expected to refrain from politics and political questions, as Mr. Trudeau, former Liberal prime minister of Canada, so aptly put it. Mr. Trudeau had relied on Canadian jurists like Sir Lyman Duff who had maintained and upheld this point of view.

Honourable senators, I eschew the court's advisory opinion and I oppose Bill C-20, because I am a Liberal. The major building blocks of liberalism and of the development of liberalism in Canada were two-fold: the upholding of a strong Parliament and the maintenance of a non-politicized court and judiciary. That is liberalism. Bill C-20 is hostile to these foundational dimensions of liberalism. It is also hostile to harmonious Liberal Party relations. The maxim of politics is that governments function as well as their party caucuses function.

Honourable senators, Senator Bernard Boudreau, in his speech on March 23, told the Senate about responsible government in Canada and about the prerogative of the Government of Canada. I challenge Senator Boudreau to examine his mistaken assumptions about responsible government, about the Royal Prerogative, about the role of Parliament, particularly the Senate, and about the role of leadership and political parties in the practice of responsible government. I shall speak as a senator from Ontario, the birthplace of responsible government in Canada. The development of responsible government had been through political parties in the United Kingdom, but especially in Canada. Responsible government's effort was to correct the use and abuse of power by ministers of the Crown in the House of Commons. Responsible government was born of the need to strengthen Parliament and protect Parliament and the people from the executive excesses of cabinet ministers. Our own former colleague Senator John Stewart wrote about crown and ministerial excess in the Commons. In his 1992 book, Opinion and Reform in Hume's Political Philosophy, he wrote, at page 250:

Mainly the power of appointment: by adroit use of places, the ministers are able to create a majority....To assert that the most sublime constitution the world ever has known depends for its success, even survival, on bribery and corruption may seem blasphemous; nevertheless, that is the plain truth.

I hope honourable senators understand why I opposed that motion for the committee.

The Hon. the Acting Speaker: Honourable Senator Cools, I regret to inform you that your time limit has expired.

Senator Cools: May I have leave to continue, honourable senators?

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

Hon. Senators: Agreed.

Senator Cools: Honourable senators, responsible government was developed to correct that corruption. Contrary to what Senator Boudreau has told us, the important feature of responsible government is the management and control of executive excess and executive power, and the freeing up of Parliament from ministerial manipulation — in parliamentary language, corruption.


Honourable senators, the position of the prime minister in responsible government is great. About the prime minister's regular relationship to Parliament, Alpheus Todd, in the 1892 edition of Parliamentary Government in England: Its Origin, Development, and Practical Operation, Volume II, quoting former United Kingdom prime minister William Gladstone, said, at page 13:

He must be loyal both to his sovereign and to his colleagues, as well as to parliament.

The Prime Minister owes Parliament, both the House of Commons and the Senate, a duty of loyalty, of fidelity. About the cabinet and the ministry, Todd quoted Lord Macaulay, saying, at page 2:

The ministry is, in fact, a committee of leading members of the two Houses.

Responsible government is the notion of subjecting the cabinet of both Houses to Parliament, not the subjection or subordination of Parliament to the cabinet and the prime minister. Parliament means two Houses, the Senate and the Commons.

Honourable senators, recently on Bill C-20, the government has said a lot, both in and out of this chamber, about responsible government in Canada and the Senate's role therein. Most of it is wrong, some of it is mistaken, and some of it is downright misleading. I cannot respond to all, but I shall respond to some.

On March 23, Senator Boudreau, the sponsor of the bill, minister of the Crown and Leader of the Government in the Senate, told us that the management of separation, secession, of one or all of the provinces is a matter reserved solely to the cabinet, and that the Senate, per the Supreme Court's decision, is not included in the court's own careless, inexact, untidy and non-curial term "political actors." He said at page 813 of the Debates of the Senate:

It would, of course, be difficult to fit the Senate into this group of political actors...

Senator Boudreau has defended the government's alienation of the Senate in Bill C-20 in consideration of important questions of national unity and asked the Senate to concur with him. He will insist on Liberal Party loyalty to obtain it. This is an infringement.

I would remind him, honourable senators, of another principle of responsible government, being the concurrence of the two Houses. This was articulated by Lord Brougham in his 1861 book The British Constitution: Its History, Structure, and Working. He said, at page 254:

It is, however, a more serious infringement of the fundamental principle if either of the three branches assumes, under any pretence, a power of acting without the concurrence of the other two, and without the sanction of any known general law to which the obedience of the people may be required.

Senator Boudreau needs to bone up on his knowledge of responsible government. Bill C-20 is such an act. It is not only Neanderthal, politically prehistoric, but it is dangerous. It is especially dangerous because it pretends to bring clarity, but it does not. Senator Boudreau told us, as have many government personnel, that the Government of Canada, the cabinet, by the Royal Prerogative, has the right or, rather, the power to negotiate anything it sees fit without the Senate or the House of Commons. Senator Boudreau said at page 813 of the Debates of the Senate:

At the present time, the executive, or cabinet, has the prerogative on whether to enter into negotiations concerning constitutional amendments, and though neither chamber has a direct role to play in that decision, our system of responsible government gives the House of Commons leverage that we in the Senate do not have.

First, Senator Boudreau is wrong. The executive, the cabinet, has no prerogative. The Crown does, Her Majesty does, but the cabinet has no prerogative. The prerogative is the Royal Prerogative. The government leader relies on the Royal Prerogative of Her Majesty. He relies on royal authority, regal authority, as against Parliament; that is, as against the interest of the subjects, the citizens.

Reliance on the prerogative by governments in responsible government has always been viewed as improper and is the antithesis of responsible government. About this impropriety, Lord Brougham also said, at page 331: is an impure and illicit source from which to draw favour towards the Government. That favour will necessarily arise from the legitimate use of the power, and this is sufficient.

I repeat: the legitimate use of the power of the Royal Prerogative. Boasts of the government's use of Royal Prerogative against the interests of the subjects, the citizens, are unhealthy to good politics and are very hostile to responsible government, and also hostile to party politics. I also note that Senator Boudreau just simply asserted Royal Prerogative and will not tell us which of the Royal Prerogatives he is relying upon.

Honourable senators, I tell you that there is no such prerogative. There is no Royal Prerogative to negotiate the disunion of Canada. Her Majesty's sovereignty can tolerate no division.

On Senator Boudreau's mistaken explanation of responsible government in Canada and the role of the Senate, I shall quote a great Canadian authority, Alpheus Todd, on such oligarchical views. In his 1878 work On the Position of a Constitutional Governor under Responsible Government, Alpheus Todd wrote about such views, saying, at page 4:

That, in fact, the Cabinet of the day is an oligarchy, exercising an uncontrolled power in the administration of public affairs; subject only to the necessity of obtaining a majority in the popular branch of the legislature to approve their policy, and to justify their continuance in office. Such a form of Government, however theoretically defensible in the abstract, in the estimation of some political thinkers, is not that of the British Constitution.

Senator Boudreau's assertions in this chamber, and Minister Stéphane Dion's assertions, form no part of responsible cabinet government in the constitutional monarchy of Canada. Further, these assertions, like Bill C-20, form no part of Canadian constitutionalism, of Canadian constitutional law or practice. They form no part of parliamentary practice of the Parliament of Canada. I shall endeavour to show this.

Honourable senators, as I said, Senator Boudreau has relied on the Royal Prerogative, which he repeatedly describes wrongly as the government's prerogative. Senator Boudreau's language illustrates the government's problem and his own problem. I repeat, the prerogative is Her Majesty's prerogative. It is the Royal Prerogative, not the government's or the cabinet's.

On March 23, Senator Boudreau said at page 815 of the Debates of the Senate: the absence of Bill C-20, the federal government would have the unfettered prerogative to determine whether there was a clear majority on a clear referendum question. It would be under absolutely no obligation to take into consideration the views of the Senate, though, as a practical matter, it would need to be sensitive to the views of the House of Commons because of the risk of a motion of non-confidence.

Senator Boudreau has told us that by the Royal Prerogative, he and the government are under absolutely no obligation to consider the views of Her Majesty's Senate on a matter of pressing public importance, being the existence of Canada, the very sovereignty of Canada as a nation. Further, he asks the Senate to concur.

Honourable senators, Senator Boudreau asserts that the government's unfettered prerogative creates an oligarchical situation wherein the government by this unfettered prerogative owes no obligation to the opinion or advice of the Senate but that, however, purely as a practical matter, the government must be sensitive to the views of the House of Commons because of the risk of a motion of non-confidence. Senator Boudreau does not understand the system of governance in which he is operating, and the government seems to hope that most senators do not.

Honourable senators, I shall describe both the Parliament and the Senate of Canada's true constitutional position. By the British North America Act, 1867, sections 53 and 54, appropriation and tax measures must originate in the House of Commons by ministers of the Crown. Such measures, known as the financial initiatives of the Crown, must be accompanied by the Royal Recommendation, a form of the Royal Consent. If, perchance, by ministerial negligence or error an appropriation or tax measure not in conformity with sections 53 and 54 of the British North America Act were to pass in the House of Commons and was subsequently defeated in the Senate, that Senate defeat would be a defeat of the government and that defeat would be a question of confidence. I shall continue to show that the Senate, by its adverse vote, is constitutionally capable to defeat a government in respect of the government's exercise of the Royal Prerogative.

The two foremost constitutional and parliamentary minds among Canada's prime ministers had been Sir John A. Macdonald and Richard B. Bennett, later Viscount Bennett. I shall cite former prime minister R.B. Bennett during the 1933 debate on a railway bill, the result of a royal commission into railways and transportation in Canada that was Bill 37, respecting the Canadian National Railways and to provide for cooperation with the Canadian Pacific Railway System, and for other purposes. Of interest to all senators is that this bill was a government bill that originated in the Senate, introduced here by Senator Arthur Meighen. My focus is a clause of that bill which enacted the removal from office of the railway trustees by an address of the Senate and the House of Commons.


Clause 7 of that Bill had read:

No Trustee shall be removed from office, nor suffer any reduction in salary, during the term for which he is appointed, unless for assigned cause and on address of the Senate and House of Commons of Canada.

Prime Minister R. B. Bennett, that foremost authority on the Parliament and Constitution of Canada, described the role of the Senate in such an address. He told of the consequences to the government of an adverse vote, a negative vote, in the Senate on this address for removal. On May 4, 1933, about that Clause 7, in Committee of the Whole, Prime Minister Bennett said, at page 4585 of Hansard:

The House of Commons and the Senate, not simply the House of Commons, but both houses of parliament, represent the shareholders....The approval of parliament must be given. If the approval of parliament is given the government is vindicated. If parliament refuses its approval the government will have to vacate its place.

Prime Minister Bennett told the Commons that the Senate defeat of such an address on motion of a minister of the Crown is a defeat of the government, saying, at page 4586:

The reason why the Senate is introduced into this: We want the board to be independent of the executive, just as no executive action should be capable of terminating the services of a judge. Therefore the appeal is made to parliament. In the case of the judges that is as old as the statute that provided it. It has come down through all these years, and parliament means both houses. The answer that at least one hon. gentleman would make if the commons alone were mentioned would be that the government of the day has always a majority in the commons and therefore is always sure of being sustained in that chamber. But the government has not always a majority in the other chamber, whether in this country or any other, and therefore the government of the day may not be sustained in the other house; it may not secure the joint approval of the two houses of parliament by which these men may be removed.

Mr. Bennett continued to uphold the important and pivotal role of the Senate as part of Parliament, the role of giving advice to the sovereign, saying, at page 4586:

The question must be submitted to the high court of parliament, and the government of the day having submitted its cause, not to this house alone but also to the other branch of parliament which may not conceivably support the government, and that has very often happened, if it is unable to secure the approval of that other branch of parliament, as well as the approval of the commons, it fails and the government must go.

Prime Minister Bennett was speaking about the Senate's ability to defeat the government on a resolution; the very same Senate about which Senator Boudreau has said that the government need not consider its opinion. Prime Minister Bennett also said, at page 4587:

The government assumes the responsibility of asking the approval of parliament for the dismissal of Mr. A, the chairman of the board of trustees. The House of Commons says yes and the Senate says no. The government has failed.

Prime Minister Bennett concluded, at page 4587:

What is the good of this business of always talking high platitudes with respect to parliamentary institutions, when you have to deal with facts and realties? The reality is that if the House of Commons does not approve of the action of the government, that is the end of it; the government goes. And if you have said that the House of Commons plus the other house must approve, and it does not, the government goes equally. That applies with respect to the dismissal of the individual. That is not so about a statute at all. What is more, there are illustrations of it; it is not a new question at all. When a joint address is to be agreed upon, if one party does not agree to it, there is no joint address, and the government which initiates it must accept the responsibility for it. That is the difference between that and a statute. A government's measure may be defeated in the Senate, and that is the end of it. But that is not this case. The government has risked its fate by dismissing a man from his job. It has risked its all on that dismissal, and it has made that dismissal subject to the joint approval of two branches of parliament.

Honourable senators, Prime Minister Bennett was firm about the proper constitutional role of the Senate in its advice. Prime Minister Bennett, in response to Mr. Euler, revealed a piece of political history about the Senate and Sir John A. Macdonald. The exchange was, at page 4587:

Mr. Euler: I cannot conceive that the life of the government, for any reason, can be dependent upon the action of the Senate of Canada. The Prime Minister laughs at that, as he so often does.

Mr. Bennett: The Senate put the Macdonald government out.

Honourable senators, the constitutional role of the Senate, as confirmed by Mr. Bennett, pertains to the removal of high officers, whose acts of Parliament contain similar statutory provisions as Mr. Bennett described. These offices include, but are not limited to, the Auditor General, the Information Commissioner, the Privacy Commissioner, and the Commissioner of Official Languages. This also pertains for all high officers holding office during good behaviour. That is the constitutional role of the Senate and the constitutional meaning of "during good behaviour."

Honourable senators, this same concept of joint address by both chambers, in removing persons of high office, was advanced by Lester B. Pearson during debate on the Diefenbaker-Coyne affair in 1961. During debate on then Minister of Finance Donald Fleming's Bill C-114, respecting the Bank of Canada, a one-line bill to remove the Bank of Canada Governor James Coyne, Lester B. Pearson, the then leader of the opposition, stated that the proper procedure was not by that bill, but by a joint address of the Senate and House of Commons. On June 26, l961, Mr. Pearson told the Commons, at page 7056:

That action, I suggest, should not take the form of this kind of bill. That action, I suggest, would require two stages. First an amendment to the Bank of Canada Act, an amendment which we were told by the Minister of Justice —

— who was Mr. Fulton —

not long ago would be required in this situation, to provide a procedure for removing the governor similar to that contained in the Judges Act, so we could not have this kind of situation in the future. Then a joint address of both houses with the full particulars which justify the removal of the governor.

Honourable senators, obviously a Senate defeat of the bill would not be a defeat of the government, but most certainly a defeat of an address moved by a minister of the Crown would have, because, as Prime Minister R.B. Bennett said, the fate of the government for removing Bank of Canada Governor Coyne would have been determined by the vote of the Senate. It is clear why Diefenbaker's Conservative government proceeded by bill rather than by address. That bill was defeated in the Senate by Liberals. Had it been an address moved by Minister Fleming, that would have been the defeat of the government. It is obvious why Minister Fleming and Mr. Diefenbaker proceeded by bill and not by address.

Honourable senators, the Senate's role in joint addresses in respect of the Royal Prerogative in appointments and commissions of high officials is undisputed, and I always thought well known. The defeat of the government exercise of the Royal Prerogative of the Fountain of Justice is well known and beyond dispute. The British North America Act, 1867, section 99.(1), states that judges may be removed by address of the two Houses. Section 99.(1) states:

Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

Honourable senators, such an address, moved by the Attorney General of Canada, adopted in the House of Commons but failed in the Senate, would be a defeat of the government. For that reason, on June 6, 1967 a notice of motion to remove Supreme Court of Ontario Justice Leo Landreville was introduced in the Senate by a non-minister, Senator Dan Lang, and not in the House of Commons by the then minister of justice, Pierre Elliott Trudeau. This was to avoid the consequences, even possibility, of a failed motion by the Minister of Justice as law officer of Her Majesty in right of Canada. The consequence of such a failed motion would have been the defeat of the government on a question of confidence. The government knew that, and hoped to pressure Mr. Justice Landreville into resigning by proceeding as it did. The government, in that knowledge, asked Senator Lang to proceed in the chamber.

Honourable senators, in conclusion, the Senate's role in addresses and its ability to defeat a government is evident in addresses of the two Houses regarding the Throne Speech. It is evident that an adverse amendment or adverse Senate vote on the Address in Reply to the Speech from the Throne would defeat the government. Honourable senators, if such an address were carried in the Commons and defeated in the Senate, the result would be a defeated government.

Honourable senators, I have been talking about the Senate's role in joint addresses and resolutions, not bills, of both Houses. Addresses are a mode of speaking to the sovereign, of giving advice and opinion to Her Majesty. Senator Boudreau spoke of confidence solely as a matter for members of the Commons in approving or condemning the actions of ministers. I have been speaking of Parliament's, particularly the Senate's, power to advise the Crown, praying or requesting the Crown to take or not to take a particular action, which is done by resolution for address, the very power that Bill C-20 seeks to overcome.


Sir Erskine May defines an "address," saying, at page 606, Twenty-second Edition:

An Address to Her Majesty is the form ordinarily employed by both Houses of Parliament for making their desires and opinions known to the Crown...

The address is the mode by which the Houses of Parliament speak to the sovereign. Erskine May informs that the subjects upon which addresses are presented are too varied to admit of enumeration, stating, at page 607:

Addresses have comprised every matter of foreign or domestic policy; the administration of justice...and, in short, representations upon all points connected with the government and welfare of the country; but they ought not to be presented in relation to any bill in either House of Parliament.

There is no limit to the advice to the sovereign that may be rendered by an affirmative vote of the Senate. Undoubtedly, the Parliament of Canada, and its constituent part, the Senate, possesses this power. This power is known as the power to advise; it is well documented. Liberal Edward Blake, on April 30, 1890 in the House of Commons spoke about this power of Parliament to express its opinion by address requesting Her Excellency or Majesty to exercise power. Mr. Blake said, as reported at page 4211 of the Debates of the House of Commons:

The Parliament of the country has a power not merely to approve and to condemn, but it has also a more important power with reference to every political and executive act —  it has a power to advise....The power of advice is the great power of Parliament...

Honourable senators, the great power of Parliament, the great power of the Senate, is the power to advise. The power of the Senate to advise is unlimited. However, Bill C-20 seeks to limit it, to abridge it, actually to abolish the power of the Senate to pass resolutions, motions, and addresses, to limit the Senate's great power to advise. Senator Boudreau is wrong about the Senate's constitutional role in responsible government to defeat the government, as a question of confidence. He is also wrong on the Senate's power to advise on national unity. The British North America Act, 1867, section 18, conferred that power on the Senate. Further, the Supreme Court of Canada in its 1981 patriation reference, as condemned by Mr. Trudeau, as I mentioned earlier, which turned on Parliament's power to advise and pass resolutions, upheld that. It stated, at section VIII, at page 29, Dominion Law Reports:

Turning now to the authority or power of the two federal Houses to proceed by Resolution...There is no limit anywhere in law, either in Canada or in the United Kingdom (having regard to s. 18 of the British North America Act, 1867, as enacted by 1875 (U.K.), c.38, s.1, which ties the privileges, immunities and powers of the federal Houses to those of the British House of Commons) to the power of the Houses to pass resolutions.

Honourable senators, Bill C-20 is improper and inappropriate. Constitutional governance demands executive accountability to legally known processes. I invite Senator Boudreau to reconsider his position on this matter and his invitation to senators to agree with him.

Honourable senators, the Supreme Court has said, as Bill C-20 is saying, that there is no power in the law to allow a unilateral decision on secession. Therefore, the government is saying that since the Constitution is silent in law, we must pass a bill, supposedly in obedience to a "loosey-goosey," to use Professor Peter Hogg's words, advisory opinion of the court, a bill which would allow secession by a bilateral agreement.

Honourable senators, for me, that is objectionable —  extremely objectionable. As far as I am concerned, matters of that enormity, and matters that pertain like that to the national sovereignty of this land, are matters that are properly owned and which should be properly canvassed and properly superintended by the Senate, by the Parliament of Canada.

Canada is not to be divided by a simple bilateral negotiation by the premier of Quebec and the Prime Minister of Canada.

On motion of Senator DeWare, for Senator Andreychuk, debate adjourned.

Proceeds of Crime (Money Laundering) Bill

Second Reading—Debate Adjourned

Hon. Richard H. Kroft moved the second reading of Bill C-22, to facilitate combating the laundering of proceeds of crime, to establish the Financial Transactions and Reports Analysis Centre of Canada and to amend and repeal certain Acts in consequence.

He said: Honourable senators, it is my privilege to speak to you today at second reading of Bill C-22, the proceeds of crime, or money laundering, bill.

Money laundering is the process whereby the proceeds from criminal activities are converted into assets that cannot easily be traced back to their illegal origins. The process typically begins with the placement of cash into financial channels. It may also involve a series of complex financial transactions in which the dirty money is layered to further disguise its origins and then integrated or invested in seemingly bona fide assets.

Open borders and globalized financial markets provide today's criminals with the opportunity to launder millions of dollars every day in illegal profits. No country, including Canada, is immune from these activities.

Given the clandestine nature of money laundering and of the crimes that generate the funds that need to be laundered, it is difficult to put a precise figure on the size of the problem. However, studies have estimated that between $5 billion and $17 billion in criminal proceeds are laundered in and through Canada each year. These sums, which are very large by any standard, are linked primarily to proceeds from drug trafficking.

What has Canada been doing to address this problem? In 1989, the government took important steps to address money laundering through amendments to the Criminal Code, the Food and Drugs Act, and the Narcotics Act. Thus, the building blocks of anti-money laundering have been in place for some time. That legislation made money laundering a criminal offence and established procedures for seizing, restraining and forfeiting proceeds of crime.

The current Proceeds of Crime (money laundering) Act came into force in June 1991. It provides Canada with its current system of record keeping and client identification for financial transactions conducted through financial institutions, as well as professionals that act as financial intermediaries.

In addition, certain deposit-taking institutions entered into cooperative arrangements with the RCMP in 1993 to provide for the voluntary reporting of suspected money laundering activities to the police.

Further, in partnership with the provinces, territories and law enforcement agencies, the federal government has taken several steps against organized crime, including initiatives to fight smuggling and seize proceeds of crime.

In spite of having taken these actions, it is clear that Canada now needs to do more.


As money laundering techniques become more sophisticated, detection and deterrence have become increasingly difficult. Traditional methods used by law enforcement, such as storefront sting operations, have generally only been effective in dealing with money launderers who use smaller money service businesses, such as street level foreign exchange houses. At the same time, the current anti-money laundering measures of record keeping and limited voluntary reporting by deposit-taking institutions tends to focus only on the initial placement of cash into financial channels.

The effectiveness of the current reporting scheme is limited by its voluntary nature and by the fact that illicit funds can enter the system other than through deposit-taking institutions. This is borne out by international anti-money laundering organizations. They have noted the tendency for illicit funds to enter the financial system through such diverse points as insurance companies, security dealers, casinos, currency exchange businesses and professionals, including lawyers and accountants.

The call for stronger legislation in Canada has come from various sources. Law enforcement agencies in Canada and abroad need help to deal with the new realities of international organized crime. They have made the case to the federal government for legislation that requires the reporting of suspicious and prescribed transactions such as large cash transactions above a certain amount and of cross-border movements of currency.

At the international level, Canada has come under increasing scrutiny for gaps in our anti-money laundering arrangements. A 1997 review by the Financial Action Task Force on Money Laundering found Canada's arrangements to be lacking in certain key areas. The FATF strongly encouraged Canada to meet international standards that required the mandatory reporting of suspicious transactions.

In recent years, the other 25 members of the task force have made great strides in strengthening their anti-money laundering laws. Except for Canada, all other FATF members currently have suspicious transaction reporting requirements in place similar to those contained in this bill. The measures taken in these other countries have facilitated international cooperation among them, in fighting money laundering.

Honourable senators, the bill we are debating today is the government's response to the need for stronger legislation. It updates and strengthens the existing act and will improve the detection, prevention and deterrence of money laundering in Canada. I must emphasize, however, that this legislation was designed with the goals of giving law enforcement agencies the tools they need while at the same time protecting individual privacy. This bill meets both goals.

I should also point out that the bill was developed in consultation with many other stakeholders, including the provinces and territories, the financial community, consumer groups and organizations concerned about privacy issues.

Honourable senators, I should now like to discuss briefly the measures in the bill. Bill C-22 continues the record keeping and client identification features of the existing Proceeds of Crime Act. In addition, it provides for the mandatory reporting of suspicious transactions and prescribed transactions, the reporting of large cross-border movements of currency and the establishment of the new Financial Transactions and Reform Analysis Centre.

I should like to take a moment to describe these new measures because each is important in its own right. Taken together, they constitute a coherent package that will strengthen Canada's anti-money laundering capabilities. These measures will also bring Canada into line with accepted international standards in the fight against money laundering.

I shall begin by discussing the mandatory reporting provisions of suspicious transactions. One of the cornerstones of anti-money laundering systems around the world is the legal obligation to report transactions where money laundering is suspected. By implementing this measure, Canada now joins the other member countries of the Financial Action Task Force on Money Laundering that already have some form of mandatory, suspicious transaction reporting in place.

Regulated financial institutions, casinos, currency exchange businesses and certain other financial intermediaries, such as lawyers and accountants who act in this capacity, will now be required to report any financial transaction in respect of which there are reasonable grounds to suspect that it is related to the commission of a money laundering offence. In addition, specific types of transactions, like the receipt of cash above a prescribed amount, such as $10,000, and large electronic transfers, will be outlined in regulations and must also be reported.

Honourable senators, Bill C-22 also requires that the movement of large amounts of cash money or monetary instruments like travellers' cheques across the Canadian border be declared to Canada Customs. This measure complements the other reporting requirements of the bill by discouraging a shift in money laundering activity across the border.

If individuals or businesses fail to comply, a customs officer can seize the currency. However, any cash or monetary instruments that are seized will be returned once the fine has been paid unless Customs has reasonable grounds to suspect that the money represents proceeds of crime, in which case the money may be forfeited to Her Majesty. Naturally, there will be mechanisms in place for the review and appeal of cross-border seizures and penalties.

The third major element of Bill C-22 involves the establishment of the new Financial Transactions and Reports Analysis Centre of Canada which will be tasked with receiving and analysing all of the reports mandated by this bill and determining whether limited information should be passed on to the relevant authorities. The centre does not have investigative powers.

Honourable senators, it is important to emphasize that there will be safeguards in place to ensure that the collection, use and disclosure of information by the centre will be strictly controlled. The centre will be an independent body acting at arm's length from law enforcement agencies and other agencies entitled to receive information from the centre.

In addition, where the centre has reasonable grounds to suspect that information would be relevant to the investigation or prosecution of a money-laundering offence, the centre will only pass on a specified limited amount of information to the police and other designated agencies.

The information that the centre can disclose will be limited to key identifying information relating to reported transactions such as the name of the client, the numbering of the account involved, the amount of the transaction and other similar information.

Given the limited nature of this information, law enforcement authorities will be required to build a case for prosecution purposes and obtain a court order for disclosure to obtain further information from the centre. The centre will not be subject to subpoenas except in respect to money-laundering investigations and prosecutions. I should note, too, that these safeguards are backed by criminal penalties for any unauthorized use or disclosure of personal information under the centre's control.

Further, the centre will be subject to the Privacy Act and its protections. In addition, each House of Parliament will receive an annual report on the operations of the centre. There will also be a parliamentary review following five years of the committee's operation.

Honourable senators, it is clear from this description, and certainly from a close reading of Bill C-22, that careful consideration has been given to ensuring that this legislation will create a balanced and effective anti-money laundering scheme while protecting individual privacy.

Before closing, I wish to touch on the bill's regulation-making authority concerning the coverage of entities, client information, record keeping and reporting requirements. This authority will provide much needed flexibility to respond quickly to the ever-changing nature of money laundering and to adapt the regime to changes in the way financial intermediaries conduct their business.

This bill also allows greater flexibility to respond to issues raised by stakeholders in complying with the legislation. Extensive consultations have already started on regulations and these will continue in the next few months to further refine the current proposals and develop additional ones regarding the form and manner of reporting. The government's aim is to develop regulations that are consistent with the principles underlying the bill. This means striking an appropriate balance among the objectives of law enforcement, protection of personal information, minimum compliance cost and support for Canada's contribution to international efforts to combat money laundering.

This bill requires a 90-day pre-publication period for regulations and a 30-day notice period for further changes. These requirements go well beyond what is provided in many federal statutes and reflects the importance the government attaches to public consultations in this area.

I have noted institutions and professions covered by this legislation will be required to report suspicious transactions to a new anti-money laundering agency. The government recognizes that guidance will be needed in determining whether there are reasonable grounds to suspect that a particular transaction is related to the commission of a money-laundering offence.

This guidance will be in the form of official guidelines issued by the new agency. This is the approach that is being taken in many other member countries of the Financial Action Task Force, including Australia, the United Kingdom and the United States. The proposed guidelines will be developed in full consultation with stakeholder groups and will reflect the circumstances of the businesses and professions that have a reporting obligation under the bill.


Anti-money laundering guidelines that can serve as models for this purpose already exist. For example, the Superintendent of Financial Institutions issued his guidelines for deterring and detecting money laundering in 1996. In addition, the guidelines and experience of other countries that require suspicious transactions to be reported can be drawn upon in the development of appropriate guidelines for our legislation.

Honourable senators, Bill C-22 is specifically aimed at helping to defeat the vicious cycle of crime by going after criminals where it hurts most, in their wallets. This legislation achieves several things. First, it targets the financial rewards of criminal activity and protects the integrity of our financial system in Canada. Second, it creates a balanced and effective reporting scheme to uncover criminal activity while protecting individual privacy. Third, it complements other federal initiatives against organized crime by helping Canada to meet its international commitments in this area.

It is essential, as we all know, that Canada fulfils its responsibilities, both as a founding member of the Financial Action Task Force on Money Laundering and as a member of the G-8, to cooperate in the international fight against money laundering. Bill C-22 ensures that Canada meets these responsibilities. I urge all senators to move this bill forward to committee and to final stage without undue delay. It is a matter of serious importance to Canadians and to our international obligations.

On motion of Senator Kinsella, for Senator Kelleher, debate adjourned.


Federal Law-Civil Law Harmonization Bill

Second Reading—Debate Adjourned

Hon. Pierre De Bané moved the second reading of Bill S-22, to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and civil law.

He said: Honourable senators, I shall begin by giving you a brief overview of the legal and political context into which harmonization fits. I shall then go on to specifically address the content of the various parts of Bill S-22, in some cases the letter, in some cases the spirit of the law. In so doing, I shall be setting out the key issues of legislative policy raised by this initiative. I shall conclude with the beneficial effects of the harmonization process.


This bill is the first fruit of a long process, the roots of which lie in the Policy for Applying the Civil Code of Quebec to Federal Government Activities of 1993 and the Policy on Legislative Bijuralism of 1995. In addition, it forms part of a series of actions designed to implement the commitments made in the resolutions on the distinct character of Quebec society adopted by both Houses of Parliament in December 1995. Those resolutions recognized that Quebec is distinct because, among other things, of a civil law tradition.


The government committed to harmonization as the new Quebec Civil Code was about to come into effect on January 1, 1994. This blanket reform of Quebec civil law forced changes to the federal legislative texts applicable to Quebec with regard to concepts of private law falling under provincial jurisdiction.

The harmonization process undertaken since then has involved far more than merely updating federal texts. This initiative makes it possible for a broader task to be accomplished: putting the Canadian bijural reality into material form by formally recognizing the coexistence of the traditions of common law and of civil law, as far as provincial private law is concerned.

In order to meet this challenge, the Department of Justice created a Civil Code Section to administer the program, launched by the Government of Canada, for harmonization of federal legislation with Quebec civil law. The object of this program is to ensure that the language of each version of a federal law or regulation reflects the traditions of civil law and of common law. The section has instituted an in-depth analysis of the provisions of some of the 700 federal statutes with a view to harmonization.


Pilot studies were conducted to provide a concrete indication of the nature, variety and breadth of the problems caused by the interaction between federal law and civil law. The areas requiring more meaningful reform were noted. It was also necessary to determine the most suitable methodology for this harmonization, as well as to decide on the most appropriate legislative drafting techniques.

Bill S-22 is part of this process, as its preamble indicates. Besides introducing the legislative content of this bill, the preamble describes the most important characteristics of the program to harmonize federal law with the civil law and establishes its political and legal objectives.


The first part of this bill contains provisions intended to facilitate the harmonization program. As to the residual provisions of the Civil Code of Lower Canada of 1866, which comes under the jurisdiction of Parliament, the analysis of the various legislative options, such as the status quo, the adoption of equivalent federal standards and the repeal of the provisions individually, led to the conclusion that it would be appropriate to repeal all of these provisions indiscriminately. This solution has the advantage of properly meeting the objective intended by the act of harmonization since the identification of the pre-Confederation provisions that are clearly and distinctly under federal jurisdiction is difficult.

With the intent of avoiding legal uncertainty in the province of Quebec, new provisions governing the underlying conditions are proposed in the matter of marriage. It should be noted that these new provisions harmonize perfectly with the Civil Code of Quebec and respect for the values of contemporary society. One of these replacement provisions confirms for Quebec that marriage is a heterosexual institution. This was in fact the aim of a resolution by the House of Commons in June 1999 and is currently acknowledged in Bill C-23.

In the subsequent parts, the bill amends existing federal legislation.


Bill S-22 adds two provisions to the Interpretation Act. The first recognizes the reality of Canadian bijuralism in relation to property and civil rights and the fact that federal law and provincial law complement each other. The second sets out rules to facilitate the interpretation of federal statutes and regulations using common law and civil law terminology in the context of Canadian bijuralism. These rules will also assist in understanding the drafting techniques used to render federal legislation bijural.

Bijuralism is a fact of life in Canada. Stating this principle expressly in legislation that has national application has an important symbolic value. The seriousness of Canadian bijuralism results from the fact that federal law and provincial law complement each other in relation to property and civil rights. Therefore, the Interpretation Act was the appropriate statute in which to state this principle, whose origin can be traced directly back to the foundation that underpins our federal system, namely, the constitutional division of legislative powers.



The bill also amends three laws: the Federal Real Property Act, the Bankruptcy and Insolvency Act and the Crown Liability and Proceedings Act. It also amends 45 statutes in the areas of property, securities and civil liability.


Let me elaborate on these changes to the Bankruptcy and Insolvency Act. This act poses a special challenge in the harmonization initiative, given the unique features of relations between debtors and creditors. Parliament defines the rights of creditors having a claim by referring to the concept and institutions of provincial private law. A good example of this can be seen in the definition of a "secured creditor."

In order to ensure that this act continues to be applied uniformly throughout Canada, and to restore to certain creditors the status they enjoyed prior to the coming into force of the Civil Code of Quebec, it was necessary to amend the definition of "secured creditor" to introduce the new notion of prior claim. In the same vein, the new rules found in the Civil Code of Quebec, involving the giving of property as security, have been included in the definition of "secured creditor."


In addition, other amendments to this law were necessary to respect the civil law community and to better enshrine Canada's bijuralism. In order to prevent the introduction in civil law of common law concepts alien to it, the law was amended to recognize that the courts in Quebec considering matters of bankruptcy and insolvency lack jurisdiction at law and in equity, which is unique to common law.

All of the amendments proposed bear witness to a concern for all legal communities in Canada, whether they use English or French, the Civil Code or common law. By so doing, the drafting of bijural laws and regulations, which will thus be more understandable to all Canadians, is an important aspect of the modernization of federal prescriptive texts. Like Quebec's Civil Code, which ensures greater relevance of the law to the current realities of Quebec by updating the rules of civil law in a language appropriate to the 21st century, the harmonization of federal laws and regulations compensates for the obsolescence of federal law and ensures that it more properly meets the needs of Canadian society.


The initiative will also have a beneficial, albeit indirect, impact on a national scale. As I noted earlier, the formal recognition of bijuralism in both language versions of the statutes will promote the development of a legal vocabulary that is easily understood by the minority language communities, namely, the vocabulary of the common law in French and the vocabulary of civil law in English. In addition, clarifying the intent of Parliament regarding the suppletive law applicable to federal enactments will ensure better interaction with the private law of the other provinces, in particular, when the common law applicable in these provinces is amended by provincial legislation, the substance and scope of which differ from province to province. Canadian bijuralism will also enable us to derive benefits from each of the two legal systems. The presence in Canadian legislation of elements taken from both systems will enrich federal law, since it will be possible to improve the law in Canada by comparing and including rules from both systems of law.

Finally, the harmonization bill, following upon the 1995 resolutions of both Houses of Parliament, is respectful of the differences existing within the country.


Finally, the initiative will be advantageous to Canada internationally. Canada's bijural nature leads to respect for two of the great contemporary legal traditions: the civil and the common law systems.

As we enter a new millennium, the globalization of markets and Canada's ever-growing openness to various countries continue to have an impact on citizens. In this context, Canadian bijuralism makes possible a better understanding of the laws of countries belonging to one or the other of these systems — close to 80 per cent of the countries in the world.

It gives Canada an edge when international rules containing concepts from one or the other of these systems are drawn up, and makes it easier to adapt these rules.

In addition, other bijural countries will be able to follow Canada's lead, which is without equal or precedent. The program to harmonize federal law with the civil law of Quebec is therefore singularly important for the Canadian and international legal community. Canadian bijuralism is a promising system at the dawn of a millennium characterized by innovation, and is a unique characteristic which Canada ought to be proud to possess. If memory serves, it was Justice Bastarache of the Supreme Court who spoke about the way in which these two legal systems can mutually enrich one another.

With respect for these goals, particularly the harmony which ought to characterize our modern and bijural legal system, I urge all honourable senators to support Bill S-22.

On motion of Senator De Ware, for Senator Beaudoin, debate adjourned.


Special Senate Committee on Bill C-20

Motion to Appoint—Notice of Motion for Allotment of Time for Debate Withdrawn

On Motion No. 2:

That, pursuant to Rule 39, not more than a further six hours of debate be allocated to dispose of the following motion:

That a special committee of the Senate be appointed to consider, after second reading, the 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 Secession Reference;

That, notwithstanding Rule 85 (1)(b), the committee be comprised of fifteen 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 the committee;

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.

That when the debate comes to an end or when the time provided for the debate has expired, the Speaker shall interrupt, if required, any proceedings then before the Senate and put forthwith and successively every question necessary to dispose of the motion; and

That any recorded vote or votes on the said question be taken in accordance with the provisions of Rule 39(4).

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, Item No. 1 under the heading "Motions" is a notice of motion concerning time allocation that I gave with respect to striking the committee to receive Bill C-20. I have not moved this motion and I ask at this time that it be withdrawn from the Order Paper.

The Hon. the Speaker: This is Item No. 2, is it not?

Senator Hays: Honourable senators, it is not clear to me whether it is Item No. 1 or Item No. 2, but for purposes of certainty, it is the motion of which I gave notice of time allocation with respect to the creation of the special committee to receive Bill C-20. I am confused as to the number, but I should like it to be withdrawn.

The Hon. the Speaker: It is withdrawn. It has not been moved, so no further action is required.

Motion withdrawn.



Marine Liability Bill

Report of Committee Adopted

The Senate proceeded to consideration of the fourth report of the Standing Senate Committee on Transport and Communications on Bill S-17, respecting marine liability and to validate certain by-laws and regulations, with amendments presented in the Senate on May 9, 2000.

Hon. Lise Bacon: Honourable senators, I move that the report be adopted.

Honourable senators, I wish to begin by thanking the senators on the Transport and Communications Committee who have, once again, worked seriously and diligently. I wish to draw particular attention to the quality of the work done by Senator Furey, who sponsored the bill.

The witnesses at our hearings made it possible for the committee members to see just how unanimous the support of the Canadian shipping industry was on Bill S-17, respecting marine liability.

The government's intention with Bill S-17 is to equip Canada with a modern and complete regime of marine liability. The bill will consolidate existing marine liability regimes. It will also make it possible to adopt a new regime concerning shipowners' liability to passengers and apportionment of liability.

The various stakeholders in the shipping industry support this rationalization of legislation on marine liability. In its brief to the committee, the Canadian Maritime Law Association expressed its pleasure in learning that soon there will be but one law, encompassing regimes relating to the carriage of both goods and passengers by water, the limitation of liability for maritime claims and conventions on oil pollution.

Most observers agree that Part IV constitutes the core of Bill S-17. Part IV establishes a new regime of shipowners' liability to passengers in order to ensure that, in the event of losses, particularly important ones, claimants will be entitled to a simplified compensation regime. The new regime is consistent with the 1974 Athens Convention, as amended in 1990, which establishes a uniform liability regime for the carriage of passengers by sea. Similar regimes are already in force in many countries. In addition, the bill will render inoperative the clauses sometimes found on passengers' tickets exempting carriers from civil liability.

As I have already mentioned, the shipping industry is in favour of the bill. However, when representatives of the Canadian Maritime Law Association appeared before the committee, they proposed a slight amendment to paragraph (b) of clause 37(2). According to the association, the original wording of the paragraph could have the undesirable effect of extending the application of the Athens Convention to the carriage of any passenger by water under a contract or otherwise.

In other words, according to the association, the original wording of the bill could have the unintended effect of also including passengers on pleasure craft.

The Minister of Transport responded quickly to the concerns expressed by the Canadian Maritime Law Association and proposed two amendments clarifying the scope of the bill. The purpose of the amendments is to restrict the application of the Athens Convention to passengers on commercial ships. The intention was not to apply this convention to passengers on pleasure craft. The committee feels that the proposed amendments are a satisfactory response to the concerns raised by the Canadian Maritime Law Association.

The Hon. the Speaker: Honourable senators, if no other senator wishes to speak, it is moved by Senator Bacon, seconded by Senator Wiebe, that this report be now adopted.

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

Hon. Senators: Agreed.

Motion agreed to and report adopted.


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

On motion of Senator Hays, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.

Bill to Change Name of Electoral District of Rimouski—Mitis

Second Reading—Debate Adjourned

Hon. Bill Rompkey moved the second reading of Bill C-445, to change the name of the electoral district of Rimouski—Mitis.—(Honourable Senator Rompkey, P.C.).

He said: Honourable senators, this is "one of those bills" that we get from time to time. We know not whence they come nor whence they go. They disappear into the great maw of Parliament. It is my duty today to move it.

Some honourable senators will want to make representations on this bill. We had referred a previous similar bill to the Standing Senate Committee on Legal and Constitutional Affairs. That bill was standing in the name of Senator Nolin.

Some honourable senators have concerns. I, myself, have some concerns about the process here. I would suggest that we hold those discussions, pro and con, in committee.

On motion of Senator Kinsella, debate adjourned.

Business of the Senate

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I move that we let stand all remaining matters on the Order Paper and Notice Paper that have not yet been addressed remain and that we revert to Government Notices of Motion.

The Hon. the Speaker: Honourable senators, is leave granted to stand all other items in the same order as they are presently listed on the Order Paper?

Hon. Senators: Agreed.

Privacy Commissioner

Notice of Motion to Receive in Committee of the Whole

Leave having been given to revert to Government Notices of Motion:

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, May 17, 2000, I shall move:

That the Senate do resolve itself into Committee of the Whole at 4:30 p.m. on Tuesday, May 30, 2000, in order to receive the Privacy Commissioner, Mr. Bruce Phillips, for the purpose of discussing the work of his office.


Leave having been given to revert to Government Notices of Motions:

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 17, 2000, at 1:30 p.m.;

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 position.

Motion agreed to.

The Senate adjourned until Wednesday, May 17, 2000, at 1:30 p.m.