Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 69
Tuesday, June 20, 2000
The Honourable Gildas L. Molgat, Speaker
Table of Contents
Tuesday, June 20, 2000
The Senate met at 2:00 p.m., the Speaker in the Chair.
The Hon. the Speaker:
Honourable senators, I have the
honour to inform the Senate that the Clerk has received
certificates from the Registrar General of Canada showing that
the following persons, respectively, have been summoned to the
Betty Kennedy, O.C.
Raymond C. Setlakwe
The Hon. the Speaker
having informed the Senate that there
were senators without, waiting to be introduced:
The following honourable senators were introduced; presented
Her Majesty's writ of summons; took the oath prescribed by law,
which was administered by the Clerk; and were seated:
Hon. Betty Kennedy, O.C., of Milton, Ontario,
introduced between Hon. J. Bernard Boudreau, P.C., and
Hon. Landon Pearson.
Hon. Raymond C. Setlakwe, of Thetford Mines, Quebec,
introduced between Hon. J. Bernard Boudreau, P.C., and
Hon. Lise Bacon.
The Hon. the Speaker informed the Senate that the
honourable senators named above had made and subscribed the
declaration of qualification required by the Constitution Act,
1867, in the presence of the Clerk of the Senate, the
Commissioner appointed to receive and witness the
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, it is my pleasure to extend a warm
welcome to our two new colleagues, Senator Betty Kennedy and
Senator Raymond Setlakwe. Both new senators have contributed
significantly to their communities, to their regions and to
Today, it is my great honour to welcome to the Senate an
Officer of the Order of Canada, Senator Betty Kennedy. Senator
Kennedy is a distinguished broadcaster, journalist and author.
I have no doubt that her experience on the award-winning
Front Page Challenge will assist her during her time with us in
the Senate. Perhaps it might even help me with Question Period.
Her background in journalism will serve her well in this place,
allowing her to quickly adjust to her new surroundings. We can
expect her to become an active contributor to our work in
In addition to her many achievements, Senator Kennedy has
given freely of her time to many charitable and voluntary
organizations. These include honorary national chair of the
Canadian Cancer Society, honorary chair of the annual
fundraising luncheon of the Canadian Save the Children
Foundation, and an ambassador for the St. John Ambulance
millennium celebrations. She was the first non-medical member
of the Complaints Committee of the Ontario College of
Physicians and Surgeons, and a member of the college's 1990
Task Force on the Relationship Between Physicians and the
Pharmaceutical Industry. All of these past experiences will no
doubt assist her as she begins with this new challenge.
Senator Kennedy, we congratulate you on your appointment.
We offer you all our best wishes as you assume your new
Hon. Senators: Hear, hear!
Senator Boudreau: Honourable senators, Senator Raymond
Setlakwe is a successful entrepreneur and lawyer. He is President
and CEO of A. Setlakwe Ltd., a retail chain with 17 stores and
boutiques throughout Quebec. He is also President and CEO of
Saint-Hilaire Inc., an importer of men's and women's
Although he is busy, Senator Setlakwe has time to contribute
to many voluntary organizations. He is honorary chair of the
fundraising campaign of the CÉGEP at Thetford Mines, a
member of the Thetford Mines Hospital Foundation, a member
of the Bishop's University Foundation and has been involved in
the Laval University Foundation fundraising campaigns.
Senator Setlakwe can also count among his many
achievements being a director of the Research Fund of the
Montreal Heart Institute, a member of the Sherbrooke University
Corporation and a member of the Bishop's University
Senator Setlakwe, your strong commitment to public service
will assist you in our work here in this red chamber. Welcome to
the Senate of Canada.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, I wish to join with the Leader of the
Government in the Senate in welcoming our two new senators.
However, I regret that notification of the swearing-in ceremony
only reached us in caucus a little over an hour ago. Therefore, it
has been impossible to prepare appropriate remarks. Suffice to
say that after hearing the resumés of our two new colleagues,
there is no doubt that they will bring talents from which we shall
Honourable senators, on behalf of all opposition senators,
I offer my sincere congratulations on your appointment and wish
you good luck in your new responsibilities.
Hon. John Lynch-Staunton (Leader of the Opposition):
Honourable senators, while it is easy to find fault with any prime
minister whose term in office is marked by constant controversy,
even the most critical and biased observer can find in him or her
some positive decisions. What better example of this than the
Honourable William Kelly, whose summons to the Senate in
1982 resulted from a flash of genius on the part of Mr. Trudeau.
His good judgment has been vindicated ever since.
Only a month from now, Senator Kelly will reach the
mandatory retirement age. I wonder if it is wishful thinking that
in looking for a replacement, the present prime minister will be
inspired by his predecessor.
Among the many characteristics that set Senator Kelly out
during the past 18 years, the one that strikes me the most is his
lack, or even distaste, for partisanship. He is, and I say this in the
most objective sense, of the old school, that diminishing one
which believes that sober second thought, harmony, goodwill and
collegiality should be the hallmark of this place, something that
has not always been true over the last few years.
Bill succeeded Orville Phillips as a PC caucus whip. The
contrast in approach could not have been sharper. Orville's was
best exemplified by his well-used cat-o'-nine-tails that left many
scars, particularly during the GST debate.
Bill, on the other hand, believed more in a quiet and courteous
approach, which was so successful that on more than one
occasion, he did not even show up for the vote that he had
Bill's non-partisanship served Senate committees well,
particularly National Finance, Energy, Internal Economy and
Banking. He took a special interest in terrorism and in Canadian
counterterrorism activities as an active participant and chairman
on three special committees addressing the issue, the last being
the Special Senate Committee on Security and Intelligence,
which reported in January 1999. The government's response last
December testifies to the diligence of the committee and, in
particular, of its chairman. The government said, in its
answer, that the committee report will serve to guide government
action aimed at further strengthening Canada's national security
Bill, you have brought to the Senate outstanding experience in
private business and in community affairs, which has been of
immense benefit to the Senate. We are all most appreciative.
I should like to wish you and Betty the very best as you prepare
to leave us. You will be sorely missed.
Hon. Senators: Hear, hear!
Hon. B. Alasdair Graham: Honourable senators, I think it is
true to say that it is a tough job to begin to list all of Senator
Bill Kelly's accomplishments and contributions to his chamber,
to his beloved province and, indeed, to his country. As someone
who has truly admired and respected Senator Kelly's well-known
fair-mindedness, his commitment to principle and his
determination to get things done over the years, I find it rather
difficult to imagine Senate committees without him.
Senator Lynch-Staunton paid tribute to Senator Kelly's work
on committees ranging from National Finance and Energy to
National Defence and Internal Economy, and, more recently, to
the Standing Committee on Privileges, Standing Rules and
Orders and the Subcommittee on Human Resources. When one
considers his remarkable life in totality, it becomes clear that for
Bill Kelly, to use William Van Horne's famous words, nothing
has been too small to know; nothing has been too big to attempt.
Senator Kelly has served as director of the Council on Drug
Abuse. He has served as chairman of the Board of Governors at
Ryerson Polytechnic University. He was co-chairman of the 1984
task force on Crown corporations. In the business world, he has
been director of numerous national and international companies
and financial institutions. He has stood as governor of Canada's
Sports Hall of Fame and a commander of the Order of
St. Lazarus of Jerusalem.
Senator Kelly gained extensive international experience in
energy-related consulting services around the world. That
international experience was broadened between 1994 and 1997
when he served as rapporteur and delegate of the second
committee to the OSCE Parliamentary Assembly in Vienna.
Honourable senators are all aware of Senator Kelly's lifelong
interest in the study of terrorism and his dedication to the very
critical objective of strengthening the safety and security of
Canadians. We all followed the outstanding work that he did as
chairman of the Special Senate Committee on Terrorism and the
I think all of us, as a by-product of Senator Kelly's forceful yet
always constructive and tightly reasoned analysis, have been
prompted to reflect very seriously about the problems of
individual nations in dealing with national security in
cyberspace, a virtual world where boundaries disappear. As
someone who led two committee studies on terrorism in the
1980s, one of which included the still-unsolved bombing of the
Air India jet, Senator Kelly has become an experienced voice of
reason in an area that most people try not to think about until a
serious calamity erupts. His has been a continuing voice, calling
for vigilance in the defence of the values and the freedoms
Canadians hold dear and yet which Canadians too often take for
granted. The message: Be alert, be watchful, because in the era
of terrorist incidents, such as the Oklahoma City bombing and
the nerve gas attack on the Tokyo subway system, vigilance in
the defence of freedom must become a natural reflection in the
lives of all of our people.
As I reflected upon Bill's contributions to this area, I thought
back to a young lieutenant, William Kelly, of the Second Field
Engineer Regiment during World War II. I thought of the
wonderful regiment's role as put in the words of the field
engineers themselves. Simply stated, the two roles of engineers
are to assist friendly troops, to live, move and fight, and to assist
in denying the same abilities to the enemy, and to fight as
infantry when required.
Senator Kelly, you have spent many years in the service of
your country, living up to your regiment's role. You have
counselled vigilance in a world where virtual realities have
turned traditional concepts of security upside down. Always you
have tried to deny the ability to live, move and fight to the
enemies of our country and the democratic freedoms and
institutions that we as Canadians hold dear.
Honourable senators, I believe all of us, on both sides of this
chamber, have been moved by the depth of your commitment in
the continuing struggle for what is right.
I think now of an old friend of yours, former premier
Bill Davis of Ontario, who once said that to be Canadian is to
live in relative calm and with great dignity. As we say goodbye
to a very fine senator and friend, I think of words like "calm" and
"dignity" and the traditional very fine attributes of a true
Canadian gentleman. I think of a quiet dignity and wonderful
good humour and fair-mindedness that carried through all of
Bill Kelly's time with us.
It was once said that no person was ever honoured for what he
received. Honour was always the reward for what he or she gave,
so let us add "honour" to the long list, Senator Kelly, because
over an action-packed tenure in this chamber, you have given so
much, and we shall always be in your debt.
Hon. Lowell Murray: Honourable senators, as has been
noted, Senator Kelly, a Progressive Conservative, was appointed
to the Senate in 1982 by Prime Minister Trudeau, a Liberal.
Thereby hangs quite a tale. Time does not permit me to do full
justice to it today, but I shall try to give honourable senators a
brief outline of the plot and a sketch of the main characters.
It all started, as many of Mr. Trudeau's initiatives did, with a
quite harmless, indeed laudable, constitutional theory. The theory
was that the effective functioning of our parliamentary system
required not only an upper house, although we should be grateful
for such an acknowledgement from the Chrétien government
today, but an upper house in which Her Majesty's Loyal
Opposition had a critical mass, and I do mean critical. The
numbers on the opposition side had been declining for some
years. Prime Minister Trudeau undertook to replace any
Progressive Conservative who retired with another Progressive
Conservative who would be nominated by the Leader of the
Opposition in the House of Commons, who, in those days, was a
Under this rubric, the opposition ranks were strengthened and
the Senate itself was enhanced by the appointments of such
distinguished Canadians as the former Nova Scotia premier
G.I. Smith and the former Manitoba premier Duff Roblin. The
working arrangement was that when a vacancy occured due to a
Tory senator's retirement, the Tory leader would submit a list of
names from which the Prime Minister would choose the
When the time came in 1982 to fill the Ontario vacancy, some
of the leading political luminaries in the country became engaged
in a process so labyrinthian and Machiavellian that even
Mr. Trudeau would have admired it if he were following it,
which I very much doubt.
The Right Honourable Joe Clark was involved, of course, and
he had his own favourite nominees for the vacancy — Senator
Kelly not among them. His chief of staff swung into action on his
behalf, interfacing, as they say now, with his counterparts in the
Trudeau PMO. The chief of staff was Peter Harder, who has
since vanished into the mists of the senior federal bureaucracy.
In Toronto, the fabled Big Blue Machine was activated.
Bill Kelly had been a charter member, a close advisor to Premier
Davis and, indeed, the chief bag person for the provincial Tories.
Their immediate strategic objective was to ensure that
Mr. Kelly's name was on the list that Mr. Clark submitted to
Prime Minister Trudeau — that is all they asked — and it was
strongly implied that the honour of being on the list would be
sufficient for a person as modest as Bill Kelly was — then.
This presented no great difficulty for Mr. Clark and his faithful
emissary, Mr. Harder. After all, there would be five Tory names
on the list, and ample opportunity for Mr. Clark and Mr. Harder
to indicate, with a wink and a nudge, to Mr. Trudeau that some
candidates were more welcome, if not more worthy, than others.
It is, of course, well known, even in Liberal circles, that
Mr. Trudeau was not always as sensitive as he should have been
to winks and nudges. However, winks and nudges were the
specialty of his chief of staff, who was Tom Axworthy. A more
winkable and nudgeable operator never graced the PMO — with
the possible exception of Jim Coutts, who was his predecessor,
mentor and idol.
The federal Tories were serene and confident, not for the first
time, that our universe was unfolding as it should. Trudeau and
Axworthy would surely not be capable of treachery. Perhaps not,
but what about Bill Davis, Ed Stewart, his deputy minister,
Norman Atkins, and notably, famously, notoriously, the
indefatigable Hugh Segal, now vanished into another mist, the
apolitical, non-partisan Institute for Research on Public Policy?
Segal went to work. This was in the aftermath of the patriation
caper of 1982, and federal Liberals could be forgiven if, in their
euphoria, they thought there might be other issues on which they
and Queen's Park could make common cause, thereby
marginalizing the federal Tories. Hugh Segal was not one to
discourage their optimism. He may even have fed it. I have no
doubt that Michael Kirby was enlisted, perhaps even Michael
Pitfield, maybe even Joyce Fairbairn. This was no mere political
cabal; this was a major megaconspiracy of federal-provincial
So it came to be that on December 23, 1982, just before
Christmas, William McDonough Kelly was summoned to the
Senate, just a couple of weeks after the aforementioned Pitfield
and just a couple of years ahead of the aforementioned Kirby,
Fairbairn and Atkins. Axworthy has gone to his reward in
Montreal, and of the original co-conspirators, only Segal is left
pressing his nose to the senatorial window. Perhaps it is that
conspiracies, like revolutions, devour their children. In any case,
with Senator Kelly leaving shortly, it is not too late for Prime
Minister Chrétien to bring Segal in out of the cold as we
approach the eighteenth anniversary of patriation.
By way of postscript, let me say that I do not recall all of the
other three or four names on the list that Mr. Clark submitted to
Mr. Trudeau. I do remember one of them. It was that of
Hal Jackman, Prince Hal, later to be named Lieutenant-Governor
of Ontario, and more recently to metamorphose as the Bay Street
guru of the egregious Canadian Reform Alliance Party. Think of
it, colleagues! Instead of bidding farewell today to our esteemed
colleague, Bill Kelly, we might be enduring the pontifications of
our first CRAP senator, Senator Hal Jackman, who would today
still have another six or seven years in our midst. The thought is
enough to inspire me to say thank God for Tom Axworthy and
Some Hon. Senators: Hear, hear!
Senator Murray: Thank God for Hugh Segal and Bill Davis.
Some Hon. Senators: Hear, hear!
Senator Murray: I shall go so far as to say thank God for
Honourable senators, let me say that the process has worked.
Parliament has had the services of an excellent senator these past
18 years. I acknowledge that, at times, I found it slightly galling
that, having arrived here under such blatantly political auspices,
with such a conspicuous political background, he proceeded to
lecture us on the virtues of a non-partisan Senate. However, one
day, in December 1990, Liberal senators saw him rise in his
place, out of turn, but did not protest, thinking he was about to
subject us to another homily on non-partisanship. Imagine their
chagrin when it turned out to be a commando-style procedural
intervention that succeeded in putting an end to the filibuster and
passing the GST bill. This and future generations of bean
counters in the Finance Department, led by Paul Martin, will be
I hasten to add, as Senator Lynch-Staunton has mentioned, that
during part of my time as government leader in this place,
Bill Kelly served as caucus chairman and chief government
whip. I was always grateful that he succumbed to the entreaties
of Prime Minister Mulroney, and mine, to take on this thankless
task. As we all know, the function of whip is indispensable to our
parliamentary system. It requires sound judgment, integrity,
loyalty and discretion, qualities that Senator Kelly possesses to a
high degree, indeed qualities that he exemplifies. He has been an
adornment to the Senate, a valued colleague, and at all times a
very good friend, and I am most grateful that we have had the
benefit of his skills, his experience and his dedication to what is
best for Canada.
Hon. Senators: Hear, hear!
Hon. Colin Kenny: Honourable senators, I also rise to pay
tribute to Senator Kelly. We served together in the Senate for
15 years, through rough times and smooth. We served together
on Internal Economy, the Personnel Subcommittee, the Security
Subcommittee and the Audit Subcommittee. I served on two of
his three Terrorism and Public Safety Committees. Working with
Bill, we discovered he loathed partisanship — surprising for a
Tory. Bill was always thorough, logical, hard-working and
On a personal basis, occasionally we disagreed, but far more
often we were of the same mind. Bill has always had a sense of
humour and, more important, a sense of perspective. The best
way to characterize Bill is as a true gentleman. The words one
would associate with him are integrity, courtesy, honour
Bill, you are a good friend and we are going to miss you.
Hon. Senators: Hear, hear!
Hon. Marcel Prud'homme: Honourable senators, Senator
Graham has described Senator Kelly as "A true Canadian
gentleman." I also want to join with what has been said by
Senator Murray and others.
On a personal note, the first time I really spoke to Senator
Kelly was when I arrived in the Senate. As you may well
remember, I arrived under a terrible cloud given to me by one
party that was not, of course, the party of Senator Kelly. He was
at that time the chief government whip, and it was at the end of a
tenure of office of a government and he had to find me
accommodation. Of course, the other whip was not too happy to
see my entrance in the Senate as an independent senator. I tested
right away who is who that day when I was appointed.
I must say, for the benefit of the new senators, yes, I have been
40 years a Liberal, was appointed by a Conservative prime
minister and sit as an independent. However, if Mr. Trudeau was
daring by appointing a Conservative to the Senate, the Right
Honourable Prime Minister Mulroney must have had something
else in mind when he chose a Liberal to sit as an independent,
because I am sure I was the first one who succeeded in sitting as
an independent. Many others tried before, but they had to sit as
Conservatives; otherwise, they would not have been appointed to
the Senate. This is a small part of history.
I was well received and well treated. He treated me as he
treated everyone. On the very last day he said, "Marcel, I cannot
find accommodation for you. Every door is closed. Only a little
office at the entrance is empty. It is sometimes used by the
guards. At one time, former senator van Roggen used that place."
I did not say a word. I was afraid to lose it if I showed too much
enthusiasm. I knew that room inside out. For years and years, I
sat down at night with Senator van Roggen, who was then
chairman of the Foreign Affairs Committee while I was chairman
of the Foreign Affairs Committee of the House of Commons. We
dealt together. We organized meetings with Gorbachev, and so
on. I knew that room well, and I knew that it was a prime place,
even though my staff had to be located on the sixth floor. I wish
to thank him for that.
The second time I got to know him is when I had the great
honour — and, do not get excited about this — of seconding the
motion that created the famous special committee on terrorism
and security. I was the one who seconded the motion and
attended the meetings, although as a non-member because the
issue regarding independent senators had still not been resolved.
We want to work, but that issue has not yet been resolved.
Senator Kelly gave me good advice. However, the authorities of
the day have not yet found a solution to the question of
independent senators being members of committees.
Having said that, I was very honoured to sit with Senator Kelly
even in the in camera meetings. I am not sure that some of the
greatest people in security told us the whole the truth. As we
were unable to prove that they were lying to our faces, we could
do nothing. However, I am positive that we were lied to by some
of the highest people in security services.
Senator Kelly did a fabulous job. I would say to the new
senators, especially, that these reports of that committee which
was chaired by Senator Kelly should be read again with an eye
for the year 2001. You will then understand what Canada and the
world will have to face.
I was happy and honoured to meet with Senator Kelly. I totally
endorse what Senator Graham has said. This shows that some
senators do listen to what is being said by their colleagues and do
not only make speeches. I listened attentively to what Senator
I have met a true Canadian gentleman in the person of
Senator Kelly. I salute him. I hope to see him as long as he
Hon. Jerahmiel S. Grafstein: Honourable senators, the
lamented looming retirement of the Honourable William Kelly
will leave the Senate leaner, lighter, looser, and less learned.
Bill, as we have heard, was a life-long Conservative. Before Bill
was called to the Senate by the Right Honourable Pierre Elliott
Trudeau, he was already a legend in my home province of
Ontario. He was a legend in Ontario politics.
Bill was a key engineer who helped to construct, motivate and
run the Big Blue Machine that was so successful for many
decades in Ontario. If the truth is now to be known — since we
are now making mea culpas — the truth is that the little red
machine in Ontario was modelled on the Big Blue Machine, with
not inconsiderable success.
Bill was always a graceful and honourable opponent. He was
tough, but fair. He was a strong, silent and influential advisor to
successive provincial governments and premiers — governments
and premiers who always clung or hung on to the middle road in
Ontario. The fight in Ontario has always been for the middle
ground and, dare I say, the progressive liberal middle ground.
Bill was always a leader in moderation in all things, including in
politics and in the Senate.
In his duties here, Senator Kelly approached his work with
precision, passion and principle. Above all, he was a man of clear
common sense. His work on committees, especially the
committees dealing with intelligence, security and terrorism —
that malignant disease of the last part of this century — is well
known to all. He believed that Parliament had to play a more
important and crucial role in its oversight on matters of national
interest such as intelligence and security. He felt — and I believe
he is right — that Parliament had not properly provided that
oversight to which the public is it entitled.
What is less known about Bill is his work on behalf of Canada
overseas, particularly at the OSCE, where 55 countries, including
Canada and the U.S., are voting members. As a rapporteur at that
very distinguished body, he was responsible for drafting
multifaceted, complex policy papers and then dealing with
amendments that flowed in from 55 countries. Again, in Europe,
Bill led the way with concision, skill and diplomacy. He
navigated the ever difficult and complex shoals of international
clashes. In the process, honourable senators, he raised respect for
Canada across the face of Europe.
Bill, the Senate will miss you and your astute talents and
capabilities. You helped to reconstruct and burnish the quiet
reputation of the Senate, true to its mandate, as a chamber of
sober second thought. Bill, you leave the Senate with a repository
of distinguished work. Canada remains indebted to you for your
outstanding qualities of passion and reason, all in the service of
the Canada you served so well in war and peace. You will remain
in my mind always as an officer and a gentleman. Bill, may the
wind always be at your back. God speed!
Hon. Roch Bolduc: Honourable senators, I have known
Senator Kelly since I first came to the Senate 12 years ago.
Senator Kelly is a businessman of experience, and a person who
expresses his ideas on public policy with conviction and whose
sense of public interest will accept no compromise.
At his invitation, I enjoyed the most interesting experience of
sitting on the board of a major company. He was chairman of the
board and as such showed his ability to ask pertinent questions of
the senior executives, whether these related to production
problems, marketing, administration or investments.
Senator Kelly is a man who triggers heated discussions and
who possesses a keen sense of efficiency when it comes to the
decision-making process. This disciplined and pragmatic man
counts among his accomplishments here the attentive eye he has
kept on Canada's defence and security activities. He does so not
only in Canada but also in such international forums as the
Although Senator Kelly is leaving us, I know he is not taking
retirement. I wish him and his wife many happy days to come.
Hon. Pierre De Bané: Honourable senators, I should like to
add my tributes to those that have already been paid to Senator
Kelly. An engineer by profession, Senator Kelly was extremely
active in the energy field in Canada, Europe, Asia, the Far East
He then developed an interest in major political issues,
European security in particular. Remarkably, even before coming
to this institution, he was also extremely active within various
What I have been most impressed by in Senator Kelly is the
fact that he has always assumed his duties in the Senate in an
extremely high-minded manner, putting the public interest well
above political considerations, although remaining an important
figure in the Progressive Conservative Party.
I want to pay tribute to you, Senator Kelly, because you are
one of the people who, when you join an institution, are not
honoured; rather it is the institution that is honoured by your
joining. Thank you very much.
Hon. Senators: Hear, hear!
Hon. Peter A. Stollery: Honourable senators, I did not know
Senator Kelly before he came here, though we both come from
the same part of Ontario. What a decent and honourable senator
he has been. Unlike some senators, he has participated in the
activities of the Senate and has made his mark on public business
in Canada. That is not something I would say about everyone. He
is a man who will be missed by the Senate. I am not suggesting
that other people are not also honourable senators, but Senator
Kelly has come here and has made a tremendous contribution to
Canadian public life, and I, for one, will miss him.
Hon. Senators: Hear, hear!
Hon. Joyce Fairbairn: Honourable senators, this is a sad day
for me. I can honestly say that Senator Bill Kelly has been one of
my finest friends and colleagues in the Senate since I came here
16 years ago.
I listened carefully to Senator Murray. Over the years, my
friend Mr. Trudeau has often been accused of being
Machiavellian; however, I must say that Senator Murray's story
indicates far more devious and complex machinations from the
other side of the issue of the appointment of Senator Kelly than
I am sure the former prime minister could ever have thought.
Apart from his politics, I always liked Bill Davis. I was
confident that, at the time, when having the opportunity to put in
a word, he would come up with the name of a pretty good fellow.
I did not know Senator Kelly at the time. I was a little curious
when I heard that Mr. Davis was dispatching his premier bag
person to fill this role. I expected perhaps a portly chap in
pin-striped trousers, puffing away on a cigar. We did get the
cigar-puffing, regrettably, but there he was, trim and gracious,
full of warmth and good humour — up to a point, of course.
Senator Murray, again, has brought up a rather painful memory
of the day that Senator Kelly rather forcefully snookered our side
during the GST debate. After my original outrage, I never really
held that against Bill personally. I thought he had had an
unfortunate lapse, probably brought on by the long hours and
pressures of the GST debate.
Senator Kelly has not only made a contribution of work to this
place, but his personality and his character have, time and time
again, shone through in our debates and indeed even in some of
our disagreements. Many of us will leave our position in the
Senate with old Hansards full of speeches, but Bill Kelly can
walk out of this place having done something tremendously
substantial. That is the work that he did on not one, not two, but
three committees that focused on an issue that, in the beginning,
was deemed too hot to touch. He had one heck of a time putting
together the committee that first studied the issue of terrorism
and public safety.
I listened to Senator Kenny saying what a congenial group this
committee was. I guess it was, but I do remember the battles of
two titans, between Senator Kenny and Bill Kelly, and thinking
that I would never again want to be on a committee with the two
of them. Nonetheless, Senator Kelly led that committee with the
military precision and efficiency learned in his past. He did it
meticulously. He did it carefully. The topic was very difficult
I shall always remember, Bill, one of the conclusions that
came out of your work, a conclusion that had an impact all across
this country. That is the emphasis you placed on police forces
working together, working together in times of crisis, working
together to share training opportunities and information and
expertise. I believe that, in this country, and certainly in your
province of Ontario, there has already been evidence that the
spotlight that you put on this issue has had a favourable effect,
which will likely only grow as the years go on.
You have left us a legacy. We shall miss your presence here;
I shall miss your presence here. I simply wish you all of the
happiness you can find. I shall not even use the word
"retirement" because I do not think you ever will retire. I believe
you will go on to make public contributions and to support the
principles by which you have always abided in public life.
We are all the better for having had you here. Thank you.
Hon. William M. Kelly: Honourable senators, this has been a
rather difficult afternoon for me. I can only say that I wish you
had said nice things like that when I was alive. On a serious note,
however, thank you very much for your remarks.
I want to correct one thing, though, in Senator Murray's
dissertation. I want to explain to Senator Fairbairn, too, who was
shocked at my fall from grace in apparently engineering the
termination of this endless GST debate. I think Senator
Fairbairn's first sense was that I had been corrupted by Senator
Murray, because a decent chap like myself would never have
done a thing like that, and that is perfectly true. It was all
Murray's idea. It was too late by the time I realized I had been
led down the path.
Honourable senators, I shall not go on endlessly. I thank you
again. It has been an honour for me to serve with a group like
this; it really has. The talent that sits in this chamber is beyond
anything I have been associated with since I left school.
If I have one concern it is a concern that is shared by other
honourable senators, and that is the general attitude held by
people toward this chamber. I do not believe the Jack Aubrys of
the world, and their comments do not bother me in the least, nor
should they bother you. You do wonderful, wonderful work here.
You always have. Instead of struggling away to change the small
minds that yip every now and again, continue to do what you are
doing. That is all that is necessary. You are just great. I thank you
so much for the time we have spent together.
Hon. Senators: Hear, hear!
The Hon. the Speaker:
Honourable senators, I call your
attention to the presence in our gallery of a distinguished visitor,
His Beatitude Ignace Moussa I Daoud, Patriarch of Antioch, and
spiritual leader of the world's Catholic Syriacs.
Your Beatitude, on behalf of all senators, I welcome you to the
Senate of Canada and wish you a pleasant stay in our country.
Hon. Senators: Hear, hear!
Cost of Transferring Air Miles
Hon. Erminie J. Cohen:
Honourable senators, these days,
whenever we enter this chamber, someone has another frustrating
Air Canada story to relate. A letter to the editor in today's Globe
has prompted me to add to the running list of Air
Canada horror stories.
When Peter Dawson's father died recently, he discovered that
Air Canada Aeroplan points are inheritable as property. However,
there was, of course, a catch. To transfer the points to the
widow's account, Air Canada imposed a whopping $107 service
charge, including GST. As Mr. Dawson of Annapolis Royal in
Nova Scotia pointed out, an electronic transaction of this type is
done by our banks for generally a few dollars.
Is Air Canada's monopoly so chintzy that it allows the
organization to reward their loyal customers by gouging their
heirs when they die? Surely, as Mr. Dawson stated, these people
will be the first to fly with new competitors when a range of
choices become available, and, honourable senators, so will we.
Official Language Minority Communities
Hon. Jean-Robert Gauthier:
Honourable senators, the
Commissioner of Official Languages, Dr. Dyane Adam, had stern
words regarding the official languages in Canada. According to
Dr. Adam, the government is not meeting its obligations toward
its linguistic minorities:
Neither the federal government, nor the provinces, nor the
leaders of Canadian society have properly fulfilled their
respective responsibilities toward the official language
The commissioner made these remarks at an annual meeting
before a panel of the Fédération des communautés francophones
et acadienne du Canada on the report by Senator Jean-Maurice
Simard entitled "Bridging the Gap: From Oblivion to the Rule
Senator Simard's report, coupled with the remarks by the
Commissioner of Official Languages, Dr. Dyane Adam, are
serious cause for concern. We do not take disturbing remarks
lightly. In my view, we must take action to refocus our efforts on
this important issue.
In an article that appeared on June 18, Montreal's La Presse
Dr. Adam launched into a vitriolic, all-out attack on
Ottawa, which she accused of having failed to meet its
constitutional obligations toward official language
The enlightened leadership that we so sorely need is lacking.
Dr. Adams also said that:
...too concerned with putting its fiscal house in order, the
federal government has neglected its commitment to
linguistic minorities and fallen into "silence and
In order to bring linguistic duality back to the forefront, we
need a new and effective communications strategy. The hour is
late. Dr. Adam said:
Linguistic divides are widening and the official language
minority communities, despite all their efforts, are
constantly losing ground.
That is what we call "assimilation."
As senators, we can take a serious and constructive step. At
the present time, matters relating to official languages are
examined by the Standing Joint Committee on Official
Languages. I must admit that the committee has done excellent
work since its inception in 1979, but there always comes a time
when change becomes necessary, and it is time to modernize the
structures in place and to make some changes to them.
For some time now, the committee has become extremely
partisan because of the presence of people who do not have the
interests of their minority language community at heart, who are
not familiar with its needs.
It is time the committee was divided in two, since the Senate's
mandate is to represent the regions and minorities, and it would
therefore be capable of striking a serious committee with a
progressive agenda, with the support of the government, the
Commissioner of Official Languages and representatives of
linguistic minority committees and associations.
We shall have to redirect our resources and develop modern
federal policies that are adapted to the changes in Canadian
society. The senators on this standing senate committee could
work without partisan bias on the advancement of language
matters. I have already proposed that such a committee be struck,
independent of House of Commons partisan politics. I trust that,
in the fall, we shall be able to roll up our sleeves and meet the
challenge, making language matters again a priority.
In closing, I should like to quote something the Commissioner
of Official Languages said this past Saturday:
In addition, the key players, the federal government and
the communities first of all, must agree on a strategic plan
and a set of tactical measures that include specific
deadlines, performance indicators, and control and
As Senator Simard has said, time is rushing by. We must act
quickly. The vitality of our linguistic communities depends
Hon. Marie-P. Poulin:
Honourable senators, today, June 20,
2000, the Carrefour francophone de Sudbury is celebrating its
fiftieth anniversary. This centre for the young and the
not-so-young offers something for everyone. It brings together
people who want to work, discuss, learn and laugh in French.
As you know, honourable senators, a successful project starts
with a good idea. The idea of founding a youth centre together
with a summer camp on Île-aux-Chênes came from the late
Father Albert Régimbald, a Jesuit. With you, I pay tribute to him
and thank the boards of directors and the many volunteers who
made it possible for the Carrefour to play a key role in the lives
of French-speaking children in Northern Ontario.
Pages Exchange Program with House of
The Hon. the Speaker:
Honourable senators, before
I proceed to the next item on the Orders of the Day, I should like
to introduce to you the pages from the House of Commons. The
fact that the House is not sitting gives us a bonus in that instead
of the usual two pages, we are fortunate to have three pages with
First, I should like to introduce Annick Beauséjour. Annick
comes from Ville-Marie in Quebec. She is enrolled in the Faculty
of Arts at the University of Ottawa. Her specialization is
Philippe Delparte is from Calgary. Philippe is in the
Administration Faculty at the University of Ottawa, and his
specialization is accounting.
Annie Galarneau is studying psychology at the University of
Ottawa's Faculty of Social Sciences. Annie comes from
Cornwall, in Ontario.
On behalf of all senators, I welcome the House of Commons
pages to the Senate. We hope that your week among us will
prove interesting and instructive.
The Estimates, 2000-01
Second Interim Report of National Finance Committee
Presented and Printed
Hon. Lowell Murray:
Honourable senators, I have the honour
to present the eighth report of the Standing Senate Committee on
National Finance concerning the Main Estimates 2000-2001.
(For text of report, see today's Journals of the Senate,
Appendix, p. 750.)
The Hon. the Speaker: Honourable senators, when shall this
report be taken into consideration?
On motion of Senator Murray, report placed on the Orders of
the Day for consideration at the next sitting of the Senate.
Social Affairs, Science and Technology
Notice of Motion to Authorize Committee to Study
Health Care Services Available to Veterans of War and
Leave having been given to revert to Notices of Motion:
Hon. Michael A. Meighen: Honourable senators, I give
notice that on Thursday next, June 22, 2000, I shall move:
That the Standing Senate Committee on Social Affairs,
Science and Technology be authorized to examine and
report on the health care provided to veterans of war and of
peacekeeping missions; the implementation of the
recommendations made in its previous reports on such
matters; and the terms of service, post-discharge benefits
and health care of members of the regular and reserve forces
as well as members of the RCMP and of civilians who have
served in close support of uniformed peacekeepers;
That the Committee report no later than June 30, 2001;
That the Committee be permitted, notwithstanding usual
practices, to deposit its report with the Clerk of the Senate,
if the Senate is not then sitting; and that the report be
deemed to have been tabled in the Chamber.
Nova Scotia—Infestation of Brown Spruce Longhorn
Hon. J. Michael Forrestall:
Honourable senators, my
question is for the Leader of the Government in the Senate. I
have discussed this matter with him. Prior to his response, I
wonder if the minister might include as well any thoughts he has
on a moratorium of the lighthouse matter, but of course more
important is the pressing situation with respect to the brown
spruce longhorn beetle. We understand now that there are
probably as many as seven — hopefully not more — sightings of
this beetle outside or off the peninsula of Halifax.
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, with respect to the lighthouse issue that
Senator Forrestall raised yesterday, I indicated that I would speak
to the ministers directly involved. I have not had an opportunity
to do that yet, but I shall do so and return with a response for the
senator before we break for the summer.
With respect to the question concerning the brown spruce
longhorn beetle, I have a fairly detailed response. As the
honourable senator has indicated, we have had an opportunity to
discuss what is a very serious problem in Halifax. This problem
most directly affected Point Pleasant Park initially, a park that
has long been a favourite spot for all residents of that
metropolitan area and beyond. However, it is also a problem that
has consequences, at least potentially, for an area far broader.
Honourable senators, I should like to take a couple of
moments to discuss this matter. I also intend to provide a written
report to Senator Forrestall, Senator Oliver and to any other
senators who might be interested.
In giving an update, I can inform honourable senators that the
federal, provincial and municipal governments have established a
task force. The three levels of government are working closely
with the task force to share information, discuss the significance
of the brown spruce longhorn beetle, pest management options
and communications to the public. Members of the task force
include the Canadian Food Inspection Agency, Natural
Resources Canada, the Canadian Forest Service, the Nova Scotia
Department of Natural Resources, the Halifax Regional
Municipality, the Point Pleasant Park Advisory Committee, the
Maritime Lumber Bureau, the New Brunswick Department of
Natural Resources and Energy, and Dalhousie University. The
first meeting of the task force was held on Monday, June 5, 2000,
in Halifax. Subcommittees of that task force are currently
following up on a five-point action plan, which includes
conducting an inventory of the affected trees, determining
options for local containment and eradication, discussing options
for ecological restoration of Point Pleasant Park, and establishing
a communications network.
The subcommittees reported back to the task force at its
second meeting on Monday, June 12, 2000, in Halifax. A third
meeting of the task force took place on June 19, 2000, to discuss
the costs of eradication and the concerns of citizens opposed to
the removal of infested trees. As the Honourable Senator
Forrestall will know, certain members of the community have
raised questions about the most appropriate method of dealing
with the potential threat. The next task force meeting is
scheduled for June 27, 2000.
As the honourable senator noted, this beetle has been detected
at a total of seven locations outside of the Point Pleasant Park
geographical area. I believe the most distant location was in the
area of the Armdale Rotary, about which the honourable senator
would be familiar. This area is approximately three kilometres
away from the park site.
On an immediate basis, the Canadian Food Inspection Agency
and NRCan have approved an interim measure to track the
movement of the beetle within the park and surrounding areas,
and, combined with that, announced the establishment of a bait
log program. Starting Monday, June 19, log piles consisting of
100 logs each will be strategically placed through the park in an
effort to attract egg-laying female beetles. There will also be five
experimental log piles to test the effectiveness of the initiative
and new methods of containment and eradication. The hope is to
keep the beetles in the park and away from the healthy trees.
This is an interim measure until a task force can make a final
decision about the next step in ongoing eradication efforts. The
decision has not been made because a number of important
details are still under discussion. These include the volume of
trees to be cut down, whether or not trees that have not been
infested will be cut down as a precautionary measure, concerns
about public safety if trees are cut during the peak tourist season,
concerns about cutting down trees while the beetles may not be
dormant, and so on.
Honourable senators, this issue can have a major impact in the
forestry sector all across the country. This is the first infestation
in North America of this particular pest. As such, it is not a small
matter and it must be dealt with carefully.
Honourable senators, I have asked the parties involved on the
federal side, who are among the leaders of this initiative,
including the Canadian Food Inspection Agency, if they would
arrange a public information format to allow the public to present
their views and to be informed in detail of what the federal
departments are considering. I am informed that such a format
will be set up in the very near future.
Honourable senators, I have communicated the honourable
senator's ongoing concerns, and we hope, of course, that this pest
can be contained without undue damage.
Senator Forrestall: Has the minister any knowledge with
respect to what form that federal assistance will take? Will funds
be available? What resources will the federal government make
I should also like to thank the minister for his report.
Senator Boudreau: Obviously, the lead federal agencies,
namely the Canadian Food Inspection Agency and Natural
Resources Canada, do not have it within their normal resources
to deal with what is quite an unusual situation. In fact, whatever
resources are required will be brought to bear. I do not think
there is any question that those agencies will be seeking
additional funding from the central agency to enable them to
conduct and fulfil their responsibilities.
Lease Dispute Between Port of Halifax and Halterm
Limited—Request for Update
Hon. J. Michael Forrestall:
Honourable senators, I have one
final matter concerning an area on the edge of the same park.
Last week, the minister gave this house the assurance that he
would facilitate, to the best of his ability, a settlement between
Halterm and the Halifax Port Authority with respect to the
reference of a matter to the federal government and the federal
cabinet's rejection of that motion. What has the minister from
Nova Scotia been able to do about this issue? Can we anticipate
it not being a lengthy, dragged out matter?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, I believe the honourable senator raised a
suggestion in our last discussion about this subject. He suggested
that perhaps the parties might involve themselves in an
arbitration process to try to resolve the matter. My response to
him at that time was that I took his suggestion seriously and
would pass it along to the minister responsible. I undertook to do
that and did so.
Since we had that discussion, I understand that another court
action has commenced that, perhaps, arose out of the decision. In
any event, it is now being proceeded with. I am somewhat
reluctant to comment in any great detail except to say that I share
the honourable senator's view that the sooner this matter is
resolved and the port can move on to other issues, the better off
everyone will be.
Senator Forrestall: Honourable senators, do I take correctly
from what the minister has said that his colleagues in cabinet,
principally Minister Collenette, have now said no to any plea that
the minister might have put forward? He sounded negative about
it. This serious matter will affect 7,000 direct jobs. Good Lord,
we do not want that port shut down.
Is the minister not nearly as hopeful as he sounded last week
about a further intervention, with the end being that the matter
would come before an arbitration tribunal or institution such as
the Canadian Transportation Agency for resolution? The increase
is just phenomenal.
Senator Boudreau: Honourable senators, the suggestion
I relayed from the honourable senator to Minister Collenette, and
I may have misunderstood precisely what the honourable senator
was suggesting, was that if the parties were able to enter into an
arbitration process that could resolve the matter, then the
honourable senator was recommending that such a thing occur.
To date, I cannot report anything positive on that point.
With respect to the Canadian Transportation Agency, the
government has made its position quite clear, which is that the
government believes and has indicated that the agency does not
have jurisdiction in this area.
With respect to the parties coming to some understanding that
they would embark on some other process of arbitration, it was a
suggestion that I have relayed to the minister.
Nova Scotia—Infestation of Brown Spruce Longhorn
Hon. Fernand Robichaud:
Honourable senators, my question
is supplementary to Senator Forrestall's. We are told that this
insect arrived on some mode of transport. We also know that
there is a considerable lumber trade between Nova Scotia,
New Brunswick and other Atlantic regions. What measures has
the government taken to ensure that this insect does not use some
mode of transport to move beyond the region in which it has
presently been sighted? It would be disastrous for
New Brunswick if this were to happen.
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, the Honourable Senator Robichaud is
absolutely right, which is why the issue is not a local issue for
Halifax. In reality, it is an issue for the country, but for Atlantic
Canada first. The initial approach is to determine with as much
accuracy as possible to what extent those beetles have spread
currently. A thorough assessment is being done.
A course of action to eradicate the beetle on the site at Point
Pleasant Park, insofar as it is possible, will be presented by the
task force I have described. To date, it has been suggested,
although I do not think anything has been finalized, that the
course of action will probably involve massive cutting and
disposing of the trees once they have been cut. A number of
issues have developed, such as exactly how much cutting must
be done, where it must be done, what is the best method of
disposing of the trees, since the beetle will remain, what time of
year is best to do this work, and whether it is necessary to wait
until the beetle is dormant before the trees are cut down.
Honourable senators, there is no question that dramatic action
must be taken. The government is committed to doing that and
will be following a deliberate process to determine how that
should be done.
Auto Pact—Influence of World Trade Organization
Hon. Roch Bolduc:
Honourable senators, my question is for
the Leader of the Government in the Senate. Canada's appeal to
the World Trade Organization concerning the Auto Pact was
dismissed, which constitutes a victory for the European and
Japanese manufacturers and, of course, a severe blow to the
North American manufacturers.
Does the government have statistics on the potential job losses
in this country as a result of this ruling, and how does it intend to
counteract this economic shock?
Hon. J. Bernard Boudreau (Leader of the Government):
Honourable senators, specifically with respect to the WTO and
its impact on the Auto Pact, the Government of Canada has
continued to monitor the situation. In the view of the minister,
I think I can say that the impact will be manageable.
As to the details of any plans the minister has with respect to
ameliorating the impact on the industry or the workers involved,
I would have to seek that information from the minister directly
and pass it along to the honourable senator.
Senator Bolduc: Honourable senators, a sudden 6 per cent
increase is a big shock. It is not like 1 per cent or 1.5 per cent
per year over 10 years, something which is manageable. Six per
cent is a great deal in terms of construction costs. I hope that a
solution can be found, otherwise some people in Oshawa,
Oakville or Windsor will lose their jobs.
Senator Boudreau: Honourable senators, I am somewhat
reluctant to provide a more detailed reaction at this point, as I
should like to be more certain of the minister's views. I am aware
that the minister and the government have monitored that
situation and believe it can be managed.
Bill to Give Effect to the Requirement for
as Set Out in the Opinion of the
Supreme Court of Canada in the Quebec
Third Reading—Point of Order—Speaker's Ruling
Hon. Dan Hays (Deputy Leader of the Government)
the third 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.
The Hon. the Speaker: Is it your pleasure, honourable
senators, to adopt the motion?
Hon. Serge Joyal: Honourable senators, I rise on a point of
order in relation to the debate on Bill C-20.
At this point in our debate on Bill C-20, there is an element
which is, in my mind, very important, and one that I had the
opportunity to raise in the speech I made in relation to the
In the speech I made on May 10, 2000, I argued that the
Government of Canada has no prerogative to break the seal
between the Canadian citizens and the Crown. I repeated that
later on in my speech. I stated:
It is wrong, in my opinion, to maintain that the executive
government has a prerogative or capacity to negotiate the
dismantling of the sovereign will of Canadians to live under
the rule of law and to enjoy the protection of their rights and
freedoms under the Constitution throughout the whole of the
I made it very clear at the opening of my speech that I did not
believe that Bill C-20 was rightly based on a prerogative. The
government's spokesperson, the Honourable Senator Boudreau,
in his opening speech on March 23, took a different view. In fact,
at the opening of his speech, he mentioned that the executive or
cabinet has the prerogative on whether to enter into negotiations
concerning constitutional amendments. He continued by stating:
In the legislation's absence, there would be no limitation
on the government's prerogative.
He also stated that, in the absence of Bill C-20, the federal
government would have an unfettered prerogative. He continued
In adopting the clarity bill, however, the Senate would be
placing a serious constraint on the government's
He repeated that point on many occasions in his speech.
When the Minister of Intergovernmental Affairs and President
of the Privy Council testified on Bill C-20 on May 29, before the
special legislative committee that was charged by this house to
debate Bill C-20, Minister Dion stated:
The capacity of the government to enter into negotiation,
including secession, has been confirmed by the Supreme
Court reference in its ruling. The court has said that in our
system it is elected representatives that initiate
In a discussion with Senator Cools, Mr. Dion answered:
...prerogative is plenary and can be limited only by
In pursuing that debate, Minister Dion continued to maintain
that it is a Crown prerogative by stating:
That prerogative is exercised by the government and
limited only by legislation.
Honourable senators, let us look into the rules of practice of
this house as well as those which apply in the other House.
Marleau and Montpetit, at page 643, state:
Royal Consent...is taken from British practice and is part
of the unwritten rules and customs of the House of
Commons of Canada. Any legislation that affects the
prerogatives, hereditary revenues, property or interests of
the Crown requires Royal Consent, that is, the consent of
the Governor General in his or her capacity as
representative of the Sovereign.
That is what Beauchesne also states in paragraph 726 at
The consent of the Sovereign...is given by a Minister to
bills...affecting the prerogative, hereditary revenues,
personal property or interest of the Crown.
I would also refer, of course, to Erskine May. On the same
issue, at page 603 of the 1997 edition, we see the following
Bills affecting the prerogative, hereditary revenues,
personal property or interests of the Crown...require the
signification of Queen's consent in both Houses before they
This is in Great Britain, of course. Erskine May applies to the
traditions and rules in the Mother of Parliaments.
I have carefully examined the course of Bill C-20, honourable
senators, and I find that neither in this house, nor in the other
House, in fact, nowhere, does it appear that Royal Consent
accompanied the bill, and since the sponsor of the bill supports
and contends that this bill is a limitation on the prerogative,
I should like to draw your attention to the fact that no Royal
Consent accompanies Bill C-20. Therefore, I would humbly
request a decision from His Honour in that regard.
It is not my wish to prevent debate on third reading. I know
that some other honourable senators want to participate in the
debate on third reading, and they have expressed that desire.
Perhaps the debate could continue as scheduled, pending
His Honour's ruling.
Senator Hays: Honourable senators, since I am hearing of this
for the first time, I have had no opportunity to prepare any
As I understand Senator Joyal's concern, it is over a difference
of opinion between whether or not the Royal Consent is a
condition precedent to this bill being debated and dealt with in
the other place or here. His position seems to be that, in the
absence of Royal Consent, the matter is out of order and is not
something with which we should be dealing.
I shall look at Marleau, Beauchesne and Erskine May, as I am
sure His Honour will. I hope he will find, as I shall, either at the
references given by Senator Joyal or elsewhere, that, where there
is a dispute as to whether the matter is out of order and not
properly before this place or the other place, and where there is a
legal argument that would be determined by a court, it is the
practice of this place to not have rules on those kinds of issues,
but that they are determined after legislation is passed. They may
be ultra vires or intra vires the Parliament of Canada, one or both
Houses, although I believe Senator Joyal's point applies to both
Houses. If it is ultra vires, then what the House of Commons has
done is not properly before the Senate.
That issue was not raised in the other place. It is raised here. I
suggest the reason it was not raised in the House of Commons is
because it is that kind of issue that is not determined by a ruling
of the Speaker. It may be determined by the members of this
place or the other place in a vote, but it is not a proper matter on
which to delay, awaiting a condition precedent being fulfilled,
that is, getting Royal Consent. That is something that will be
determined after the bill is passed, and not something which
should delay our determination of whether or not we wish to pass
the bill, amend the bill, or do what we are entitled to do under
our rules with the bill.
Hon. Joan Fraser: His Honour will, of course, consider the
parliamentary authorities in coming to his ruling. I thought it
might be modestly helpful for the chamber, and His Honour, to
know that, in the committee study of this bill, the question of the
prerogative, although not in precisely this form, was raised and
was discussed by several witnesses. The committee heard from,
if memory serves, six professors of constitutional law and a
former justice of the Supreme Court of Canada, as well as four
political scientists, one of whom is considered to be among the
ranking authorities on the role of the Crown in Canada and
associated matters. None of them raised this point or anything
remotely approaching this point as an objection to the bill.
Hon. Anne C. Cools: Honourable senators, because I was out
of the chamber I was not fortunate enough to hear Senator
Joyal's intervention. I should like to speak to this issue, so I
wonder if Senator Joyal could, for the sake of those of us who
were not here in the chamber, give us an idea of the thrust of
what he is saying. I think what he is raising is very important.
Hon. John Lynch-Staunton (Leader of the Opposition):
How do you know? You did not hear it!
The Hon. the Speaker: Honourable senators, that would not
be a normal process of debate. Unless I am so instructed by the
chamber, I do not think that I can ask Senator Joyal to repeat
what he has already said.
Senator Cools: I was not asking you, Your Honour. I was
asking if Senator Joyal could do so. I think this is an important
question. I was not here; I am very sorry, but I cannot be in every
place at the same time. It is just a question of common courtesy.
If no one wants to do so, I can speak without that too, you know.
Senator Hays: Honourable senators, I can appreciate Senator
Cools' concern and problem, but I should like to draw attention
to Senator Cools' and to other honourable senators the precedent
of requesting a repeat of something that has already been debated
in terms of the point of order. I am sure that we would appreciate
very much Senator Cools' contribution to this matter. She has
raised the question of Royal Prerogative, and perhaps she could
give us the benefit of her views on this point of order, but
I would suggest to Senator Cools, to other honourable senators
and to you, Your Honour, that to recap or summarize debate of
one or two or three senators is a precedent that we should not
follow or set.
Hon. Jerahmiel S. Grafstein: Honourable senators, I heard
the Deputy Leader of the Government respond to Senator Joyal's
motion. I have also heard the chairman of the committee. As I
recall, it was Senator Cools who first raised this question at great
length, both in this chamber and in the committee. Perhaps when
the leader is doing his research, to enlighten the house, he could
bring together those precedents that would support his suggestion
that this is a legal as opposed to an important constitutional
matter that goes to the heart of both this house and the other
chamber. I think he has drawn a distinction between a procedural
matter and the Constitution of this particular place and how it
should proceed with its business as opposed to what happens if
Your Honour or others or the House disagrees and it goes to court
for further discussion.
It is my understanding of the procedures — and I hope I am
not in error — that, first and foremost, an issue of this kind is for
this chamber to consider. It is for you, Your Honour, regretfully,
to deal with this issue — and, one hopes, as quickly as possible.
We all understand the urgency of this bill. No one is seeking to
hold up the bill. However, it is important, if this question is
asked, that Your Honour look at the appropriate authorities and
give us your view from a parliamentary practice aspect as
opposed to a legal practice aspect. The two Houses are still the
supreme arbiter of constitutional matters. I think it is first and
foremost the responsibility of this place to deal with this matter
as opposed to forcing it off on the courts.
Honourable senators, if the Deputy Leader of the Government
either feels or can find that there is support for that contention,
then we should have those precedents at our fingertips so that we
can deal with them. I, for one, find it interesting because I think
all of us — that is, Senator Beaudoin, Senator Joyal, Senator
Cools, and others — were searching for the power of the
government to proceed with this bill in the way that it has. We
were given three answers. As I recall the evidence, one answer
was that it was the plenary, undisputed Royal Prerogative of the
Crown vested in the cabinet; the second was that it was the
prerogative as exercised through one section of Constitution,
namely, section 44; and the third answer was the exercise of the
prerogative through the peace, order and good government. All
interesting and vital questions that were raised were dealt with,
but a conclusion was not reached because it was not raised in
specifically this matter as a pre-condition to this very important
I have always contended, honourable senators, that when we
deal with a matter dealing with the rule of law we, ourselves,
should follow the rule of law.
Hon. Jean-Robert Gauthier: Honourable senators, I should
like to have a clarification for a Canadian who is neither a lawyer
nor a constitutional expert. As you will recall, I raised this point
on second reading, and asked for clarification of the last
paragraph of the preamble to Bill C-20, which reads as follows:
Now, Therefore, Her Majesty, by and with the advice and
consent of the Senate and House of Commons of Canada,
enacts as follows:
This paragraph is followed by the three clauses of the bill.
Honourable senators, could you explain to me whether, in a
bicameral system such as ours, a bill is necessary —and I believe
it is necessary and essential — or whether it would be preferable
to wait until after such a bill is passed or rejected? Who would be
called upon to make such a decision?
Senator Hays: Honourable senators, I did not comment on
Senator Joyal's suggestion that we proceed with third reading
debate while His Honour considers — that is, assuming there is
no ruling from the Chair — his position regarding Senator
Joyal's request for a ruling as to whether it is in order for us, as I
understand his point of order, to consider this bill at all. I have no
objection to that. I am quite happy to see us proceed while His
Honour considers the point of order that has been raised,
although I think that would be highly irregular. I am not sure that
I have ever heard of that having happened before. Given my
limited experience in these matters, however, that does not mean
I listened carefully to Senator Grafstein, and I thought he made
the point that I was trying to make very well, only he has a
different view of it. He said that this is a legal matter, as opposed
to a constitutional matter, and he referred to three answers. Once
again, I wish to point out that, once that is said, it takes this
matter outside of His Honour's power to rule and puts it right on
the floor of this chamber. We can defeat it if we are concerned
about it or we can amend it to correct an error, but I do not
believe it is for His Honour to prevent us from dealing with this
legislation. If we are wrong and this goes to the courts, then that
will be the proper way for us to be proven wrong and not from a
ruling from the Chair.
Senator Lynch-Staunton: Honourable senators, I think we
are getting bogged down in vocabulary here. This is a procedural
matter. I maintain that it is like a money bill coming here without
a Royal Recommendation. Someone says, "Where's the Royal
Recommendation?" Senator Joyal is saying, "Has this met the
test of Royal Consent?" Is it needed? This is a procedural matter,
not a constitutional one. This is not requesting whether the bill is
ultra vires or not. That is for another body to decide. It is for
Parliament to decide whether it is proceeding within its rules and
the authorities that guide those rules and support them.
Senator Cools: Honourable senators, I want to apologize for
not hearing Senator Joyal's intervention. I had appealed to the
magnanimity and charity of senators to find out what the issue
was before us, because, as honourable senators know, I have
raised this particular issue again and again. I think honourable
senators should be very mindful that points of order can be
raised suddenly, without notice, and it is very difficult for other
senators to know that a particular senator is planning to raise a
point of order.
Perhaps at some point in time we might wish to revisit our
practices in respect of giving senators full opportunity to be able
to respond to some of the issues as they are raised because the
subject matter that Senator Joyal has raised is extremely
important, central and pivotal to the question of Bill C-20.
Honourable senators, it was once said that there is no area of
law more neglected and needing of study than the law of the
prerogative and its sister, the law of Parliament.
The disadvantage under which one labours when one raises
these questions is that many individuals pull down a shelter,
shield or cloud of it being arcane, cryptic or unknown when, in
point of fact, the Royal Prerogative is the cornerstone of an
enormous amount of the practices of government. All
government has its source or origin in the prerogative.
We must be mindful that the prerogative has its origins in
pre-history, almost. The prerogative is all of that law that we
usually refer to as the inherent powers of government but the law
that equips government to govern. It is called the
lex praerogativa, the law of the prerogative. It has a name and it
has been studied. Whether it is the Royal Prerogative in respect
of making of coins, parens patriae, justice, mercy and clemency,
the sovereign's appointment of ministers, the dissolution of
Parliament or the proroguing of Parliament, it is a vast area of
law, and it has suited this government's purpose to obfuscate
some of the issues in respect of the Royal Prerogative.
Honourable senators, I am one of those who has asserted quite
strongly that, when the Leader of the Government, the minister,
the officials of the Privy Council have told us again and again
that government has an unfettered right under the prerogative to
negotiate any kind of agreement that it wants for any purposes
whatsoever, there is no such prerogative.
Before I go to the question of Royal Consent, I should like to
raise an important principle of responsible government. I would
ask senators to be mindful of the lex parliamenti, the law of
Parliament, which is another area of law in this country that is
grossly neglected and begging study and attention. The principle
I raise is as follows: That the sovereign ought not to be deceived
about the character of the measure or the bill to which the
sovereign is being asked to assent.
Honourable senators, the enabling clause of a bill always reads
in the same fashion:
Her Majesty, by and with the advice and consent of the
Senate and the House of Commons of Canada, enacts as
Then the provisions of the bill begins.
It seems to me, honourable senators, that this is a bill in
respect of the Royal Prerogative; therefore, Her Majesty's assent
is needed in advance, as well. The Royal Assent in advance is
frequently known as the Royal Consent. I am assuming that
someone has already put the passages from Beauchesne's on the
record about the Royal Consent.
In any event, what is crystal clear is that the government has
told the chamber that it is relying on the Royal Prerogative, in
essence, to alienate the Senate from the consideration of
important questions of public policy.
In previous speeches, I have referred to one of the greatest
jurists Canada has ever known, a Liberal named Edward Blake.
He spoke of the mighty power of Parliament to advise.
I submit to honourable senators that any attempt by the
government in the name of the Royal Prerogative to be able to
circumvent, limit, frustrate or amend the powers of the Senate to
exercise its power to advise the sovereign is a matter that deeply
concerns the Royal Prerogative. Bill C-20 attempts to undermine
the bicameral system. In addition to undermining the system of
bicameralism, it also attempts to undermine the system of
Parliament. The Queen is at the head of our Parliament. The
executive function is one that is also supposed to live in harmony
with the legislative function.
Having said that, honourable senators, I should like to say that
Beauchesne's 6th edition, paragraph 727, states:
(1) The consent of the Crown is always necessary in
matters involving the prerogatives of the Crown. This
consent may be given at any stage of a bill before final
The authorities show that such Royal Consent in the case of
private members' bills is fundamentally different from the
instance of government bills. In the instance of government bills,
like Bill C-20, the minister should announce the Royal Consent
at the outset of the debate, as in the instance of the Royal
Recommendation in respect to financial bills and money bills
originating in the House of Commons.
On the question of a bill that asks for Her Majesty's agreement
and assent to limit the great power of the Senate to advise, I
should like to put on the record a statement from the Supreme
Court of Canada opinion in the 1980 patriation Reference Re
Amendment to the Constitution of Canada. At that time, the court
was asked to rule in respect of the Senate of Canada and the
House of Commons passing addresses and resolutions.
At page 29 of that judgment, section 8 reads as follows:
Turning now to the authority or power of the two federal
Houses to proceed by resolution to forward the address and
appended draft statutes to Her Majesty the Queen for
enactment by the Parliament of the United Kingdom. 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, as enacted by 1875 (U.K.), c. 38, 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.
In other words, honourable senators, the empowering provision
of the BNA Act that enables the Senate to give advice by its
resolutions and orders and addresses to Her Majesty is
section 18. There is no power in any simple bill or in any other
part of the BNA Act or the current 1982 act to limit that. I would
submit to honourable senators that the same rests with Bill C-20.
Honourable senators, there has been much talk about the Royal
Prerogative, but the funny thing is that no one will tell us upon
what Royal Prerogative the government has been relying in
respect of this entitlement to negotiate anything that it wishes.
Senator Fraser has just said, a few minutes ago, that that question
has been canvassed in committee. Honourable senators, I should
like to counter that because the question has never been
answered. No one will tell us what that prerogative is. As a
matter of fact, the question was dodged. In some instances, the
question was not even understood by many witnesses coming
before the committee.
I submit to honourable senators that it is unspeakable by the
law of Parliament to receive bills that so undermine the
bicameral nature of Parliament itself. I am very well aware that,
in this chamber and in this Parliament, members have been
reluctant to defend the institution itself and the practices of this
place from constant encroachment by members of government.
We have in Bill C-20 an opposite approach, whereby, in point of
fact, members of the Senate have been enjoined and enlisted in
undermining the Senate.
Regarding section 18 of the BNA Act, the court's 1981
advisory opinion holds that there is no limit in any part of the
Constitution. I would also submit that, by section 18, this Senate
and our Speaker also has a duty to concur with the concerns of
Honourable senators, if one were to review the development of
section 18, which grants to the Senate the power to advise Her
Majesty the Queen, you would find that that question was hard
fought for a century in Canada. It was a very difficult fight. The
question bothered the colonial office in England. Those offices
were reluctant to grant to any legislative assembly in Canada the
full plenary powers of a Parliament. The powers of Parliament,
as were finally given in section 18 and as encouraged by Sir John
A. Macdonald, gave full plenary judicial powers to safeguard the
institutions of the Royal Prerogative and to safeguard the
institution of Parliament.
I would go further than Senator Joyal. I would say that the
powers of this institution as given were enormous in order to
protect against such encroachment. The Constitution Act, the
BNA Act, far from being silent on the question of the breakup of
Canada spoke loudly against such questions as acts of treason. If
we know anything about the Royal Prerogative, we know that the
king cannot countenance any dishonour to the king himself. The
Royal Prerogative has some characteristics, the first of which is
sovereignty, the second of which is perfection, and the third of
which is perpetuity.
The first duty of the king's advisors toward the citizens, the
subjects of the king, is to preserve the stability and the nation as
it exists. In other words, they must preserve the territorial
integrity of the nation as a whole. That is why the expression
exists, "The king is dead. Long live the king." The king
I would submit, honourable senators, that the Law of
Parliament, as it has existed and developed alongside the second,
older form of law, absolutely forbids the contemplation of any
potential deception or misleading of the sovereign. Furthermore,
the Law of Parliament prescribes some severe and harsh
penalties for ministers who would so violate the Law of
Honourable senators, this morning I was chatting with another
Senate colleague about Louis Riel, who, as you know, was
hanged for treason, and not that long ago. That was only in 1885.
Her Majesty the Queen has imposed upon us by our oath of
allegiance — which we all must take when we come to this place
— a duty of allegiance. The first duty of allegiance is the
preservation of the nation and the preservation of the
Constitution as we have found it, not as we should like it to be,
not as some want it to be, but for the current state of things, so
that the subjects and citizens of this land may continue their
business on a day-to-day basis without fear of disruption and so
that the country can remain as an intact, integral unit
Many have said that the Constitution Act began with a
preamble that articulated the provinces' expressed desire to
federally unite. The federal union is one dominion. Honourable
senators, this has been a much debated subject. I maintained
then, and I maintain now, that that union is indivisible. Any
simple bill that purports to alter that union is at once contrary to
the Royal Prerogative and, at the same time, contrary to the law
Honourable senators, Bill C-20, even before it was introduced,
should have met with a consultation with Her Majesty or
Her Majesty's representative in Canada.
I urge honourable senators one more time. Do not believe for a
moment that this subject matter is cryptic or beyond your reach
or arcane. We are dealing here with the nuts and bolts of how
governments run and how governments maintain themselves in
power. Honourable senators, the first duty of the Parliament of
Canada and the first duty of the Government of Canada is the
maintenance and the sustenance of Canada as a whole as a
nation, governed as it is by a bicameral system, being the Senate
and House of Commons, backed up by the head of Parliament, a
full constituent part of the Parliament, called the Queen.
I plead with His Honour to look at this matter. I tend to agree
with Senator Hays in this particular instance that these matters
should be rightly decided by senators because, in the long run, I
sincerely believe that the Speaker of the Senate has no role in
these sorts of decisions. I would also submit that my opinion on
this matter has been ignored frequently. The Speaker is called
upon again and again to make rulings, rulings that I think should
really be resolved by debate among senators.
On the Speaker of the Senate and his role in the question of the
Royal Prerogative, I remind us that, in the Senate, the Speaker of
the Senate is the king's man and/or the Queen's man or the
Crown's man. There is a reason for that. Senators were supposed
to be elevated and be higher in precedence and so on than
members of the House of Commons.
I should also just like to essentially situate this entire argument
in its historical perspective and to say again that these are matters
that the chamber should really be deciding. I know that I shall
receive some support for that proposal from Senator Molgat
because I remember from the GST debate, and many other
debates, that one of the strongest proponents for electing the
Senate Speaker was Senator Gildas Molgat, so I know he will
lend some credence to what I am saying.
In any event, the fact of the matter is that this action should
not be viewed as any delaying tactic by Senator Joyal. In all
frankness, I believe that Senator Joyal has done a splendid job on
the floor of the Senate on this particular question.
I really do believe that senators should take their role in a very
serious way and come to terms with the fact that this is all part of
the high court of Parliament, and that its judgments, especially of
a judicial nature, are of the highest order. The very fact that
Bill C-20 has come to us named as it is, an act to put into effect
an advisory opinion of the court, also undermines the Royal
Prerogative and the Law of Parliament. If we know anything
about the Law of Parliament, it is that the Law of Parliament will
permit no encroachment from any other court of the land.
In any event, I thank Senator Joyal. My apologies that I did not
hear his presentation.
I would also commend to senators that they study those
provisions of the Constitution Act, the BNA Act itself, which
speak to the treatment for treason and the harsh measures that the
law of Parliament meted out for any attempts to disturb
Honourable senators, this matter of secession has come up
again and again, and in Canada now it is race based. You should
know that much of this touches me in a personal way because I
belong to that group of people about whom a civil war was
fought in the United States of America.
As a child growing up in the Caribbean, much of which has
maintained its strong British links, the British system of
Parliament was always upheld to me as the ultimate or
penultimate solution politically for all social problems, for all
That is what I am asking His Honour to uphold — the Law of
Parliament in respect of its enormous esteem for the Royal
Prerogative. The first duty of this Parliament, of our Speakers'
and of our members and senators is to remain loyal to our oath of
allegiance. It is our own loyalty that we owe to the Queen and to
this country that Senator Joyal is asking us to uphold.
Hon. Sharon Carstairs: Honourable senators, I think it is
important in our study of the point of order raised by the
Honourable Senator Joyal to recall a number of developments
outlined in Beauchesne. To begin with, paragraph 317 indicates:
Points of order are questions raised...calling attention to
any departure from the Standing Orders or the customary
modes of proceeding in debate or in the conduct of
legislative business and may be raised at virtually any
Clearly, Senator Joyal has done that in his question of whether
Royal Consent or Royal Prerogative have been appropriate in
that it has not been given for this particular piece of legislation.
Then I think we should turn to Royal Consent itself, which is
very clear. Paragraph 725 states:
The consent of the Sovereign...is given by a Minister to
bills...affecting the prerogative, hereditary revenues,
personal property, or interest of the Crown.
Paragraph 729 states:
The Royal Consent to a bill is not required unless it
affects the personal property of the Sovereign...
I find it difficult to think that we are dealing with an issue of
the personal property of the sovereign in this particular instance.
Finally, honourable senators, I think it is important to return to
what is, in fact, a point of order. Paragraph 322 states the
When a bill is under consideration, points of order should
not be raised on matters which could be disposed of by
moving amendments. The same may be said about
Instructions which can only be moved if they are within the
scope of the bill. It is more advantageous to proceed by
amendment on the third reading when, if the House divides,
every Member's attitude is clearly shown. Points of order
are justified when there is some flagrant misuse of the rules,
but they are unfortunate necessities which should not be
regarded as usual phases of procedure and ought not to
develop into long arguments with the Speaker who, being in
a quasi-judicial position, should not be drawn into
Clearly, there is some controversy in this bill presently before
this chamber. I personally think it would be better dealt with by
discussion among the senators.
Hon. Nicholas W. Taylor: Honourable senators, I do not
know if there is cross-pollination or a contagion with sharing
seats with Senator Cools. I do not agree with her entirely, but she
has a point. I might find my seat is removed tomorrow, but
nevertheless, to the Deputy House Leader, I notice both Senator
Carstairs and Senator Cools missed part of Beauchesne
paragraph 727. When we read it all the way through, it says:
This consent may be given by a special message or by a
verbal statement....It will also be seen that a bill may be
permitted to proceed to the very last stage without receiving
the consent of the Crown but if it is not given at the last
stage, the Speaker will refuse to put the question.
Obviously, I think that would imply that debate could continue
in stages, so you have some time, Your Honour, to form your
opinion. The debate could continue.
As far as the Royal Prerogative is concerned, I have always
felt that there are two types. Royal Assent is needed if you are
intending to take away royalty's property, and that is covered
quite adequately in Beauchesne, paragraph 729, as Senator
Carstairs mentioned. The other Royal Prerogative is property
held for the people of Canada in the right of Crown. You always
hear, "You can sue the Crown," you can sue this and that.
Separation is where it gets a little bit hairy. If you separate and
are not recognizing the Queen, of course you are changing the
Queen's property. If you have sovereignty and you still recognize
the Queen, you have not affected Royal Prerogative. I do not
want to get into detail, but the Royal Prerogative comes up on a
question of property.
The question is, Your Honour, quite clear from Beauchesne.
The debate can continue because Royal Prerogative can be
inserted into the process at any stage before the vote.
Senator Cools: Honourable senators, I should like to add to
what Senator Carstairs had to say, because if anything, this
debate is showing that there is a need for a thorough study of the
law of the prerogative. I believe that Senator Carstairs was
referring to the question of personal property of the Sovereign.
That is one small, microscopic part of the prerogative, and it is
not particularly relevant in this particular issue here.
When Senator Carstairs raised her points, I was not clear as to
what personal property of Her Majesty in Canada, in addition to
Crown-held lands, she was noting. I do not think that we have
too many difficulties in Canada with the personal property of Her
Majesty. However, we do have a lot of difficulty in Canada with
the law respecting Her Majesty's exercise of her powers in
respect of Parliament.
I wanted to note very clearly that the concept of the personal
property of the sovereign is a microscopic part of the Royal
Prerogative and not relevant here. The relevant
Royal Prerogative is the prerogative of maintaining the Queen's
peace and the prerogatives of making war. In addition, there is
the prerogative of determining who should be the enemies of Her
Majesty and at what point these enemies become traitors. It has
always been held in the British common-law tradition that there
are moments in time, for example, when two different opinions
can gather enough strength to be viewed as enemies rather than
However, no matter how one looks at this question, the fact of
the matter is that the Queen is present in this chamber.
The Queen is always present in Parliament, and the Queen is
present in this bill.
Honourable senators, the question that must be answered is
whether the interests in this bill are consistent with the Queen's
interests in respect of Canada. That is the fundamental question
that the government has declined to answer. The government has
not assured us that this bill is consistent with the oath of
allegiance, which we are all required to take in accordance with
the BNA Act.
Interestingly enough, I put that very question to Minister Dion
yesterday. I asked him what duty of allegiance to Her Majesty the
Queen and to the one Dominion of Canada he held in respect to
Bill C-20. I would admit to honourable senators here that his
answer was less than satisfactory.
The Hon. the Speaker: I want to thank honourable senators
who have participated in the debate on the point of order.
I believe that I have heard now sufficient discussion. With the
agreement of the Senate, I would take this point of order under
The suggestion has been made that the debate might continue.
If that is the agreement of the Senate, I would be prepared to call
the next speaker on my list.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
Hon. Richard H. Kroft: Honourable senators, I rise to speak
today to Bill C-20. It is the first time that I have spoken to the
bill in this chamber. While intensely interested, I have chosen to
listen to others who have been here much longer than I and
whose personal experience in matters relating to this bill is much
greater. I have been amply rewarded.
Senators, both on second reading debate and in the special
committee on which I had the privilege to serve, have been
outstanding. We have been exposed to able and knowledgeable
witnesses. No one will ever be able to say that this bill, with all
the fundamental issues it touches, has not been dealt with
superbly. Anyone who claims to understand or judge the Senate
should first read the debates and committee proceedings on
There are many issues raised by this bill. I wish to address the
three that have most preoccupied me — the scope and purpose of
the bill, the matter of Canada's divisibility, and the Senate's role
as contemplated by Bill C-20.
First, I shall speak to the scope of the bill. While it is
unquestionably true that Bill C-20 is an important bill, we should
not read more into it than is there; nor should we attempt to hang
things on it or expect more from it than is reasonable or correct
Bill C-20 is designed to be only a step in what would be a long
and difficult process. It is a direct response to the Supreme
Court's decision on the Reference re Secession of Quebec, 1998.
Its only purpose is to establish a process to determine the clarity
of a referendum question and the clarity of the expression of the
will of a province in a referendum vote that the court required. It
is not to set the rules for a secession negotiation. It is not to
establish criteria for determining the views of Canadians other
than in the province in question. It is not to protect minorities or
special interest groups, and it is not to determine who is
represented in discussions or by whom. The provisions of our
Constitution, other legislation and the political judgment of
governments and legislatures of the time will determine those
things, and many more. All that Bill C-20 is designed to do is to
establish rules to apply at one stage of a process in the place of
unilateral secession action that the Supreme Court has said is
illegal. I strongly suggest that looking at Bill C-20 in terms of
this more limited but crucially important function will eliminate
many of the concerns that have been attached to it.
The second matter is divisibility. The Supreme Court, in
its decision on the reference, stated clearly that under certain
carefully defined circumstances, there is a constitutional right of
a province and a constitutional duty on Canada to negotiate
Honourable senators, leaving aside for a moment the issue of
the force and the effect of the reference, the legal position is
quite clear. To assert that Canada is indivisible requires saying
that the Supreme Court was wrong in its decision. While anyone,
of course, is entitled to express such a view, it is not easy to see
where one goes with it, especially since the court has spoken to
both domestic and international rights.
The special committee thoroughly examined the force and
effect of the reference decision. Minister Dion was absolutely
clear that the government considers the opinion to be binding. A
variety of expert witnesses, including Professors Monahan,
Garant, Magnet and Hogg, agreed and confirmed that it is the
widely held view among authorities on the subject.
While the status of a reference opinion will probably continue
to be the subject of some scholarly speculation, I submit that the
reality is clear. The Supreme Court has said that Canada, in very
carefully defined circumstances and following carefully defined
processes, is divisible. That is the law of Canada.
My next point is in the nature of an observation. While it has
not always been obvious from media reports or even from the
language of senators, few or perhaps none of us in this chamber
have argued that Canada is truly indivisible. There has, on the
other hand, been much analysis of how difficult it should be to
divide the country. There has always been much discussion and
soul searching as to whether we should actually say it is divisible
in writing, in resolution, in ordinary legislation or in
I now want to turn to some of the theoretical propositions that
have been advanced. I use the word "theoretical" with great
respect and in the most positive sense.
Senator Joyal, on May 10, 2000, laid out with great clarity, in
great detail and with admirable scholarship a theoretical
framework for several aspects of this debate. Many others, before
and after, have presented analyses and insights that have built on
and around that framework. Others have come from different
Honourable senators, let me go to the beginning of Senator
Joyal's speech, where he lays down the foundation of his case on
indivisibility or, as it appears to me, near indivisibility.
He reminds us that, unlike in the case of France and "many
other federations and unitary countries in the world," Canada's
Constitution contains no explicit statement of indivisibility.
Senator Joyal, in response to a question from Senator
Lynch-Staunton, described how he tried, in 1981 and 1982 when
co-chairing the Special Joint Committee on Patriation of the
Constitution, to insert a statement of indivisibility. He told us that
he was unsuccessful for reasons he explained and, judging from
his words, which seemed to him to be understandable.
We then come to a portion of Senator Joyal's argument that
leads me to serious questions. He calls our attention to the
language of the Supreme Court, paragraph 62, where it is
suggested that the word "democracy" does not appear in our
Constitution because it is so obvious that it might have "appeared
redundant, even silly" to have done so. He draws a parallel and
suggests that the framers of our Constitution in 1865 and
following would have felt that the concept of indivisibility was
so obvious that its inclusion would have appeared similarly
"redundant, even silly," and therefore "it was simply assumed." It
seems clear to me from Senator Joyal's words that his entreaties
to include an explicit statement of indivisibility in 1981 and 1982
were not rejected because the idea was "redundant or even silly."
On the contrary, they were rejected because an explicit statement
of indivisibility would have cut deeply to the core of Canadian
sensibilities and put at risk the delicate balance that allows our
remarkably rich, sometimes contradictory and always finely
balanced confederation to function.
Honourable senators, let me test this analysis in the context of
1867 and the environment in which our Fathers of Confederation
were working. They had a monumentally difficult task. The
proposed parties — the provinces — brought widely differing
histories, culture and political temperaments to the table. They
faced large, difficult geography, which was to be even more vast
in the great vision of John A. Macdonald and others with whom
he shared it. Perhaps most important of all in terms of real
politics, and unique among all other countries at birth, they had
the example of the United States at their very doorstep. Like
Senator Joyal, I look there for guidance and insight.
What were the compelling realities the United States example
imposed? Not having the word "indivisible" in their Constitution,
they certainly had experience with the concept. "In pursuit of the
more perfect Union," to quote their preamble, they had endured
on the very eve of our Confederation a bloody and terrible war.
To make their Union indivisible, they lost the lives of more of
their citizens than in any war before or since. Make no mistake,
honourable senators, it was about indivisibility. It was the belief
of the Union that only an undivided America could then have
pursued its macroeconomic and social goals, based on freedom
and not slavery and on the trade and industrial policy the Union
sought to achieve.
While the United States courts had talked about indivisibility,
it was the Civil War that sent a stark message to the drafters of
our Constitution. It was the Civil War that presented the harsh
reality of rigid indivisibility. It was the Civil War and its root
causes where rights and powers heavily weighted to the states
hampered efforts to build an even greater nation.
I therefore suggest with all respect for my colleague Senator
Joyal that an explicit statement of indivisibility was not left out
of our Constitution because it was so obvious not to be needed; it
was left out because it was seen as inappropriate for the new
Canada that was being created. Instead, reacting to the
experience of the United States, our framers sought and found
more subtle constitutional provisions. They assigned areas of
legislative jurisdiction tilted more to the central government than
in the United States. They granted their Canadian government
the residual power. They mandated the Canadian Parliament to
make laws for the peace, order and good government of Canada.
The framers of our Constitution were not ignorant of the
ringing declaration of indivisibility in the French Constitution —
of course not. They were obviously aware of it. They were more
moved, however, by the spectre of what such an immutable
constitutional provision could mean.
I agree with Senator Joyal that the United States had the
concept ingrained, even though the word was not there.
However, I draw a different conclusion from that fact. In my
view, it was enough to caution our drafters, already sensitive to
the delicacy of their position. I suggest to you that in Sir John A.
Macdonald's vision of Canada's future he saw more potential in
the unifying power of a national railway than he did in a
provocative phrase. He understood, I believe, that whether
Canada would prove to be indivisible would be determined by
the effectiveness and flexibility of its Constitution and the
wisdom, generosity and efforts of its governments and its people
rather than by a declaration in a document or a concept
incorporated by implication.
Honourable senators, you now have before you two very
different views of how we got to where we are based on two
different readings of our history. Nothing I have said is intended
to challenge or invalidate any of the technical arguments that
have been made. However, I believe that a different
constitutional reality has been built on our shared British
heritage. I too cherish that heritage, which, in a modern context,
has allowed continuous and fundamental constitutional evolution
and even division in Britain itself.
I earlier observed that few or none in this chamber have
advanced a case for absolute indivisibility. Rather, there has been
a wide range of views on how rigid or difficult the process
should be. The technical analysis leads to a notion of
indivisibility and a high degree of rigidity. My approach suggests
that, while fully understanding all of the constitutional powers,
privileges and obligations that came down to them through
history, our Fathers of Confederation were more heavily
influenced by their knowledge of more contemporary events and
the political realities they faced in Canada. Canada, I submit, was
born of flexibility and the willingness to adapt constitutional
theory to the work they had to do.
Now to today's problem. Since, as I have observed, few if any
are saying there is absolutely no right of secession under any
circumstances, the question really is: Where do we set the bar? Is
it as simple, if I can use the word, as a constitutional amendment
by one or the other of the formulae? Is it unanimity of provinces,
with or without a national referendum? Or is it, as a very real
possibility, the subject of a general election?
All of these are worthy of extensive debate and would no
doubt receive that should the awful circumstances ever arise.
However, in a very real way all these questions are beside the
point and are not before us in this very short, simple bill,
Bill C-20. If we said, I suppose, that the bill fails fundamentally
because it envisages an event, the secession of a province, in
which no circumstance whatsoever is possible under our
Constitution, we could perhaps reject it. However, I do not read
that into the constitutional position enunciated by the Supreme
Court, nor do I hear that in this chamber. Nor, honourable
senators, do I hear wide support in this chamber for the case that
a national referendum must be held before negotiations could
begin under the terms of Bill C-20.
The case of a national referendum was vigorously advanced in
committee but was not supported by most of our expert
witnesses. Its rejection was reinforced in an article in the
National Post on Wednesday, June 14 by Professor Patrick
Monahan. He dealt fully and directly with this question and
emphasized that the concept of a national referendum prior to
negotiation contradicts both the Supreme Court and the very
principle of demanding clarity of question and result as a
pre-condition to negotiation.
One of the most important things about our debate on this bill,
and, indeed, one of the most important things about the Senate
itself, is that we send messages to Canadians and beyond. My
message would be that we have resolved from the day of our
creation as a nation that we are a voluntary coming together of
people organized in provinces and territories and united under
certain principles. We rely on our values and our conduct to keep
us together. We acknowledge that the inevitable consequence of
an absolute denial of divisibility, should our ability to meet the
needs and aspirations of a province ever be irrevocably lost, is a
price that we are not prepared to pay. We must therefore accept
that, if all else fails, a safe and reasonable approach to separation
is what we would have to find. That is what the Supreme Court
has told us and that is what I believe is right.
Finally, let me turn to the position of the Senate under
Bill C-20. The role of the Senate envisaged by Bill C-20 has
attracted a great deal of attention in this chamber, and no wonder.
For a variety of reasons that have been advanced, and others that
have been speculated upon, the government has decided that the
role of the Senate under Bill C-20 should be limited to one of
consultation without bicameral parliamentary process. The result
has been great stress on this institution and on individual
senators, including myself. It is particularly difficult because of
the importance of the bill and its relevance to the historic role of
I wish to describe how I have sorted my way through this issue
and why I shall support the bill without amendment. From the
start, I have been perplexed by the provisions to limit the role of
the Senate. I find it particularly difficult because, like many in
this chamber, I am strongly in support of the bill otherwise. I was
in favour of the reference to the Supreme Court and was
delighted and encouraged by the conclusions and quality and
thoroughness of the decision. My inclination, therefore, has been
to support Bill C-20 since it is designed to give legislative effect
to the core findings of that decision.
To do so, I have had to find my way through the other
problem, the Senate problem. I use the expression and have had
to find my way with good reason. After reading Bill C-20 and
realizing its provisions in terms of the Senate, I had difficulty in
seeing how I could support it, in spite of my conviction about the
bill's principles and purpose. I sought every opportunity to
exchange views with others similarly preoccupied. I listened
carefully to the speech of Senator Boudreau on introduction of
bill in this chamber.
While I was not swept away by it or instantly converted, it did
serve to turn my mind in new directions. More than anything
else, it caused me to step back and look more thoroughly at the
entire picture that might emerge in a provincial referendum
situation and the various steps that would ensue.
I contemplated the complete sequence of events that would
confront Canadians in the case of another referendum call
through to, in the worst circumstances, a constitutional
amendment process dealing with the secession of a province.
I then thought more about constitutional amendments and the
Constitution Act, 1982. I read that act and articles and the
speeches from that time, particularly in regard to the Senate.
What comes through clearly is the major role the Senate played
as part of the shifting of constitutional power to the provinces.
Limited only to matters of constitutional change, by giving up its
absolute veto and accepting the suspensive one, the Senate took a
step in favour of a new order. That decision, agreed to after deep
thought and I am sure conflicting feelings by senators of the
time, did create the context for our dilemma today.
Without that decision, and the acceptance of constitutional
evolution by the Senate in 1982, I would not be voting for
Bill C-20 today. It would be difficult to accept a limitation in our
role without there having been other fundamental constitutional
events. However, 1982 and the evolution it represented in the
affairs of our country did happen. Our role in constitutional
affairs is clearly defined and is different from that of the other
place, and therefore today I can, and indeed must, look at
Bill C-20 in that light.
I accept that some debate will continue as to whether the
decision on clarity would technically be part of an amendment
process. However, it is obvious to me that the overwhelming
expert evidence we heard was that the government is not
exceeding its powers in treating it as such and in not involving
the Senate as an active party until later in the amendment
In the course of this study, I have looked carefully to the
powers of government, the Senate and the House of Commons in
respect of constitutional change. I have also had the opportunity
to listen carefully to Mr. Dion on the subject as well as to leading
constitutional experts in committee. I have found credible the
arguments that the Senate lacks the power held by the other
place, the power to withhold confidence from the government.
Coupled with the unqualified right of the government to enter
into discussions and negotiations with the provinces that may
lead to constitutional amendment, there is a power relationship
between the Commons and the government that simply does not
exist in terms of the Senate. This, in turn, rests on the view, again
strongly supported by evidence at committee, that a
constitutional amendment on secession would be an amendment
like that on other fundamental matters.
Acknowledgement of the right of the Government of Canada
to enter into negotiations possibly leading to a constitutional
amendment and subject only to maintaining the confidence of the
House of Commons, is essential to acceptance of Bill C-20.
However, I submit the other side of the coin is equally true.
Unless one can successfully advance a case against the power of
the government in such circumstances, and oppose some new and
different procedure, it is difficult to deny the right of the
government to proceed as determined by the Supreme Court and
incorporate it in Bill C-20. I have heard no one do that. The
overwhelming weight of expert evidence in the special
committee confirmed that the government has this power.
Even if one follows the suggestion of Professor Magnet that a
secession amendment could require the unanimity formula, it
makes no difference to Bill C-20. As several experts have
observed, Bill C-20 comes too early in the process for that and
other important matters to be at issue. It has clearly been
established to my satisfaction that a national referendum is not a
condition precedent to negotiations.
After all this, I still ask whether it had to be this way or
whether other options were available. Many of us have struggled
with this. I accept evidence given to the committee most
explicitly by Professors Monahan and Hogg that the government
has many options. Mr. Gibbins of the Canada West Foundation
also agreed that the government has a choice of where to go for
advice in this matter. On the one hand, it could have sought no
legislative authority at all and proceeded on its own power to
negotiate constitutional change, including secession. On the other
hand, the government could have selected one or both houses of
Parliament or some other group altogether to judge the matters of
clarity of question and majority. The government opted to refer
the question to the House of Commons.
There are two principal arguments offered in support of this
choice; first is the fact of it being the popularly elected chamber
to which the government is ultimately responsible, second is the
concern about the two Houses coming to different conclusions, a
deadlock for which the legislative process of amendment or
defeat would not be available.
Based on these two arguments, the designation of the House of
Commons alone is not an outrageous or irrational choice. In fact,
I suggest that many of us would be comfortable taking that side
of the debate, were we not senators.
Senator Cools: I do not think so.
Senator Kroft: However, that is hypothetical. We are senators
and we do have a view, a feeling, and a responsibility on this
matter not shared by others. Thus, we are placed in this dilemma.
There may be some in this chamber, but I suspect not many, who
believe the government's course of action is completely
appropriate and acceptable without question.
For myself, I acknowledge it as legally correct and not in
violation of any parliamentary or constitutional rules of
procedures. On the one hand, I am driven to do so by the clear
weight of evidence and learned opinion that has been placed
before us and my own careful analysis of it. On the other hand, I
do regret the government's decision.
While it is a legitimate and supportable option, within the
range of acceptable alternatives, it is a lesser option. With the
Senate fully involved, a more considered position and greater
representation of broad Canadian interests would have been
assured, even if special rules as to the Senate's response time had
been imposed. Would this have been at the expense of some
efficiency and certainty? Perhaps so, but depending on
circumstances, and on who is in control of the House of
Commons and what their view of Canada may be, some
inefficiency or uncertainty might not be a bad thing.
If uncertainty and the fear of deadlock were too serious to
contemplate, some sort of joint committee might have been
devised. There were other possible choices. Government is
always a matter of choices. That is the business of government.
Honourable senators, a decision has been made. Based on all
that I have heard and read, I am satisfied that these are matters of
political judgment on which the government has a right and
responsibility to make a determination. They are not matters that
impose on senators an obligation to defeat or amend this bill.
We must still ask ourselves about the rights and duties of the
Senate and its place in the parliamentary process. Is
there damage done here? That we must ask, since we were
entrusted with the protection of this place. Will the future of the
Senate be compromised? What will be different afterwards?
I cannot answer those questions for everyone here, obviously,
but after many weeks of intense and objective study, I can answer
it for myself. I do not believe the Senate will suffer. In fact, I do
not believe there is any significant change from what has
prevailed since 1982. It is simply a logical piece, resulting from
the decisions taken at that time.
A decision was made in 1982 for our Constitution and, with it,
for our Senate to evolve. The Senate is assured of its role in any
constitutional amendment process if it would be required to give
effect to secession of a province, as it would be with any other
In closing, I wish to state that my support of Bill C-20 rests on
a personal conviction that it does not go beyond the Constitution
Acts now in place or beyond the powers of government or the
House of Commons granted by written constitution or
convention. Bill C-20 represents absolutely no incursion on
existing powers of the Senate. The Senate is not denied any
rights or powers it now holds within the general scope of
law-making or in the constitutional process. If I believed
otherwise, I would not support it.
Beyond this, and of far greater importance, I strongly believe
that Bill C-20 will prove to be an important and valuable tool in
the cause of national unity. The decision in the Supreme Court
reference denied legitimacy to arbitrary, unilateral secession by a
province. Bill C-20 assures that our country will not be divided
by accident or confusion. Honourable senators, I urge you to join
with me in supporting Bill C-20 without amendment.
Hon. John G. Bryden: Honourable senators, I should like to
make a comment to Senator Kroft. I have had the opportunity not
only to listen to his speech but to review the transcripts of the
testimony before the special committee dealing with Bill C-20.
Much of it was instructive, and some of it was enlightening.
I want to say very clearly that the comments and questions that
were directed by Senator Kroft during that time were the most
cogent and directly on point of any of the questioners that I was
able to review. I want to say also that a speech that I would have
given, had I the opportunity to put it together and do it well,
would have been the speech that Senator Kroft has just delivered.
I concur with his clear analysis and his position. I may get an
opportunity to speak later, but his is the clearest statement that I
have heard. That is why I, too, will be supporting Bill C-20.
The Hon. the Speaker: Honourable senators, so that there
may be no misunderstanding later, because I realize that this is a
very important bill, Senator Kroft spoke for more than
15 minutes. Under rule 37(3), being the first speaker after the
sponsor of the bill, the sponsor being Senator Hays, Senator
Kroft was entitled to a 45-minute allotment, under our rule.
Senator Bryden's comments are within that 45-minute period.
Others may speak within that 45-minute period without
exhausting their right to speak at a later date. I just wanted to
have that clear so that there would be no misunderstanding as to
the procedure. If there are other questions or comments within
the 45-minute period, it will not exhaust honourable senators'
rights to speak again.
Hon. Marcel Prud'homme: The honourable senator said at
first that he regrets. Well, any time someone starts by saying
"I regret," I pay attention, because I know that the conclusion
will not go with the regret.
He says, "Of course, we have reviewed." To that, I say, sure,
So has everyone else in the country. The difference with
everyone in the country that has views is that we have a
constitutional view. We are the Senate of Canada. That some
people disagree with the Senate or not could be a debate at
another time. We have never gone to the country explaining what
the Senate is all about.
Does Senator Kroft still feel very comfortable, even though he
regrets having to go that way, that the Senate is being eliminated
in the process? We know that until Canadians — only Canadians,
not scholars, not the press, not lobby groups, but Canadians —
decide to change the institution, Parliament is two Houses: the
House of Commons and the Senate. Here is a bill under which
we senators will debase — perhaps another word is "diminish"
— ourselves. We just decide that we do not count. We have not
only diminished, we agreed to disappear in such a very important
What is the honourable senator's view on that? Does he not
see it as a diminution? It is more than that. I wish I had the
vocabulary, but I want to speak his language.
This is doing more than diminishing our powers, it is doing
away with the fundamental right of the Senate to take part in one
of the major steps in the political life of Canada.
Senator Kroft: Honourable senators, I do not agree,
obviously, and the point that I was trying to make is that we are
not giving away, or whatever word it was the honourable senator
would have chosen, any power that we now have. My analysis
demonstrated that we shall remain with every power we have
today after the passage of this bill. While the other place has, for
the purpose of a consultation, been given a greater power within
the terms of this bill, nothing has been taken away from us that
we now have. Our role in any future legislation or constitutional
amendment will be undiminished from what it is today. I do not
have this challenge of conscience that Senator Prud'homme
would like to impose upon me.
Senator Grafstein: Honourable senators, Senator Kroft knows
my view. We had the opportunity to listen to each other and ask
questions. We do have a fundamental difference that I want to
ask him about, and that difference relates to a view of the
I start with the proposition, which he opposes, that we did
indeed come together in a voluntary manner. The various
colonies came together in a voluntary manner through their
legislatures and through votes. I agree with that. However, once
we were joined in the mighty nation under one Parliament and
under one Crown, it was clear to me, based on those early
debates, that in fact we had passed from a voluntary, consensual
relationship between the various constituent parts of Canada into
a mighty union, an indissoluble, indivisible union. The words
very carefully chosen, if I recall, by Sir John A. Macdonald,
were, "under the Crown." He said, and I quoted his speech, that
the desire of the parliamentarians of the day was to come
together to form one people, one country, under the Crown — the
Crown; and indivisible. He used the word "severance." In that
same speech in 1865, which I quoted, he said that we could not
allow any severance because we had vested all that power in
My question is this: How does the honourable senator
differentiate between that very appealing and difficult-to-dispute
notion of voluntary joinder and the proposition that once we
voluntarily join, we live under a constitutional rule of law and
therefore are bound, not by opinion, not by assent, but by rules of
law? How does Senator Kroft deal with that proposition, before
dealing with others?
Senator Kroft: Honourable senators, I certainly did deal with
it with a great deal of thought before delivering this speech, and
there is no question, like many things in life, that getting out is
easier than getting in. That is in the nature of our confederation
or our union. I would not suggest in any way, nor do the
constitutional rules that we have devised over the years, that one
passes in and out of a collection of provinces that have come
together in a union.
However, neither do any of the terms "rule of law," "mighty
nation," or "under the Crown" mean to me the permanent
forgoing of a right, under any circumstances and any conditions,
to ever tear that asunder. Even if we go to the Mother of
Parliaments under the Crown, the United Kingdom has found a
way to meet its needs for division, separation and contrivances
I agree that once pulled together as a mighty nation under the
rule of law and under the Crown it should be difficult to separate,
but I do not agree that we should press that point so there is no
alternative other than force, which I do not think Canadians are
prepared to accept as viable.
Senator Grafstein: I shall cite one short example and then
leave it for another day, that example being Western Australia.
The Australian states were brought together in a union not
dissimilar to the way in which we were. In 1933, one very
unhappy state, Western Australia, voted on a clear proposition
that they wanted to separate from the other states.
That issue came forward to the Australian Parliament, and
Parliament said that it had no power to deal with the issue. The
matter then went to the House of Lords for a judicial
determination. The House of Lords found that even if a state
voted in favour of a clear question, with a clear majority, the
Parliament and the government had no obligation to negotiate. Its
reasoning was in terms of the Royal Prerogative to which Senator
Cools has been referring. It was simple and straightforward that
the only way there could be secession was if there was a vote of
all the people, because true sovereignty did not rest effectively in
the Crown but with the will of the people of the entire union.
I should like to hear Senator Kroft's comments in that regard.
Senator Kroft: Honourable senators, first, the law of Canada
has been enunciated for us by the Supreme Court reference. The
procedure and the obligation to negotiate has been set out.
Further, while I have tried to analyze and reject the obligation to
call for the referendum before the negotiation on secession,
which to me is a fundamental contradiction in terms, there is the
potential, should it be the decision of the political leadership of
the time, to later have a national referendum. Nothing in any of
this rules that out or rules out an election.
In the early portions of my speech, I was saying that we should
not build everything into Bill C-20 and that we should let
everything mature in its time, while staying within the context of
the law enunciated in the Supreme Court decision. Then, if it is
the national consensus and if court decisions or a compilation of
provincial referenda legislation comes to the fore, we may indeed
have the effect of a national referendum. I see nothing to rule that
out. I am only addressing what I feel is imposed in the proper
legal processes under our Constitution and our judicial decision.
Senator Grafstein: I wish to address a comment to
There was an issue earlier today dealing with the question of
sovereignty and prerogative. I specifically wanted to address this
question to my honourable friend to perhaps help you, Your
Honour, examine as deeply as possible the very potent question
raised by my honourable friend Senator Cools with respect to the
nature and role of the Royal Prerogative as it applies to the
indivisibility of Canada. My friend has been raising this and has
joined issue on it. Regrettably, Your Honour, this is a question of
the rule of parliamentary law, and you are now burdened with
this awesome task.
Senator Cools: Sovereignty is indivisible. That is why, in the
British constitution, sovereignty resides in the person of one —
the King or the Queen. Sovereignty must be and is indivisible.
My question has to do with the Liberal Party position, which
Senator Kroft has adopted. In committee, Senator Pitfield
expressed some surprise that the Liberal Party has now adopted a
position that Canada could be dismembered, partitioned
First, what process did the Liberal Party of Canada exercise to
arrive at such a Liberal Party position?
Second, former prime minister Pierre Elliott Trudeau, the
leader of the Liberal Party, was compelled in 1980 to make the
reference to the Supreme Court on the then patriation reference.
He expressed his opinion of what the court did in that 1980
reference. Knowing what Mr. Trudeau has said about the
Supreme Court's opinion of 1980, about which Mr. Trudeau has
spoken extensively and from which I have quoted extensively in
my speeches, how did Mr. Dion and other supporters of the
current position arrive at the position Senator Kroft is now
adopting? Most Liberal prime ministers of Canada have never
adopted a similar position.
Senator Kroft: Honourable senators, I could not begin to tell
you how former prime minister Trudeau arrived at his position or
how Mr. Dion and the current government arrived at theirs.
Today I was attempting to explain my position. It is my position
based on an assessment of the facts, procedures, decisions and
the arguments put before me. I should not presume to go beyond
that. To the extent that this may have some impact on those
senators here, I am grateful, but I shall have to leave it to others
to address Mr. Trudeau's position.
Senator Cools: To put the question in another way, is the
position that Senator Kroft and Mr. Dion have adopted consistent
with Liberal Party history and the Liberal Party position for the
last 100 years?
Senator Kroft: I am not capable of answering that question
Senator Cools: That is a question that I am having enormous
difficulty getting answered. Having been a loyal Liberal for
several decades, I fail to understand how it is I never knew until
recently that Canada could be divided in the way that is being
The Hon. the Speaker: Honourable senators, I must inform
you that the 45-minute time period has expired.
Hon. J. Michael Forrestall: Honourable senators, I ask that
the debate be adjourned in the name of Senator Fraser.
The Hon. the Speaker: It was moved by Senator Forrestall,
seconded by Senator Beaudoin, that further debate be adjourned
in the name of the Honourable Senator Fraser. Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Senator Cools: On a point of order, I would note that Senator
Fraser is sitting right here. There is some confusion. Senator
Forrestall has just moved the adjournment in Senator Fraser's
name, but Senator Fraser is sitting in her seat. Therefore, she
could certainly have moved the adjournment herself.
Senator Forrestall: That is what I thought. That is why I sat
still. It may very well be, honourable senators, that I misread
Senator DeWare's handwriting. It looks like "Senator Fraser."
I would ask that the adjournment stand in my name.
The Hon. the Speaker: Honourable senators, a motion has
been made and accepted.
Senator Hays: Honourable senators, in readdressing the
matter of the adjournment on Bill C-20, we should be
understanding of the fact that, due to committee work, the
Deputy Leader of the Opposition is not here, nor is the whip. I
want to take pains to ensure that we act properly in the matter of
the adjournment of Bill C-20. My impression was that the other
side would adjourn the debate and that is what Senator Forrestall
is proposing. Accordingly, I would ask for leave to rescind the
motion of adjournment in the name of Senator Fraser so that the
debate may be adjourned in the name of Senator Forrestall,
which would be the normal course for us to follow in debate on a
matter such as this.
Senator Forrestall: Would it not be a matter of my simply
withdrawing my earlier motion?
The Hon. the Speaker: I shall admit, honourable senators,
that the motion posed by Senator Forrestall while the other
senator is here is not a normal procedure, but it is certainly not
out of order. The request that we rescind the previous decision
requires unanimous consent.
Is it agreed, honourable senators?
Senator Cools: I do not agree.
Senator Hays: Perhaps I could consult with the leader in the
absence of the deputy leader.
If it is in order to deviate from the normal practice of
adjourning the debate in the name of a senator on the opposite
side, then the adjournment standing in the name of Senator
Fraser is entirely in order as far as I am concerned.
Senator Cools: Honourable senators, I had not realized, when
I raised my objection to the fact that Senator Forrestall had done
what he did, that the motion had been duly carried. If the motion
is duly carried then it must stand. One cannot rescind motions of
this chamber by simple leave being granted. Let it be recorded
that I shall not give my leave.
On motion of Senator Forrestall, for Senator Fraser,
Hon. Raymond J. Perrault
moved the third reading of
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
He said: Honourable senators, I had the privilege of
introducing Bill C-26 in the Senate. I am pleased to rise in my
place again today to endorse the bill as we begin third
As honourable senators are aware, the bill is intended to
enhance the existing legislative framework and contribute to
ensuring a safe and healthy Canadian airline industry.
We are talking about the future of aviation in this country. We
are served by two, or even more, outstanding airline companies.
Canada has a worldwide reputation.
When the process of airline restructuring began almost a year
ago, the government sought advice from various interested
parties to ensure the development of the best possible framework
for a restructured industry. The general public made its views
known, and very vigorously, I should say, through thousands of
letters not only to the Minister of Transport but also the Members
of Parliament, whether they serve in the Senate or in the House
We had a letter read earlier today from an irate traveller.
Air Canada takes the position that it is going to take a while to
work out all of the bugs and all of the problems. That may well
be true, but we must have a means by which commuters can
register their complaints and have them effectively dealt with.
This is one of the points that we insisted on in the committee
Honourable senators, the fact is that the Senate has played a
major role in shaping this bill through the activities of our
standing committee last fall and since the introduction of
Bill C-26 by the Minister of Transport on February 17 this year.
This has been a very painstaking and thorough study.
The result is a good piece of legislation. Perhaps it is not
perfect, but it is a great start. It is a good bill that addresses the
expectations of many stakeholders while preserving the
principles of deregulation which have governed the domestic
aviation sector since the year 1988. All the major stakeholders
appeared in order to help our committee assess the value of this
bill. There was good input not only from the government side of
this house but also from the opposition side. A very constructive
attitude was demonstrated by participants.
The Minister of Transport with his officials, the Canadian
Transportation Agency, the Competition Bureau and the
Commissioner of Official Languages gave their perspectives on
the bill and took questions from the committee members. They
were very deeply probing questions.
The two major carriers, Air Canada and Canadian, and other
carriers, both their affiliates and their competitors, including
foreign competitors, the Air Transport Association, the Travel
Agents Association, consumer advocacy groups, affected
employee groups and the Association des Gens de l'air made
presentations and answered questions.
I must point out that along the way I hope that full
consideration is given to the rights of the existing pensioners.
Some have contacted me, as I am sure that they have contacted
other members of the committee. They told me that they were
pioneers in the airline industry. In particular, pensioners from
Canadian Airlines told me that their pension rights were derived
many years ago and that they are apprehensive about the future
of their pension plan. We should seek assurance that these
long-term pensioners will be treated fairly.
Let me just recall for honourable senators how this legislation
responds to the 19 recommendations made to the minister by our
standing committee last fall. The undertakings negotiated
between the Commissioner of Competition and Air Canada have
resulted in the implementation of four of these recommendations.
The commitments made by Air Canada to the Minister of
Transport implements two of the recommendations. Bill C-26 not
only makes the undertakings and commitments enforceable, it
implements three of our recommendations.
You may also be aware that the Minister of Transport recently
announced the liberalization of Canada's international air charter
policy which implements another one of our recommendations.
For the rest, the government has not chosen the approach
which we recommended as a result of our committee work, but
we do know that all the issues we identified have been addressed.
Members of our Senate Standing Committee asked many
questions of those who appeared before them in order to ensure
that the proposed legislation does meet the expectations and
needs of those who will be most affected by it. Questions were
asked not only with respect to Bill C-26 itself but also with
respect to the draft regulations setting out anti-competitive
behaviour in the Canadian airline sector. In our view, there is just
nothing like competition in this industry.
The Standing Senate Committee on Transport and
Communications in its report recommends adoption of this bill.
I am pleased to propose speedy passage so that it can come into
force as soon as possible. There is no doubt we need these new
consumer and competition protection measures, and we need
them right now.
Although the Standing Committee was prepared to support
Bill C-26, members felt strongly about certain aspects of the
impact of airline restructuring. The committee report includes a
number of observations on which I shall say only a few words
because I share these concerns as a member of the committee.
There is concern about fares, both high and low. The whole area
of setting fares seems to be a very mysterious process to many of
us. I can buy a ticket in Vancouver and fly return to Manchester,
England for $550, and yet it costs more than $3,000 to get from
Vancouver to Ottawa. This is cause for at least mystification.
It can be said, of course, that the charter airlines make this
process possible with the economy seat, which is true, but there
are still some questions that have to be answered.
As I said, honourable senators, there is concern about fares,
both high and low. You may have received complaints from
people living in your area. If you receive complaints — and this
applies to all of us, including myself, because I have already
passed along some — let Air Canada know about the situation.
They are establishing a complaint mechanism, which is supposed
Honourable senators, the committee also expressed concern
about service, especially service to smaller communities. There
is also a concern about impacts on small airports. Committee
members were also sympathetic to the concerns expressed by
both the employees of Canadian Regional Airlines and the travel
agent community. There are many questions that remain
On the matter of official languages, the committee is urging
the government and Air Canada to work more diligently "to
promote in air transport in Canada a respect for linguistic
equilibrium representative of Canadian reality, both as it applies
to services, to clients and to the avoidance of discrimination in
hiring practices." This was a matter that was discussed in
committee for a substantial length of time. We believe that these
norms have to be established.
The committee intends to do further work to follow airline
restructuring over the next while. It intends to review the
proposed regulations dealing with anti-competitive behaviour
and it intends to investigate the impacts on small airports.
The committee also urges that monitoring be taken seriously
and that when remedial action is recommended that action be
taken quickly. The passage of this bill will help to improve the
current situation by firmly establishing the framework within
which the industry will operate; at least we hope it will. If there
is any deviation from quality and good service, action will
We believe that passage of this bill will set the rules of the
game and provide a more certain environment for Air Canada
and its new and existing competitors. Passage of this bill will
help encourage the development of competition by offering
protection from anti-competitive behaviour on the part of the
In this regard, we are already seeing evidence that the
government's approach is starting to work. The first few days of
this integration process were an absolute nightmare from coast to
coast. There were many difficulties in Toronto, as honourable
senators are aware; indeed, there were difficulties in all of the
provinces. However, we are now seeing evidence that the
government's approach is starting to work. Several existing
carriers, both scheduled and charter, have begun their expansion
or have announced plans to do so in the near future.
This is a fascinating process because there will be a
competitive airline offering a quality of service — at least, they
hope to establish such a level of service — comparable to
Air Canada and offering the same kind of higher-class seats.
Competition is out there, honourable senators.
The bill has provisions designed to deal with specific problems
that consumers may face. This bill offers better protection with
respect to pricing on monopoly routes, improved protection for
domestic travellers with respect to terms and conditions of
carriage, and protection for service to small communities. It
requires Air Canada, where the demand warrants, to provide
travellers with air services in both official languages.
The office of the air travel complaints commissioner — that is
to whom all the mail setting out customer complaints should be
forwarded — that will be created by this bill will have the power
to review cases and mediate between the complainant and the
airline involved. The complaint commission will probably have a
site on the Internet as well.
Honourable senators, together with many other members of
the chamber I support this bill. I believe that a strong vote in
support of the bill will send a powerful signal to the industry and
the travelling public that the government will play its proper role
in a restructured airline industry.
By supporting this bill, honourable senators, we shall bring
final parliamentary approval to legislation that will help to create
a Canadian-controlled airline industry, one that will be able to
take its place with the world's biggest and very best — an airline
industry that will serve all Canadians with high-quality service at
I thank all honourable senators on both sides of the house who
have offered such constructive advice and suggestions so that we
may create this great airline.
Hon. J. Michael Forrestall: Honourable senators, there are
one or two observations that should be made before I join with
my colleague in wishing this bill bon voyage. I want to deal for a
moment or two with the observations made by the committee —
observations that irritated me at the time; however, now that
I have read them I think they are very sensible and I have come
to see the light.
I wish to touch briefly on the draft regulations. Honourable
senators, a poll taken in the last while and reported in the press
today is less than flattering to our dominant carrier, and I think
probably deservedly so. The Canadian flying public have had one
heck of a two years. If it is getting better, it may be just because
I fly Ottawa-Halifax and have the advantage of using Canadian
every once in a while. I do not have to rely on Air Canada, no
matter who owns both.
Finally, I should like to indicate that we shall keep a very close
watch on the events over the next two years. We shall plead and
urge strongly in this place for a full review of the legislation, and
we all have reason to believe that the appropriate standing
committee of the other place will want a full review of the
legislation. I suppose that could be extended to include
First, I wish to deal with anti-competitive acts and the
regulations that have been drafted and will be available to the
Competition Bureau in enforcing the clauses of this bill that are
designed to protect against the gouging, overpricing and
anti-competitive measures that usually come about when a
dominant carrier, such as Air Canada, comes upon the situation
that we have today. I should preface this remark with a brief
story of WestJet going into Moncton, New Brunswick, as a good
catchment area. It was attractive to WestJet for a number of
reasons. One could attract customers from Charlottetown,
Fredericton, Saint John, New Brunswick, from the Amherst and
Springhill areas, and perhaps from even a little further than that.
Air Canada noted this activity and proceeded to move swiftly by
adding a significant number of additional seats. If that were not
bad enough, for a young airline trying to get on in the eastern
part of our country, Air Canada undercut WestJet's prices.
The point I want to make is that when this proposition was put
to the assistant director of the Competition Bureau, he had this
observation to make. He said that had the regulations proposed
under this bill been in place, with respect to the actions of
Air Canada, we would have been contemplating criminal
Honourable senators, I make that point because it loudly and
clearly demonstrates the strength of the draft regulations. As
Senators Perrault, Bacon and others on that committee have
noted, whether this bill works will depend in large measure on
the effectiveness of the Competition Bureau.
Senator Perrault: Hear, hear!
Senator Forrestall: Its effectiveness will be determined by
the usefulness and strength of these regulations.
Anti-competitive acts provide for action where avoidable costs
are somewhat hidden in order to gain a competitive advantage,
such as increasing capacity on a route at fares that do not cover
avoidable costs; ensuring that all costs must be included; or using
a low-cost second brand carrier in a manner described above. In
other words, one cannot do in the airline industry by one
means that which one cannot do directly, an old and
The commissioner went on to say that companies ought not to
pre-empt facilities or services because of their size, stature or
dominance in the field. These facilities or services are required
for the operation of other airlines. Companies should not be
pre-empted from takeoff and landing slots required for the
operation of other carriers to the extent not governed by other
regulations that have to do with the allocation of slots. That is a
question that is still before the standing committee.
Other issues include commission overrides or other
inducements, such as using the offer of unusual awards or going
on alternate networks or other infrastructure or facilities for the
purpose of and with the effect of eliminating or disciplining the
competitors or impeding entry or expansion into the market.
Suffice to say that it is the regulations that will make this
At the early stages of consideration of this matter last fall, we
on this side argued and found a great measure of support on the
government side for reviewing the role of the Competition
Bureau. We believe the bureau should be given the tools and
authority to do swiftly what the Canadian Transportation Agency
sometimes took months to do because of its structure.
Things in all disciplines move very rapidly today. Knowledge
is expanding at unbelievable rates. The same is true in the airline
industry. If there is an opportunity and one does not move to take
it this afternoon, it will not be there tomorrow morning. We must
find ways of making it easier and quicker to give direction to the
airlines with respect to consumers' rights and their protections.
As well, we must give them more open and freer routes.
There is cause for rulings on a variety of matters ranging from
mergers through to rates and international carriage.
Honourable senators, your committee appended to its fifth
report a series of recommendations. I hope that these are closely
read because they indicate our concerns about both low fares and
With regard to high fares on routes where there is no
competition, it is not altogether clear to the committee whether
clause 4 of Bill C-26, which will replace section 66 of the
Canada Transportation Act, will be sufficient to deal with
unreasonably high fares. Only by observation and close scrutiny
will we be able to determine whether we are right or wrong.
Witnesses described other anti-competitive issues that may
necessitate a strengthening of the draft regulations on predatory
pricing. The committee had serious concerns about the welfare of
the employees of Canadian Regional Airlines as they wait for a
resolution of their status. Should Air Canada not bring those
employees back into the family, they have no protection
whatsoever. This is not in keeping with the reputation of Canada
and Canadian labour laws, good business practices or the
common decency of parliamentarians who make the laws under
which these people act.
God knows we have concerns about service. I have had
1,100 complaints about service over the last three or four months.
One of the airlines called me up and asked if they could have
copies of the complaints. I laughed at them I said, "Are you
kidding? They are verbal. Have you been outside your door yet?
Go and stand on the sidewalk, talk to someone about flying in
airplanes around Canada, and you will get a taste of the mood
We heard about pricing and the cost of services at airports.
Landing fees are going up and making things very difficult, just
as with Canada Ports Corporation when they were converted a
year ago. What happens to the municipality when it loses that
certain and sure grant in lieu of taxation? If it loses that grant, it
must rely on its income to make that the difference
We are also seeing a consolidation to a dominant carrier.
Where 20 flights a day used to be flown, 11 flights are now
expected to do the job. That means only 11 fees for landings and
takeoffs. They have lost the revenues from the other nine
landings and takeoffs. That revenue paid local taxes, services,
firefighting and so on.
Finally, I reiterate that this proposed legislation should be
monitored closely. There are many questions in which the
standing committee will be interested.
All agencies in government concerned with the offering of
good travel arrangements to the Canadian public should monitor
and report on the health of the industry.
It is quite a scene out there, honourable senators, probably the
greatest change in aviation in Canadian history — perhaps even
overtaking the addition of jets to the old propeller fleet — but we
shall get through it. I am hopeful; I am not a pessimist about this
at all. However, I do think it is going to be hard on the travelling
public, and whatever we can do to make it easier, we should. One
of the things we can do is pass the bill, get the regulations in
place, and monitor the situation very carefully.
It has been a privilege working with you, Madam Chair, and
with you, Senator Perrault.
Hon. Roch Bolduc: Honourable senators, I attended only one
meeting of the committee that reviewed this bill. I had been told
that there was a problem regarding, among others, the
Association des Gens de l'air. I listened carefully to Mr. Martel,
the association's representative, and I believe that his comments
made sense. The company will have to make a special effort
when hiring personnel. Honourable senators will remember that
there were problems 20 years ago. After a lot of efforts, the
percentage of francophones pilots climbed to 15 per cent.
A certain level of representation is to be expected from a
company that provides services to the public. I am not in favour
of quotas and I am not saying that if francophones account for
25 per cent of the population, then they should account for
25 per cent of all pilots. I would not go that far. However, in a
company of this magnitude, the staff must reflect the population
to some degree. For example, 5 per cent of the pilots at Canadian
Airlines were francophones. That is indecent! I realize that the
company did not serve all of Quebec, but such a percentage
demonstrates an almost obvious kind of discrimination.
I am more or less the spokesperson for the Association des
Gens de l'air in saying that there is a problem and that it is
important that management at Air Canada take a serious look at
this situation. The representative of the Association des Gens de
l'air was not resorting to blackmail. He was a very decent person.
You heard him. Senators Bacon and Forrestall were there. In fact,
Senator Joyal would probably be in a better position than I am to
discuss this issue, since he attended the committee meetings.
We are told that, in the case of a service of this kind to the
public, competition will come with time. I am confident that we
are promoting the creation of a number of Canadian companies
in the airline industry. That is desirable. I know that there are
companies in Western Canada that are doing rather well, with
flights to Toronto and eventually further east, but we should not
have to wait five years to have true competition. There was not
only a management problem with Canadian Airlines, there were
also other problems.
I do not wish to go into my personal experiences with them,
but I have had enough! I am not a nationalist when it comes to
aviation. I am quite happy to use Eastern Airlines or Northwest.
I am proud of the Canadian flag but, if service is lacking, it will
have to be provided using other companies. Air Canada must be
aware of this at all times! For example, this week, there are no
parliamentarians left in the other place and so there are no more
8 p.m. flights from Ottawa to Quebec City. It is 300 miles away!
We are not going to Timbuktu! We are going to Quebec City!
After 5 p.m., there are no flights out!
From 1954 to 1960, I taught at the University of Montreal.
Every Thursday morning, I flew to the University of Montreal
and it cost me $17 return. Now, it costs $600 to come to Ottawa.
So there is a problem somewhere. I shall leave you with that,
honourable senators. I do not wish to take up more of your time
The Hon. the Speaker pro tempore: Honourable senators, is it
your pleasure to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read third time and passed.
Canadian Tourism Commission Bill
Second Reading—Debate Adjourned
Hon. Catherine S. Callbeck
moved the second reading of
Bill C-5, to establish the Canadian Tourism Commission.
She said: Honourable senators, I am happy to rise today to
speak at second reading to Bill C-5, to establish the Canadian
Tourism Commission. The goal of this legislation is to establish
the Canadian Tourism Commission as a Crown corporation. It is
presently a special operating agency located in the Department
In telling you why this piece of legislation has my full support,
I shall give you some background into the Canadian Tourism
Commission and then tell you why the changes in this legislation
The Canadian Tourism Commission was developed in 1995. It
deals with the promotion and marketing of Canada as a desirable
travel destination both in the country and internationally. Since
its inception, the commission has been a success story in every
respect. For most of the period since 1994, direct employment in
the industry has grown faster than the national average. With last
year's creation of 6,000 direct jobs, employment in the sector has
now reached 525,000, and forecasts continue to be very positive.
Between 120,000 and 130,000 new jobs are expected as a result
of tourism between now and the year 2005.
Around the globe, tourism is also very big business. It is one
of the world's fastest-growing industries, accounting for
U.S. $444 billion internationally in annual revenues, and this
figure is expected to grow at an annual rate of 7 per cent over the
next five years.
Thanks in large part to the work of the Canadian Tourism
Commission and its private-sector and government partners,
Canada is getting a good slice of this business and will get more.
If Canada achieves a 1 per cent increase in the share of
international arrivals, it would mean 6 million more visitors to
Canada, $5 billion more in annual revenues, and 158,000 new
jobs. Honourable senators, there is no doubt that Canada can gain
the extra share of the market. The most recent figures on the
success of this marketing effort speak for themselves.
Canada's travel account deficit decreased to $1.7 billion in
1999, down 48 per cent from $3.3 billion recorded in 1995, when
the commission was formed.
The trade deficit gap in this area is being closed. Last year, the
total tourism spending in Canada reached $50.1 billion.
The key to the commission's success was the facilitation of
partnering and cooperation among the various stakeholders —
federal, provincial, territorial, and business partners. This unique
public-private collaboration has delivered valuable tourism
marketing and information-sharing initiatives that have helped
rejuvenate the tourism sector and Canada's appeal as a tourist
Unfortunately, the current status of the commission as a
special operating agency of the Department of Industry imposes
legal and administrative restrictions which now prevent it from
achieving its maximum potential as a partner.
Making the commission a Crown corporation will give it the
legal, financial, managerial and administrative flexibility it needs
to work more effectively with its partners. As a Crown
corporation, the commission will be able to function as a fully
integrated business entity, with the capacity to make its own
decisions, to set its own business priorities, and to move more
quickly to implement them as market needs dictate.
It is because the commission's work is closely tied into the
private sector that it is necessary for it to operate in a more
businesslike way, to have the administrative flexibility to
function as a more businesslike partner.
Let me explain this point further by telling you what the
commission cannot do as a special operating agency. It cannot
enter into partnership contracts and manage partners' funds for
joint undertakings; keep funds year over year, except for very
limited carry-overs; keep revenues generated by merchandising
and reinvest them in programs — such funds now become part of
the government's Consolidated Revenue Fund — and open bank
accounts, including accounts in foreign countries, to pay locally
engaged staff and marketing contractors. The commission must
now pay the Department of Foreign Affairs and International
Trade to use its accounts or issue cheques in Canadian funds,
which are not always accepted by foreign banks.
Bill C-5 is the result of extensive consultations with all the
participants, and that includes staff unions. The corporation will
continue to be subject to the usual federal statutes, such as the
Official Languages Act, the Access to Information Act and
the Privacy Act.
The commission's professional and highly dedicated staff
have contributed significantly to the successful work of the
commission over the last five years. With the changeover to
Crown corporation status, the employees would come under the
Canada Labour Code. This means the commission would be
free to hire the professional expertise it needs to respond to
marketplace challenges as and when needed because it would
not be subject to the complexities of the Public Service
Since the commission was established, Canada has steadily
moved up in global ranking as a tourism destination and is now
in eighth place in international tourist arrivals, and ninth in
international tourism revenues.
All of us know that Canada is the best country in the world in
which to live. If honourable senators give their consent to this
legislation, the rest of the world will know that Canada is the best
country in the world to visit.
On motion of Senator Kinsella, for Senator LeBreton,
Sales Tax and Excise Tax Amendments Bill,
Second Reading—Debate Adjourned
Hon. E. Leo Kolber
moved the second reading of Bill C-24,
to amend the Excise Tax Act, a related Act, the Bankruptcy and
Insolvency Act, the Budget Implementation Act, 1997, the
Budget Implementation Act, 1998, the Budget Implementation
Act, 1999, the Canada Pension Plan, the Companies' Creditors
Arrangement Act, the Cultural Property Export and Import Act,
the Customs Act, the Customs Tariff, the Employment Insurance
Act, the Excise Act, the Income Tax Act, the Tax Court of
Canada Act and the Unemployment Insurance Act.
He said: Honourable senators, I should like to first thank
honourable senators for allowing me to speak at second reading
of Bill C-24.
The goals and opportunities underlying the legislation before
us can be stated quite succinctly — to make our tax system
simpler and fairer, not only for individual Canadians but for
Canadian businesses as well.
Another objective of government that is supported by this
legislation is to sustain and enhance our federal tax system in a
manner that promotes federal-provincial cooperation and
I trust that honourable senators would agree that few issues
affect us as much as the operation of our federal taxation system.
Taxes affect every Canadian and every family, every company
and every organization. It impacts our standard of living as
individuals and our ability to compete and grow as a nation.
The government recognizes that tax reduction is essential to
improve living standards. It increases productivity, creates jobs
and leaves more money in the pockets of Canadians. This is why,
with the deficit eliminated and the debt burden falling, the
government took action to begin reducing the burden of personal
However, broad income tax reduction is not, and cannot be,
the only area for action as we map out a plan for greater
prosperity for all Canadians in the 21st century. From the start of
its first mandate, the government has been active in ensuring that
it provides a tax system that is fair. It has also worked towards a
tax system that eliminates unnecessary complexity.
Further, the government wants to be sure that the tax system
provides targeted assistance to those sectors and groups who
deserve it — for example, charities and persons with disabilities.
These are the objectives underlying the legislation before us.
Bill C-24 does just that.
While this bill is primarily aimed at improving the operation
of the goods and services tax — the GST — and the harmonized
sales tax — the HST — it also contains other important
proposals relating to specific taxes on certain products.
In this regard, Bill C-24 contains measures with respect to
taxation of tobacco products. The government is committed to
reducing smoking rates in Canada, particularly among
It is also committed to providing leadership in the area of
tobacco control. In that regard, honourable senators are no doubt
aware of the National Action Plan to Combat Smuggling which
was launched in 1994. The plan has had a significant impact on
contraband so that the government has been able to increase
taxes on tobacco products in 1995, 1996 and 1998, in
cooperation with participating provinces: Ontario, Quebec,
New Brunswick, Nova Scotia and Prince Edward Island. The
government has monitored each of these increases slowly to
ensure that they do not result in renewed smuggling activity.
Today's legislation puts in place another increase of sixty cents
in federal excise taxes per carton of 200 cigarettes on sale in
Ontario, Quebec, Nova Scotia, New Brunswick and
Prince Edward Island, the five provinces that are our action plan
partners. These provinces are also increasing their taxes on
cigarettes by comparable amounts.
Excise taxes on tobacco sticks will also be increased in
Ontario, Quebec, New Brunswick and Prince Edward Island,
re-establishing a uniform national tax rate on tobacco sticks for
sale in all provinces and territories.
Furthermore, this bill proposes to make permanent the current
40 per cent surtax on the profits of tobacco manufacturing.
On a related issue, as outlined in the February 1999 federal
budget, Bill C-24 contains measures to implement a reduction in
the annual exemption threshold for the tax on exported tobacco
The intent of this measure is to reduce the supply of
Canadian-made tobacco products in export markets that could
potentially be available to smugglers. The proposals contained in
this bill relating to the taxation of tobacco products reaffirm the
government's comprehensive commitment to reducing tobacco
consumption in Canada while maintaining vigilance in
combating the level of contraband.
An important component of Bill C-24 reflects the
government's responsiveness to the health and social needs of
Canadians. For example, the government recognizes that many
Canadians are providing care for family members, very often
elderly parents or a disabled child. Bill C-24 proposes to provide
a sales tax exemption for respite care. This measure exempts the
services provided for the care and supervision of individuals who
have limited capacity for self-supervision and self-care due to an
infirmity or disability. For those Canadians who are striving to
meet the growing demands of caring for family members with an
infirmity or disability, this proposal will enhance federal support.
Senator Prud'homme: It is six o'clock.
Senator Kolber: Is there a question somewhere? I did not
Senator Prud'homme: It is not me.
The Hon. the Speaker pro tempore: Honourable senators, it is
my duty to advise you that it is six o'clock.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, I should like the consent of honourable
senators to not see the clock for the completion of Senator
Kolber's speech. As well, there are two items after his that
I should like to deal with. If we can deal with them, it would be
a big help to those of us who wish to move the agenda of the
chamber forward. Accordingly, I ask for leave not to see
Hon. Noël A. Kinsella (Deputy Leader of the Opposition):
Honourable senators, I was in the midst of making copious notes
on Senator Kolber's speech. I certainly want to complete my note
taking; therefore, we agree.
The Hon. the Speaker pro tempore: Honourable senators, is it
agreed that I not see the clock?
Hon. Senators: Agreed.
Senator Prud'homme: Honourable senators, I did not want to
be unkind to Senator Kolber. I just wanted to indicate to him that
Her Honour was on her feet.
Senator Kolber: For those Canadians who are striving to
meet the growing demands of caring for family members with an
infirmity or disability, this proposal will enhance federal support.
With respect to individuals with disabilities, the government is
sensitive to the special needs of these Canadians and remains
committed to providing meaningful assistance. The government
has introduced numerous measures in past budgets to assist these
individuals. Bill C-24 builds on those initiatives.
The proposals contained in Bill C-24 extend sales tax relief to
the purchase of specially equipped motor vehicles for
transporting individuals with disabilities. The proposed sales tax
rebate will ensure that all individuals and organizations get tax
relief on the additional costs of purchasing vehicles that meet
their special needs.
Other measures in the area of health care contained in this bill
include the continuation of the Goods and Services Tax and
Harmonized Sales Tax exemption for speech therapy services.
Under the GST and the HST, the list of exempt health care
providers is made up of those that are regulated by the health
care profession in at least five provinces. The proposals
contained in this bill will allow the speech therapy profession
more time to meet the eligibility requirements for the provision
of tax-exempt services.
The bill also ensures that providers of osteopathic services are
exempt from sales tax. In addition, Bill C-24 corrects an inequity
with respect to providers of psychological services by ensuring
that the sales tax does not discriminate against duly qualified
I mentioned in my introduction that the government is
committed to a fair tax system for Canadians. Bill C-24 reflects
that commitment in a number of areas.
In regard to charities, the government recognizes the important
role played by charitable organizations in helping Canadians and
in enriching our communities. This bill addresses the special
circumstances faced by charities whose main purposes include
the provision of care, employment, employment training or
employment placement services for individuals with disabilities.
Specifically, this bill provides these charities the capacity to
compete on an equal footing when selling goods and services to
Bill C-24 also refines the rules for the streamlined accounting
method for charities. In addition, it implements the decision by
the Government of Newfoundland and Labrador to extend the
50 per cent rebate of the provincial portion of the Harmonized
Sales Tax, which is already available to charities in that province,
to certain public service bodies such as hospitals that are
The extended rebate would be available to those entities in
relation to their activities undertaken in their capacity as
charities. For example, a hospital authority in Newfoundland that
is a charity might also operate a nursing home. The proposed
amendment would entitle the hospital authority to a 15 per cent
rebate of the HST incurred on expenses related to the
A number of amendments contained in Bill C-24 will ensure
consistency and fairness in the application of the Goods and
Services Tax and Harmonized Sales Tax in a number of key
areas. For example, this bill contains amendments aimed at
clarifying the sales tax treatment of transactions between natural
resource producers and exploration companies. Amendments
such as these are aimed at clarifying and refining the application
of our sales tax system.
I should like to take a moment to point out that the
amendments in this proposed legislation were developed in
consultation with the tax and business communities. As I
mentioned earlier, this reflects the government's ongoing
commitment to make the tax system fairer, more efficient and
easier for businesses to comply with.
An illustration of the collaborative process between the federal
government and businesses is in the energy sector. This bill
proposes a number of changes to streamline the operation of the
Goods and Services Tax and the Harmonized Sales Tax in that
sector. For example, these proposed measures facilitate export
transactions that involve exchanges of oil and gas between
Canadian and foreign suppliers. The economy of today is
increasingly global in nature. The changes proposed in this bill
will help to ensure that Canadian businesses remain competitive
in the national marketplace.
With respect to other international commercial transactions,
this bill also proposes to make air navigation services provided to
carriers tax free in relation to international flights and to refine
the rules for exports of goods by common carriers.
In terms of the Visitors' Rebate Program, I should like to take
this opportunity to mention that the federal government is well
aware of the importance of the travel and tourism industry to
Canada's economy. The government has helped to promote
Canada as a tourist destination and to support the tourism
industry in the creation of employment. An integral part of the
federal government's support for the travel and tourism industry
in Canada is the Visitors' Rebate Program, whereby the
government provides rebates of the Goods and Services Tax and
Harmonized Sales Tax to non-residents on eligible goods
exported from Canada, short-term accommodation and certain
goods and services used in the course of a foreign convention.
As part of a review of the Visitors' Rebate Program,
consultations with the tourism industry indicated that the
program is generally viewed as an important tool in promoting
tourism, particularly the accommodation and convention
measures. As a result of the review, the 1998 budget contained
several proposals to improve the Visitors' Rebate Program.
Bill C-24 proposes a number of enhancements to the design
and delivery of the Visitors' Rebate Program to promote Canada
further as a destination for tourists and a place to hold
conventions, for example, by reducing the GST and HST costs
associated with providing conventions to non-residents.
On the subject of tourism, this bill also proposes changes
aimed at providing consistent tax treatment between tax-free
international transportation services and various separate charges
that relate to such transportation.
Another change will eliminate the requirement that payment
for air travel from the United States to Canada be tendered
outside Canada in order for the transportation service to be
I should like to take a moment to mention that the federal
government recognizes the importance of consulting with the
business community in improving the operation of our sales tax
system. In that regard, Bill C-24 contains a number of proposals
to improve the rules relating to certain business arrangements
and to ensure that the legislation accords with the policy intent.
For example, in the area of financial services, as well as
clarifying certain sales tax issues, Bill C-24 provides a more
level playing field in the retail debt sector by repealing bad debt
relief for closely related financing companies.
In response to industry concerns, this bill also proposes an
important measure that will correct an inequity with respect to
multi-employer pension plans.
The bill proposes that a rebate be provided to trusts governed
by such pension plans, which will place them on a comparable
footing with single-employer pension plans with respect to the
sales tax they bear. I want to assure honourable senators that the
government continues to work toward improving the
administration and enforcement of our sales tax system.
Bill C-24 amends several provisions in these areas to update
them relative to current administrative practices. Moreover, the
bill proposes to achieve greater harmonization of certain
administrative and enforcement provisions in the various tax and
duties statutes. This bill also contains proposals to improve the
efficiency and effectiveness of the assessment, appeals and
collection provisions overall.
With respect to split-run tax and tariffs, I mentioned earlier
that Bill C-24 contains measures relating to other specific levies
on certain products. In accordance with the 1997 decision of the
World Trade Organization, this bill contains the amendment that
repeals the provisions relating to the excise tax on split-run
editions of periodicals.
With respect to customs tariffs, the bill implements proposals
to increase certain duty and tax exemptions for persons returning
to Canada after a minimum period abroad. These proposals will
make it more convenient for travellers to clear Canada Customs.
This is just another example of the steps we have taken to
improve service for visitors and Canadians returning to Canada.
The government remains committed to enhancing aboriginal
self-government and has indicated its willingness to put into
effect taxation arrangements with First Nations interested in
exercising tax powers. In this context, through the Budget
Implementation Acts of 1997, 1998 and 1999, the government
introduced legislation enabling certain First Nations to impose
GST-like taxes on specific products, such as alcoholic beverages,
fuel and tobacco products.
This bill proposes technical amendments to the acts I just
mentioned to enhance the harmonization of First Nations sales
taxes with the GST and to ensure that the definitions contained in
these acts are consistent with definitions used in other
In conclusion, the measures contained in Bill C-24 that I have
outlined here today propose to refine, streamline and clarify the
application of our tax system. At the same time, this bill responds
to social issues that are important to Canadians. I therefore urge
honourable senators to support Bill C-24.
On motion of Senator Kinsella, for Senator Stratton,
Crimes Against Humanity and War Crimes
Second Reading—Debate Adjourned
Hon. Peter A. Stollery
moved the second reading of
Bill C-19, respecting genocide, crimes against humanity and war
crimes and to implement the Rome Statute of the International
Criminal Court, and to make consequential amendments to
He said: Honourable senators, I shall speak to second reading
of Bill C-19, the Crimes Against Humanity and War Crimes Act.
It is a great privilege for me to speak about the merits of this bill,
for it is one that has import not only to Canadians but also to
every individual of the global community.
Bill C-19 has two purposes. First, it will strengthen the
legislative foundation for criminal prosecutions in Canada of
genocide, crimes against humanity and war crimes; and, second,
it will implement in Canada the Rome Statute of the International
Criminal Court. This will allow Canada to join the other nations
of the world that have already ratified the Rome Statute, which
was adopted by delegates of the Rome Diplomatic Conference on
July 17, 1998. Once 60 countries have ratified the Rome Statute,
a permanent international criminal court will be created in the
Hague that will hold individuals who commit the most offensive
crimes accountable for their acts.
The establishment of the ICC will be a watershed moment in
the history of the world. War and violence have been constant
presences in our lives. The ICC will, unfortunately, not be able to
scourge the world of these evils, but it will, once established, be
a permanent reality that will watch over the international
community to protect those basic values common to all peoples.
It will also provide the international community with an
effective, non-coercive, non-military institutionalized peace
enforcement mechanism. The ICC will be an effective tool
available to the global community in its fight against tyranny
The brutalities of the 20th century have dictated that we find
appropriate means to counter the atrocities that have become all
too familiar to us. The 20th century has seen many instances of
genocide, of war crimes, and of crimes against humanity. We
have also seen this century new and unfortunate trends, such as
the targeting of civilian populations. Whereas once the casualties
of war were the combatants, it is now innocent civilians who
make up the majority of causalities in modern conflicts.
The ICC will provide humanity with more than a moral
imperative; it will provide humanity with a permanent institution,
the sole mandate of which will be to ensure that individuals who
commit the most reprehensible crimes known to humanity will
have to answer for their crimes. The international community has
in the past reacted with indifference or inaction in the face of
mass murder, rape and torture. The ICC will ensure that the
resulting climate of impunity will be replaced with a culture
Chivalry, the ideals of which have been modernized and
codified in international law, will henceforth be enforced by a
capable institution supported by the international community.
The ICC will ensure that individuals will not escape justice.
These individuals will instead answer to a court that will have the
jurisdiction, mandate, power and resources to investigate and
prosecute individuals who act contrary to the rules that the
international community has agreed upon through the
The permanence of the ICC provides the world with an
ever-present mechanism of justice that will have a deterrent
effect and assure that no individual henceforth will be able to feel
safe in committing genocide, war crimes or crimes
The provisions of the Rome Statute set a very high standard
for international justice. For instance, no individual, not even an
acting head of state or senior government official, will be able to
escape the jurisdiction of the ICC if there is sufficient evidence
that they committed one of the egregious crimes outlined in the
statute. This signifies the overwhelming and unprecedented
commitment to universal justice that nations will make when
they ratify the statute.
The provisions of the Rome Statute, however, succeed in
achieving this commitment to universal justice without infringing
on the sovereignty of nations, which has been a fundamental
principle of statehood since the 1648 Treaty of Westphalia. A
nation's sovereignty is protected through the principle of
complementarity. Complementarity provides that individual
countries will be responsible for the prosecution of individuals
charged with crimes of genocide, crimes against humanity, or
war crimes. It is only in those instances where a nation is
unwilling or unable to investigate or prosecute someone charged
with the most egregious crimes that the ICC will become
responsible for that case. In a perfect world, therefore, the ICC
would hear no cases; rather, it would serve as the institution that
vigilantly watches over the world and ensures that all countries
adhere to the highest standards of international law.
Our legislation, which has been heralded by human rights
NGOs as being model legislation, is in fact an example of the
domestic legislation that will henceforth be the norm of the
community of nations.
As we all know, honourable senators, we do not live in a world
that is even close to being perfect. I only have to mention the
recent tragedies in Rwanda and the former Yugoslavia and the
still-developing tragedy in Sierra Leone to demonstrate that our
world continues to serve witness to atrocities whose magnitude
of depravity is difficult to fully appreciate.
The ICC will, I trust, prosecute the individuals who not only
commit atrocities but those who profit from the commission of
these heinous acts as well. This will be accomplished through
provisions in the article that provide that individuals who profit
from or are in any way complicit in the commission of genocide,
war crimes or crimes against humanity would also be subject to
prosecution for their contribution to the commission of atrocities.
I have mentioned that the ICC will serve justice blindly. I think
it is important to reiterate this point and to emphasize that
everyone, regardless of rank, status or citizenship, will be subject
to the jurisdiction of the court. The ICC will be a neutral
court and will not be subject to any agenda or political
machinations. A number of checks and balances have been put in
place to ensure that the court's credibility and integrity are
Among the more important provisions is that the ICC's
prosecutor and its judiciary will meet the highest professional
standards and will be elected by an assembly of member states
parties. The ICC's judiciary will be composed of 18 judges, and
no nation may have more than one judge at any one time.
The ICC will also be completely independent of any higher
body, including the UN. This will ensure that the political
wrangling of the Security Council will not impair justice. The
independence of the ICC is one of the improvements over the
war crime tribunals that were established in response to the
travesties committed in the former Yugoslavia and Rwanda.
While these tribunals were a step forward in the search for
justice, they had certain weaknesses including substantial
start-up costs and delays. These ad hoc tribunals were also
reactive in nature and had no deterrent value. The ICC is a
marked improved over the ad hoc tribunals.
Bill C-19 is reflective of the most progressive and meaningful
advancement that has perhaps ever occurred in the quest for
universal peace at the international level. The quest for this
elusive and some would say Utopian peace has caused much ink
to be spilled and much rhetoric to be eulogized. Unfortunately,
the international community has always been unable to make its
idealistic aspirations a reality. The ICC, however, once
60 countries have ratified the Rome Statute, will become a reality
and it will serve the interests of those individuals who have
written, spoken and prayed that peace would one day be a reality
to all people. Canadians should be proud of our country's
commitment to peace that will be made once Canada ratifies the
Bill C-19 would ensure that Canada's ability to comply fully
with the provisions of the Rome Statute is met. It ensures that
consequential amendments are made to other acts. For example,
it would replace the current war crimes provisions in the
Criminal Code by creating new offences of genocide, crimes
against humanity, war crimes and breach of responsibility by
military commanders and civilian superiors.
New offences would also be created to protect the
administration of justice of the International Criminal Court as
well as the safety of judges, officials and witnesses. New
proceeds of crime offences and mechanisms to enforce the orders
of the ICC for the restraint and forfeiture of assets are created.
Money obtained would be paid into the Crimes Against
Humanity Fund, established by the proposed legislation, and may
be distributed to victims of offences under the proposed
legislation or to the ICC.
Bill C-19 includes offences to protect the integrity of the
processes of the court and to protect judges and officials of the
ICC as well as witnesses. In particular, it includes offences of
obstructing justice, obstructing officials, bribery of judges and
officials, perjury, fabricating or giving contradictory evidence,
and intimidation. Witnesses who have testified before the ICC
would be protected under the Criminal Code from retaliation
against them or their families.
Bill C-19 would also ensure that the possession and laundering
of proceeds from these new offences would also be offences.
This would ensure that proceeds for the worst criminal offences,
like genocide, crimes against humanity or war crimes located in
Canada could be restrained, seized or forfeited in much the same
way as proceeds from other criminal offences in Canada. The
proposed legislation and the creation of the ICC demonstrate that
Canadians and human kind are hopefully progressing.
Carl von Clausewitz, the great 19th century Prussian military
strategist, once remarked that "war is a continuation of politics
by other means." Clausewitz, however, lived in a time when
might was right, when the realpolitik was the norm in
Since that time, we have seen many developments in
international relations designed to bring peace to the world. We
have seen the development of international law, the adoption of
the Geneva Conventions, the creation and demise of the League
of Nations. We have also seen the creation of the UN, which has
given us, among other things, the Universal Declarations of
Human Rights, a document drafted by a Canadian,
All these initiatives have not led to peace. Despite these
institutions, laws and documents, violence continues to be
pervasive in our world. The ICC goes beyond principles. We
hope that it will be an institution that will not be subject to
political haggling. The Rome Statute is not a lofty document that
is unenforceable. The ICC is different. It recommends the
evolution of global civility and offers the world real hope that all
people will one day know the peace that we as Canadians
perhaps too often take for granted.
The ICC will help in the possibility that power as a means to
an end will, in the future, become obsolete. The ICC is
illustrative of the ability of nations to come together and develop
institutions dedicated and devoted to peace and justice.
I am proud of Canada's long-standing commitment to peace
and our contribution to ensuring that the ICC becomes a reality.
Bill C-19 is Parliament's contribution to ensuring the creation of
the ICC. Our ratification of the Rome Statute will be another
statement to the global community of Canada's commitment to
innovative solutions to our world's problems. Once Canada
ratifies the Rome Statute, we shall join the other 12 nations who
have already ratified the treaty.
I shall now take a moment to congratulate the Government of
Sierra Leone, which, this week in New York, announced that
they have domestically ratified the Rome Statute and that they
would be ratifying the statute very soon. This means that once
they deposit the instruments of ratification, they will become the
13th nation to ratify the statute.
This is a positive and important development for Sierra Leone
and its beleaguered people. Sierra Leone has been the focus of
substantial media coverage as of late and, unlike today's
announcement, the media coverage has focussed exclusively on
images that would offend any person. The images that have
become ubiquitous in Sierra Leone include those of countless
women and children walking the streets with no hands, young
girls nursing babies that are the result of rape committed by rebel
soldiers, and the stories of how the butchery that has been
ongoing in that country has been financed by the trade
The individuals who committed crimes against humanity in
Sierra Leone did so because they felt that they were above the
law. Because they had the guns, they felt powerful and thought
they could act with complete impunity. These individuals were
mistaken. The ICC will not allow these cowardly criminals to
escape justice. Instead, the ICC will be able to prosecute them
and to ensure that justice is served.
The climate of impunity that has existed and contributed to
countless tragedies will be replaced by an era of accountability.
Those people who felt safe hacking off the hands of children,
who felt it was their right to rape young girls and women, and
those corporations who felt that it was their prerogative to do
business with those who commit mass murder, rape and torture,
will learn that the international community will not stand for
their inhumane behaviour any longer.
In introducing Bill C-19, the crimes against humanity and war
crimes bill, I hope that I have adequately conveyed its
importance. This bill will ensure that Canada plays its part in
replacing the climate of impunity that has victimized humanity
with an era of accountability. It is important that we seriously
consider this bill because it represents Canada's commitment to
global peace and universal justice.
Honourable senators, I am pleased to support this bill at
Hon. Sheila Finestone: Honourable senators, the dawn of the
new millennium has brought with it great opportunity and great
challenge. The end of the Cold War destroyed the walls of
antagonism and mistrust that divided the world. Our ability to
build this understanding hinges not only on the prospect for
global peace in the new century, but also in our involvement in
deliberations on complex issues to pave the way and
adopt certain blueprints for our cooperation into the next century
and presents an important example, that is, the International
The ICC promises to provide the missing link in the
international justice system, remedying the situation where it was
easier to bring someone to justice for killing one person rather
than for 1,000.
At the beginning of the 21st century, there is a compelling
need to undertake a comprehensive review of the application of
the principles of international legitimacy with fairness and
justice. If we genuinely believe that justice is a basic element to
life, we must admit that the absence of justice leads to the total
breakdown of all the principles and values in the lives of people.
Bill C-19 identifies one of the main challenges facing
humanity and recommends ways to meet those challenges. As
national parliamentarians represent the people and act on their
behalf within their countries in international affairs and, more
than that, through our involvement in the process of ratification
of international legal instruments, we are actively participating in
the international diplomatic process. We surely recognize that
ratifying international treaties can have a long and lasting impact
on global politics and on the course of negotiations.
Honourable senators, we shall make the progress we need only
if people such as you and I, in addition to states, are involved.
Parliamentarians are uniquely positioned to contribute. As
representatives of the people and of civil society in general, we
can bridge the gap between values and laws. It falls to us, for
example, to ratify such essential international agreements as the
Rome Statute of the International Criminal Court, which gives us
power and duty in equal measure. The International Criminal
Court will presage a culture of accountability as an antidote to a
culture of impunity. Ultimately, progress at the international level
will depend to no small extent on how we address such issues
nationally through our Houses of Parliament.
The establishment of the International Criminal Court that will
bring to justice perpetrators of crimes against humanity has been
a priority of the Canadian government. Canada has been active in
the process leading up to the adoption of the Rome Statute.
A Canadian official chaired the preparatory conference,
Ambassador Kirsch of Sweden.
Senator Roche and Senator Andreychuk have been very active
on this file, as has Warren Allmand, who brought to us a great
deal of interest and enthusiasm for this approach. We, along with
the Inter-Parliamentary Union and Parliamentarians for Global
Action, held a very interesting open meeting in the Senate to hear
from Ambassador Kirsch. I am very pleased that this bill was
Honourable senators, Bill C-19, an act respecting genocide,
crimes against humanity and war crimes and to implement the
Rome Statute of the International Criminal Court, is before us at
a historic moment of remembrance and reminder, of witness and
warning, at this fiftieth anniversary of the codification by the
United Nations General Assembly in 1950 of the Nuremberg
principles, which are symbol and substance, source and
inspiration, of the revolution in international human rights law in
general and international humanitarian law in particular.
The ICC will have juridical authority to indict individuals
from any global killing field and, unlike the ad hoc character of
the Yugoslavian and Rwanda war crimes tribunals, the
jurisdiction of the ICC will not be chronologically or
It took the globalized horror of the killing fields of the
1990s — the horror of Bosnia, the agony of Rwanda, the
brutalized women and children of Sierra Leone and Sudan, the
emergence of the unthinkable, ethnic cleansing, and the
unspeakable, genocide, as paradigmatic forms of armed conflict
in the 1990s — to give the idea of an international criminal court
the moral compelability and sense of urgency that it warrants.
Honourable senators, Bill C-19 is designed to implement in
Canada the statute for an ICC, to provide a Canadian legislative
foundation for the prosecution of war criminals so as to ensure
that Canada will not become a haven for war criminals past or
present, and to serve as an international model for Nuremberg
On motion of Senator Kinsella, for Senator Andreychuk,
Report of Judicial Compensation and
Motion to Refer to the Legal and Constitutional Affairs
Hon. Dan Hays (Deputy Leader of the Government)
pursuant to notice of June 19, 2000, moved:
That the Report of the Judicial Compensation and
Benefits Commission, dated May 31, 2000, tabled in the
Senate on June 15, 2000, be referred to the Standing Senate
Committee on Legal and Constitutional Affairs, pursuant to
subsection 26(6.1) of the Judges Act.
Motion agreed to.
Hon. Dan Hays (Deputy Leader of the Government):
Honourable senators, it being later than our normal time of
adjournment on a Tuesday, I should like to ask the consent of
honourable senators to allow the remaining items on the Order
Paper and Notice Paper
to stand in their place.
The Hon. the Speaker pro tempore: Is it agreed,
Hon. Senators: Agreed.
Leave having been given to revert to Government Notices
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, June 21, 2000, at
That at 3:30 p.m. tomorrow, if the business of the Senate
has not been completed, the Speaker shall interrupt the
proceedings to adjourn the Senate;
That should a division be deferred until 5:30 p.m.
tomorrow, the Speaker shall interrupt the proceedings at
3:30 p.m. to suspend the sitting until 5:30 p.m. for the
taking of the deferred division; and
That all matters on the Orders of the Day and on the
Notice Paper, which have not been reached, shall retain their
Motion agreed to.
The Senate adjourned until Wednesday, June 21, 2000, at