Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 55
Tuesday, October 2, 2001
The Honourable Dan Hays, Speaker
Tuesday, October 2, 2001
The Senate met at 2:00 p.m., the Speaker in the Chair.
The Hon. the Speaker: Honourable senators, pursuant to rule 43(3) of
the Rules of the Senate of Canada, the Clerk of the Senate received earlier
today notice of a question of privilege from Senator Cools. In accordance with
rule 43(7), I will now recognize the Honourable Senator Cools.
Hon. Anne C. Cools: Honourable senators, pursuant to rule 43(7) of the
Rules of the Senate of Canada, I give oral notice that I will rise later
this day to address a question of privilege.
It is my intention to raise a question of privilege with respect to certain
actions and words in the Senate debate of Thursday, September 27, 2001, which,
as honourable senators will recall, was a debate on the question of privilege
regarding particular statements made by the Minister of Citizenship and
Immigration, Elinor Caplan.
Honourable senators, I will be asking the Speaker of the Senate to make a
prima facie ruling, and if he so does, I am prepared this day to make a
substantive motion for a debate on the subject matter.
The Hon. the Speaker: Pursuant to rule 43(8), consideration of whether
the circumstances constitute a question of privilege shall take place not later
than eight o'clock p.m. or immediately after the Senate has completed
consideration of the Orders of the Day for that sitting, whichever comes first.
I now continue with statements by senators.
Hon. Marisa Ferretti Barth: Honourable senators, the year 2001 has
been declared the International Year of Volunteers by the United Nations, a full
year, which is a clear sign of the measure of our appreciation of volunteers.
As I see it, volunteerism is an act without restrictions. Indeed, it is a
gift from the heart, a gift of oneself. It is surpassing oneself personally to
contribute to a cause, or causes that are important to us. Volunteering is first
and foremost an act of love.
There are 175,000 volunteer organizations in Canada and 7.5 million
volunteers. Did you know that volunteers devote more than 1 billion hours to
their fellow human beings and to their communities? This represents
approximately 578,000 full-time positions.
Volunteerism is a significant sector, a sector that is often highly visible.
Think of the brave first-aid workers who gave of their time during the September
Volunteers are indispensable to community organizations that meet the growing
needs of the community and institutions that are all too often overburdened.
Volunteers give of their time and energy in order to improve the welfare of
others in their community.
It is vitally important to recognize the invaluable contribution of all those
who work to improve their communities. Unfortunately, all too often their
contributions go unacknowledged. Let us not forget that volunteers are a silent
force in our society. We must learn to recognize the true value of their
I should like to offer my sincerest thanks to all volunteers for their
dedication and their contributions for a better world. I invite all those who
have yet to experience the joys of volunteering to do so. It will add a new
dimension to their lives and they will learn that you get back so much when you
Hon. J. Trevor Eyton: Honourable senators, earlier this year Canadian
amateur sports lost one of its most competent and passionate supporters. I am
speaking here of Carol Anne Letheren, who, at the time of her death, was Chief
Executive Officer of the Canadian Olympic Association.
Looking at her resumé, as I had occasion to do recently, I was struck by just
how much Carol Anne had done during her lifetime. She was what we call a mover
and a shaker; one of those people who make a difference in whatever they do.
The list of Carol Anne's accomplishments and activities is impressive. In her
youth, she was a student body president, an Ontario badminton champion, and
later a world-class gymnastics judge. In 1988, she was appointed Chef de Mission
for Canada's 1988 Olympic team. I should note that Carol Anne was the first
female Chef de Mission in the history of the Olympic games. She was also the
person who, during those same Olympics, had the task of telling Ben Johnson that
he had been disqualified and then had to ask him to return his gold medal.
In addition to sports, Carol Anne Letheren left her mark in the fields of
academia and business. She held bachelor's degrees in arts and physical
education, a master's degree in business administration, and an Honorary
Doctorate of Laws. For many years, she was a distinguished member of the
faculties at the Universities of Toronto and York. Later, she went into business
as senior partner and co-owner of a Toronto marketing company.
Sports was always Carol Anne's primary life interest. She was a member of the
International Olympic Committee, Vice-President of the Commission for the
International Olympic Academy and Olympic Education and a member of the
Coordinating Commission for the 2002 Winter Games in Salt Lake City. She also
sat on the Site Evaluation Commission for the 2004 Olympic games to be held in
Athens. All of this, in addition to being involved on numerous sports-related
boards and committees, holding various coaching and officiating positions and
receiving a host of awards, from Official of the Year to induction into the
University of Toronto Sports Hall of Fame.
At the time of her unfortunate death, the then President of the Canadian
Olympic Association, Bill Warren, characterized Carol Anne as the
personification of excellence, respect, fairness, teamwork, leadership and, most
important — especially for those who knew Carol Anne — fun. The association's
current president, Michael Chambers, echoes those sentiments.
Honourable senators, it can be fairly said that with the death of Carol Anne
Letheren, Canada has lost a truly remarkable citizen who, by her deeds,
continues as a glowing inspiration for us all, and especially young women.
Hon. Marjory LeBreton: Honourable senators, this past weekend I
participated in the national chapter leadership conference of MADD Canada. The
horrific events of September 11 in New York, Washington and Pennsylvania had
particular relevance to the attendees who, because of their own personal
experiences as victims, felt a particular bond with the totally innocent victims
of that great tragedy in the United States. Many told me that the shock of the
death of their loved ones came back in ways they had not expected. Within this
foreboding atmosphere, we were faced with the reality of dealing with what is
still Canada's number one tragedy: innocent people being killed by people who
drive while impaired.
Honourable senators, impaired driving remains the leading criminal cause of
death in Canada, claiming over three times as many lives per year as all other
forms of homicide combined. Canada lags far behind most comparable democratic
countries in reducing alcohol-related traffic deaths and injuries, even though
many have a far higher per capita rate of alcohol consumption. Those countries
have succeeded to a far greater extent in impelling their populations to refrain
from drinking and driving. Their laws are deterring impaired drivers and
protecting the public while ours deter police and prosecutors and often protect
impaired drivers from criminal sanctions.
Millions of Canadians continue to drink and drive. In the 1999 national
opinion poll on drinking and driving, 19.3 per cent of licensed drivers said
that they had recently driven within two hours of drinking. In the author's
words, when applied to the entire population of licensed drivers, it shows that
over 4 million Canadians admit to driving after drinking. Moreover, an estimated
2.3 million Canadians drove in the past year, when they themselves thought they
were over the legal limit. Thus, there are tens of thousand of impaired drivers
on Canadian roads each night, and very few ever come to police attention. It has
been estimated that only one in every 445 impaired driving trials in Canada
result in a criminal conviction. The prosecution of impaired driving cases has
become extremely challenging. We only have to read our newspapers every day to
know this. While holding the police and prosecutors to exacting standards of
proof, the courts have interpreted the law to unduly narrow the offences, and
recognized defences appear to lack any air of reality.
Figures from the Canadian Centre for Justice statistics indicate that,
depending on the offence, only 23 to 61 per cent of impaired driving charges
between 1994 and 1998 resulted in a guilty disposition. To make matters worse
those charged with the most serious offences are the least likely to be
convicted. While the conviction rate for driving with a blood alcohol
concentration above 0.08 was 61 per cent, the rate dropped to only 33 per cent
for impaired driving causing bodily harm and 23 per cent for driving causing
death. The government, as we all know — since we in the Senate were part of it —
amended the Criminal Code in 1999 and 2000. These amendments focused exclusively
on increasing penalties, but, unfortunately, we ignored proposals to lower the
Criminal Code blood alcohol levels to 0.05, to enhance police enforcement
powers, to clarify and redefine some offences and to rationalize sentencing.
Honourable senators, without substantive reform of the Criminal Code, the
annual toll of alcohol-related traffic deaths and injury will continue unabated.
Responsible Canadians will continue to be exposed to needless risks that are
unacceptable to most of our counterparts in the international community.
Consequently, MADD Canada, and I believe most of us, believe that the 1999 and
2000 amendments must be viewed as only the beginning of the process of reforming
federal impaired driving laws.
Hon. David Tkachuk: Honourable senators, last night, I watched the
Prime Minister on film clips on CTV news say that we will have to sacrifice some
of our sovereignty to achieve security. He was referring to the need to
harmonize our border security with that of the United States so that our mutual
border can be safely open for business and trade. The next film clip showed Joe
Clark asking questions in the House of Commons and trying vainly to understand
the new security committee announced by the Liberal government and chaired by
the only Liberal cabinet minister to speak cogently about the repercussions of
the September 11 act of war, Foreign Affairs Minister John Manley. The Prime
Minister dismissed Mr. Clark's questions with his usual, "The opposition is
trying to take advantage of the terrorists' actions for political gain." Both
these occasions made it clear to me why the Liberal government has been acting
in such a strange manner in the wake of what clearly was an act of war by
Honourable senators, I do not think the Prime Minister of our country
understands the consequences of what happened when four planes bound for points
west turned sharp east to wreak their havoc. Our weak response showed that we
have already suffered serious loss of our sovereignty. Our neglect of our
military and our Coast Guard and our rather insensitive reaction to the tragedy
was laid bare for the country and the world to see. I am not proud of this.
Strengthening our border security, clarifying our policy on refugees and
working with our neighbours to the south to keep out people who do not share our
values is the act of a nation that increases its sovereignty not, as the Prime
Minister said, decreases it. Not being safe, not feeling safe and not trusting
our institutions to protect us are signs of a nation losing its abilities to
govern itself. When citizens feel that way or think that way, they look
elsewhere for someone to provide the safety and trust. Canadians realize this
and, despite the many talking heads to the contrary, remain sympathetic to the
U.S. position calling for a war on terrorism and of using military power to
achieve the goal of winning that war. We are, in the main, allies, and we
understand that this act cannot be explained in a rational manner. This was an
act of terrorism and Canadians knew it five minutes after it happened. They did
not need time to issue a response. Their hearts and heads were in sync and our
government's was and is not.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I have the honour to table, in both official languages, a copy of the letter
from the Minister of Citizenship and Immigration to which I referred at the last
sitting of the Senate.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I have the honour to table the government response to the second
report of the Standing Joint Committee on Official Languages, entitled
"Broadcasting and Availability of the Debates and Proceedings of Parliament in
both Official Languages," as introduced in the Senate on May 2, 2001.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, with leave of the Senate, and notwithstanding rule 58(1)(h), I move:
That when the Senate adjourns today, it do stand adjourned until tomorrow,
Wednesday, October 3, at 1:30 p.m.
The Hon. the Speaker: Honourable senators, is leave granted?
Hon. Senators: Agreed.
Motion agreed to.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
we have had discussions with the leadership on the other side. The government is
prepared to introduce a bill relating to the procedure for Royal Assent. I am
ready to introduce the bill today if the Leader of the Opposition would be
inclined to seek the withdrawal of his bill. That would help us to avoid
confusion and maintain a coherent Order Paper.
The Hon. the Speaker: Honourable senators, I will call on Honourable
Senator Lynch-Staunton with a request for leave.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, I never thought I would be the unwitting co-author of a government
bill, but then, in this life, the unexpected can be more the expected.
I will resist any comments except to say that, with leave of the Senate and
notwithstanding rule 58(1)(f), I move, seconded by Senator Kelleher:
That the Standing Committee on Rules, Procedures and the Rights of
Parliament be discharged from considering Bill S-13, An Act respecting the
declaration of Royal Assent by the Governor General in the Queen's name to
bills passed by the Houses of Parliament; and
That the said Bill be withdrawn.
I hope the government leader will also agree that if I am dissatisfied with
the bill she tables, she will give me the same consideration and withdraw her
bill so I can reintroduce mine.
Senator Carstairs: Honourable senators, I must say at the outset that
Senator Lynch-Staunton has been so cooperative that I am sure he will get
anything he wants.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill withdrawn.
Hon. Sharon Carstairs (Leader of the Government) presented Bill S-34,
respecting Royal Assent to bills passed by the Houses of Parliament.
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Carstairs, bill placed on the Orders of the Day for
second reading two days hence.
Hon. Lorna Milne: Honourable senators, I have the honour to present
877 signatures from Canadians in the provinces of B.C., Alberta, Saskatchewan,
Manitoba, Ontario, Quebec, New Brunswick, Newfoundland and Nova Scotia who are
researching their ancestry, as well as signatures from 148 people from the
United States and 8 from Ireland who are researching their Canadians roots. A
total of 1,033 people are petitioning the following:
Your petitioners call upon Parliament to take whatever steps necessary to
retroactively amend the Confidentiality-Privacy clauses of the Statistics
Acts since 1906, to allow release to the Public after a reasonable period of
time of Post 1901 Census reports starting with the 1906 Census.
These signatures are in addition to the 10,677 I have presented in this
calendar year. I have now presented petitions with 11,710 signatures to this
Thirty-seventh Parliament and petitions with over 6,000 signatures to the
Thirty-sixth Parliament, all calling for immediate action on this very important
matter of Canadian history.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, I must get up and test the government leader's generous sentiments of
just a few minutes ago.
While testifying before the Social Affairs Committee yesterday, the assistant
deputy minister for policy from the Department of Citizenship and Immigration
indicated that proper implementation of Bill C-11, the immigration bill now
before the committee, will require regulations that are not expected to be in
final form before the spring of 2002 at the earliest. Will the minister not
agree that this removes any urgency which was invoked to force the committee to
compress its hearings into only four days when, under normal circumstances, a
bill of such importance — certainly an importance given by the government —
would require some four weeks to allow the proper, meticulous examination the
Social Affairs Committee gives to every piece of legislation? The committee is
being forced into an unseemly schedule to meet a deadline that is at least six
months away, by the admission of a government official herself. Will the
government release the committee of the obligation imposed upon it to hasten
hearings in such a manner that they be completed before the end of this week?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I thank the honourable senator for that question. I must say that I was
disturbed and somewhat shocked to read the newspaper accounts of the committee
hearing. I think all of us recognize that there was a certain amount of pressure
to get this bill through as quickly as possible. I spoke with the Minister of
Immigration this morning. I asked her why we are being asked to pass this bill
as quickly as we possibly can when it seems that it will not come into force and
effect until May. Some witnesses, I understand, even said July of 2002. The
response I received is the following: The regulations are presently being
drafted and I am assured they are being drafted with some speed.
However, when the bill is passed and receives Royal Assent, the regulations
will then need to go through the normal regulatory process; they will need to be
published in the Canada Gazette. In other words, we will need to reach
out to the stakeholders and ask those stakeholders if, in fact, the regulations
meet not only the letter of the law but the spirit of the law as they see it,
and that will take a number of months. The longer we delay the bill in this
chamber, the longer it will take for those regulations to go through the normal
regulatory process. If we delay the bill by a month, then the implementation of
the full bill will be delayed by an additional month. It is, therefore,
incumbent upon us to act as quickly as we can.
Senator Lynch-Staunton: Honourable senators, that tends to contradict
the testimony given yesterday by Ms Atkinson, the assistant deputy minister. She
Work is ongoing on the drafting of regulations.
Therefore, they do not need the bill to draft the regulations.
At the same time, we are also working on our implementation planning. We
hope to be able to have regulations ready for prepublication before the end of
the calendar year.
Therefore, our spending another month or another day on this bill will not
affect the timing of the process through which the regulations must go.
She then continued:
That will allow for a prepublication period and consultation, the tabling
of regulations in both Houses and for a consideration of those regulations
early in the new year.
Nothing we do here, such as allowing two to three weeks more of hearings on
this bill, will delay that part of the schedule.
The implementation planning continues ...
This timetable, given by the official responsible for it, would allow the
committee to give much more careful hearing to the witnesses. This afternoon, I
believe there are six or seven witnesses, if not more, who will be given a very
short period each, and perhaps some should be allowed twice or three times as
much time. I maintain that, given the testimony yesterday by the official
directly responsible for the regulations procedure, the committee should be
given all the time needed, and that that would not conflict with the schedule as
Senator Carstairs: Honourable senators, the individual ultimately
responsible for not only the bill but the regulations is the Minister of
Immigration. The minister will be appearing before the committee on Thursday
morning. Questions would best be put to her at that time as to the way in which
this piece of legislation, which I think is a valuable piece of legislation, can
be brought into full force and effect as quickly as possible.
Hon. John Lynch-Staunton (Leader of the Opposition): The minister has
indicated that she does not need the bill in order to implement the policy, so I
do not know how valuable her testimony will be in seeing that we follow proper
Since we will have much more time than was indicated only a few days ago,
will the government at least allow this bill, once out of the Social Affairs
Committee, to go to the Legal and Constitutional Affairs Committee, which is
where it should have gone originally? Yesterday, and I believe again this
morning, although I have not seen the testimony from this morning, much of the
testimony was based on questions relating to the Charter. These are matters with
which the Social Affairs, Science and Technology Committee is not as well
equipped to deal. However, the Legal and Constitutional Affairs Committee is.
Once out of the one committee, I think it would be more than appropriate to send
the bill to the Legal and Constitutional Affairs Committee in order to gain a
complete understanding of it and its ramifications on individuals in relation to
the Charter. Again, since we now have the time to do this, I hope the minister
will agree that that is the way in which we should proceed.
Hon. Sharon Carstairs (Leader of the Government): First, I do not
accept the position that we have more time. I have asked the honourable senators
on that committee to put that question before the Minister of Citizenship and
Immigration and let her lay out an exact timeline for them.
As to whether this bill needs to go to a second committee, honourable
senators, the Charter is not simply a matter for the Standing Senate Committee
on Legal and Constitutional Affairs; the Charter belongs to every single
Canadian, and that includes every single senator sitting in this chamber. I am
not a lawyer. However, I have strong views about the Charter. I believe that
there are members on the Standing Senate Committee on Social Affairs, Science
and Technology who have the expertise and knowledge to deal with Charter issues.
I do recognize that perhaps the greatest expert on the Charter is Senator
Beaudoin, and Senator Beaudoin can share his expertise by attending any
committee of the Senate when it is in session, as indeed can any senator.
Hon. Gérald-A. Beaudoin: Honourable senators, it is true that the
Constitution belongs to every citizen, as does the Charter, which is part of the
Constitution. However, the objective of the Standing Senate Committee on Legal
and Constitutional Affairs is to ask questions and to improve legislation, and
we normally refer to that committee bills that involve constitutional law.
I was at the meeting of the Social Affairs Committee this morning because a
delegation from the Canadian bar was appearing there. We spent two hours
discussing questions of legality and constitutionality. They raised three
sections of the Charter, section 7 and section 12, and section 15, and they
suggested six amendments. I thought I was in the Legal and Constitutional
Affairs Committee, because obviously we were dealing 100 per cent with
That is all I have to say for the moment. I am in favour of referring this
bill to the Standing Senate Committee on Legal and Constitutional Affairs. I
understand that the Leader of the Government has already answered my question.
Hon. A. Raynell Andreychuk: On a supplementary matter, I was not able
to attend the committee meeting this morning, but I certainly tried yesterday,
and I will continue to look at this whole question. Some fundamental issues that
are legal questions balance the rights and freedoms of individuals against
security issues and societal issues. Some of the questions embedded in that
bill, certainly, are not being answered because the witnesses called to this
point have been those individuals who either obviously knew very quickly how our
process works here and monitor us, or were looking at more philosophical public
This bill raises some deeply troubling questions about the Constitution,
about the Charter, and about interpretation, and I think only legal and
constitutional experts could answer these questions. There are two ways of
handling the situation: We could bring those experts before the Social Affairs
Committee for a proper analysis of the bill or, alternately, we could turn the
bill over to the Standing Senate Committee on Legal and Constitutional Affairs.
My preference, as is Senator Beaudoin's, would be that it go to the Legal and
Constitutional Affairs Committee because that committee has the collective
memory and expertise to deal efficiently with issues of constitutionality. The
time that they would take on such issues would be considerably shorter than that
spent in trying to bring other senators up to speed. I know from my own
experience with taking part in other committees that it takes me a while to get
to know the topics and to get to know the issues, even though I may have
previously had an interest in the area.
Therefore, since the time is being requested, I would want the Leader of the
Government's opinion on whether it would be more efficient to continue study of
this bill before the Social Affairs Committee or more expeditious to have those
tight legal questions answered by the Legal and Constitutional Affairs
Senator Carstairs: Honourable senators, the Standing Senate Committee
on Social Affairs, Science and Technology specifically lists immigration as one
of its mandates.
It was, therefore, perfectly rational that this bill went to the Social
Affairs, Science and Technology Committee. I did not draft the witness list. The
witness list was prepared by the steering committee of the Standing Senate
Committee on Social Affairs, Science and Technology, of which a member of the
opposition side is deputy chair. I would suggest that if additional witnesses
are required, then the steering committee of the Social Affairs Committee should
make that decision. That should not be my decision to make.
Senator Andreychuk: Honourable senators, I understand the leader to
say that those legal questions must be answered but should be answered within
the Social Affairs Committee. My only thought is that the leader is saying that
because this committee has immigration as one of its mandates, we cannot move
the study of the bill to another committee. However, we have often moved the
study of legislation due to various committee workloads and perspectives. I
understand why the bill went first to the Standing Senate Committee on Social
Affairs, Science and Technology — because the minister had characterized the
bill as public immigration policy. However, in the study — and this is why
witnesses were called on public policy issues — it has become apparent that the
real issue to be studied is not the public policy issue, but the legal
consequences of such public policy and what they mean. Therefore, the suggestion
is that the study of the bill be moved to the Standing Senate Committee on Legal
and Constitutional Affairs.
Senator Carstairs: Honourable senators, it is not only lawyers who
understand the law. I used to chair the Standing Senate Committee on Legal and
Constitutional Affairs, and I take great pride in the fact that I am not a
It is not essential to be a lawyer to deal with the law. It is essential,
however, that witnesses be heard on all aspects of this bill. That is exactly
why, as I understand, the steering committee decided that the Canadian Bar
Association should appear before this committee. That is exactly why the
Canadian Council of Refugees, which raised Charter issues, was asked to appear
before the committee. This committee has an extensive list of witnesses and is
doing an excellent job of examining this legislation. I look forward to the
committee's report to this chamber.
Senator Andreychuk: Honourable senators, the fact that the bill was
referred to the Standing Senate Committee on Legal and Constitutional Affairs is
not because committee members are lawyers; rather, there are legal issues. I
take great pride that our chair is not a lawyer and that our chair and other
committee members have become well versed on legal matters. My point of view has
nothing to do with putting the bill in the hands of lawyers. It has everything
to do with putting the bill in the hands of valuable senators who have gained
expertise and who may or may not be lawyers.
Honourable senators, I will not pursue this issue any further.
Senator Carstairs: Honourable senators, the bill is in committee and
is receiving a thorough review. All senators are welcome at all times to appear.
If they have questions, I urge them to raise them in the committee so they can
get answers from the appropriate personnel.
Hon. Roch Bolduc: Honourable senators, many people talk about the law,
but most of the time lawyers do a little better. They know the law a little
Senator Carstairs: With the greatest respect to Senator Bolduc, I
think it depends on whether we are talking about living or income.
Hon. J. Michael Forrestall: Honourable senators, the Secretary-
General of NATO has stated that they have seen the evidence gathered by the
United States in the aftermath of the September 11 terror attacks and that:
...the facts are clear and compelling. The information presented points
conclusively to al-Qaeda and the Taliban regime in Afghanistan.
The NATO Secretary-General has announced that NATO is invoking Article 5 of
the Washington treaty, which states that an attack on one member state is an
attack on all member states. Prime Minister Blair of the United Kingdom has said
that the Taliban's time to hand over Osama bin Laden and dismantle al- Qaeda is
up, and that the Taliban will be held responsible for their complicity and that
military action is inevitable.
Is Canada now at war? What action will the Government of Canada now take with
regard to al-Qaeda, the Taliban and the Taliban control of the state of
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
Senator Forrestall has raised this afternoon the briefing and meetings that took
place with the NATO Secretary-General this morning, in which he did indeed make
the statement that the United States has presented clear and compelling facts
regarding the role that Osama bin Laden, al-Qaeda and the Taliban have played in
the incident. The answer to his specific question "Is Canada now at war?" is
no. War can only be declared by an individual country, and war has not yet been
declared, to my understanding, by any country.
Senator Forrestall: Honourable senators, I would ask the minister to
give us a clear indication of Canada's position with respect to Article 5. Can
she tell the Senate and help clarify in the minds of Canadian citizens in what
position we now find ourselves? The United States has declared war and we are
obliged under that treaty article to support them. Can the Leader of the
Government in the Senate help us out in this dilemma?
Senator Carstairs: Honourable senators, I will begin by saying to
Senator Forrestall that I am not of his view that the United States has declared
war. The United States has indicated that it will be taking action. To my
knowledge, and I could be wrong, they have not made a formal declaration of war,
which, of course, is necessary for war to be, if you will, declared.
Canada supported the NATO statement originally on September 12. It has also
concurred with the sharing of the information that has been made available
today. We are now awaiting from our NATO partners, including the United States
of America, what their requests will be of us and, therefore, what will be our
Senator Forrestall: Honourable senators, I understand that the Leader
of the Government in the Senate is telling us that Canada, for the time being,
has no position with respect to what action we as a country may take with
respect to those who support bin Laden and that we are now waiting for the
United States to make a formal declaration. I believe I have heard President
Bush declare war a dozen times and he invoked Western justice a dozen times. I
have heard the comments that what happens to one nation happens to another
nation, and I find it strange that we do not seem to have a position but
continue to wait and see what will happen. Am I correct in drawing that
inference from what the minister has said?
Senator Carstairs: No, honourable senators, Senator Forrestall is not
correct. The United States has formal processes; we have formal processes. The
United States has, I would suggest, in the last several weeks moved away from
the war rhetoric. It is very true that in the first several days the word
"war" was used a great deal of the time. Now we hear it less and less from the
President of the United States, from the Secretary of State, and even from the
Secretary of Defence.
I want to make it perfectly clear to members of this chamber that Canada will
undertake its full obligations as a member of NATO and, therefore, what is
requested of us under Article 5 we will do.
Senator Forrestall: Honourable senators, I find that this is getting
to be a little absurd. I hope rational thought is being applied throughout this
Should the Prime Minister of Great Britain take up arms later today or
tomorrow, or in the next week, against the Taliban — and I am not speaking
hypothetically — would Canada construe that act as one requiring us to state a
clear and unequivocal position with respect to our support of the United States?
It seems to me that we are equivocating unnecessarily.
Senator Carstairs: Honourable senators, I do not think there is any
equivocation here. It is very clear that we do not know, other than Osama bin
Laden and his group of terrorists, just how broad the net is. Certainly, in my
view, it is not the Afghani people. I would be very reluctant to see us declare
war against the Afghani people, who have already suffered great tragedies with
regard to their human condition.
Whether we will in fact join in actions against a group of terrorists will be
determined when we are asked to do so by our NATO partners. I think all have
agreed that the leadership of this particular engagement should be the United
States, as she is the nation that has suffered the most grievous damage.
Hon. David Tkachuk: Honourable senators, I want to follow up on that
statement. If the act that was committed against the United States is seen by
NATO as an act against all of us, which means against Canada as a partner in
that organization, what position is our government putting forward as to what we
think should be done? Have we simply said, "Well, whatever the United States
wants?" Are we putting a position forward to NATO as to what should be done
following this act?
Senator Carstairs: Honourable senators, I thank the honourable senator
for using the word "attack," because that is the critical word here. In
Article 5, the resolution very clearly says that an attack against one shall be
considered to be an attack against all. These are all of our NATO partners. It
does not mention the word "war." It talks about an attack. I think that
strategically, together we are planning what best result we can achieve to rid
us of terrorist attacks. That is why so much of the leadership has been left in
the hands of the United States. That is exactly why, when our Prime Minister met
with the President of the United States, he offered our support and help, but he
clearly stated to the United States President that "We are looking to you to ask
what it is you would like us to do."
Senator Tkachuk: That is not what NATO countries are doing. France has
stated its position, whatever that position is. Prime Minister Blair has this
morning clearly stated his country's position. We have not yet stated our
position. Opposition parties in the other place are very frustrated because they
cannot determine Canada's position. I think we are becoming the same way here.
What position are we as a country putting forward as to what should be done
against this attack on one of our friends and allies, where over 6,000 people
were killed? Surely we must have a position as to what we would like to see
Senator Carstairs: Honourable senators, we have a very clear position.
Our clear position is that we are NATO partners. We accept the obligations under
Article 5, as do all NATO partners. We have stated clearly we will undertake all
obligations as a result of Article 5. I am not sure what else we should do at
this time in evolving our policy. Suffice it to say that Minister Manley has
been put in charge of a cabinet committee to develop a strategy, to develop
policies, and even to develop laws, if necessary, in order to meet not only this
terrorist threat but terrorist threats in the future. We are willing to fulfil
Prime Minister Blair was certainly rather hawkish today in terms of his
statements to the meeting of his political party. Perhaps it was the setting
that brought that out in him.
Hon. Donald H. Oliver: Honourable senators, in response to questions
earlier today, the honourable Leader of the Government in the Senate referred to
humanitarian aid. I should like to build on a set of questions posed to the
Leader over the last two weeks regarding the extent to which the non-
governmental community would be a beneficiary of funding allocated by our
federal government for disaster relief in Afghanistan.
I was heartened by the Leader of the Government's responses, which
demonstrate a good appreciation of the humanitarian needs of the Afghan
Following a meeting with the United Nations Secretary- General, Kofi Annan,
in New York, the Prime Minister announced that Canada's contribution to
humanitarian assistance in Afghanistan had been increased from $1 million to $5
million on September 29, 2001. As the government leader knows, we are all quite
pleased that the government has recognized its obligations to the world's
civilians. However, can the government leader explain in what way Parliament was
consulted in approving that increased spending? Considering that $4 million is a
considerable contribution to this worthy effort, and notwithstanding arguments
that funding for this initiative was already built into the February 2000
budget, should not the issue have first been raised in Parliament and not the
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
let me begin by saying that my briefing note says it was, in fact, an additional
$5 million, bringing the aid package to $6 million, and bringing the total aid
package to the Afghani people to $18 million for this fiscal year.
In addition, that is well within the budgetary provisions of CIDA, the
Canadian International Development Agency. CIDA has money to use at its
discretion to be spent in areas that it identifies in greatest need, and that is
where that particular budget allocation falls.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I have the honour to table a delayed answer to the question raised by
Senator Kinsella on May 17, 2001, concerning the Immigration Act.
(Response to question raised by Hon. Noël A. Kinsella on May 17, 2001)
The Immigration Act authorizes the Minister of Citizenship and Immigration,
at her sole discretion, to grant Minister's permits where she considers that
extenuating circumstances exist.
Both Senators and Members of Parliament, irrespective of political
affiliation, may make representations to the Minister of Citizenship and
Immigration concerning immigration and visitor visa files if they believe that
extenuating circumstances exist. There is no numerical limit to the number of
requests for Minister's Permits that a Senator or a Member of Parliament may
present to the Minister. Representations from Senators are treated in the same
fashion as those made by Members of Parliament.
The Minister of Citizenship and Immigration will examine and weigh the
information provided by a Senator or a Member of Parliament. The Minister will
then decide whether to exercise her discretion to grant a Minister's Permit.
The Minister of Citizenship and Immigration is accountable for the exercise
of her discretionary authority when granting Minister's Permits.
Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the
answer to Question No. 15 on the Order Paper by Senator Lynch-Staunton.
Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the
answer to Question No. 16 on the Order Paper by Senator Gauthier.
The Hon. the Speaker informed the Senate that the following message
had been received from the House of Commons:
Ordered,—That the Standing Joint Committees be composed of the Members
Library of Parliament
Members: Bélanger, Bennett, Bertrand, Catterall, Gagnon (Champlain), Hill
(Prince George-Peace River), Hill (Macleod), Hinton, Karygiannis, Lavigne,
Lill, Pickard, Plamondon, Saada, Stinson, Telegdi—(16)
Associate Members: Abbott, Ablonczy, Anders, Anderson (Cypress
Hills-Grasslands), Bachand (Richmond-Arthabaska), Bailey, Benoit, Borotsik,
Breitkreuz, Brison, Burton, Cadman, Casey, Casson, Chatters, Clark, Cummins,
Davies, Day, Doyle, Duncan, Elley, Epp, Fitzpatrick, Forseth, Gallant,
Goldring, Gouk, Grewal, Grey (Edmonton North), Hanger, Harris, Hearn, Herron,
Hilstrom, Jaffer, Johnston, Keddy, Kenney, Lunn, Lunney, Mackay
(Pictou-Antigonish-Guysborough), Manning, Mark, Martin (Esquimalt-Juan de
Fuca), Mayfield, McNally, Meredith, Merrifield, Mills (Red Deer), Moore,
Obhrai, Pallister, Pankiw, Penson, Peschisolido, Rajotte, Reid, Reynolds,
Ritz, Sauvageau, Schmidt, Skelton, Solberg, Sorenson, Spencer, Strahl,
Thompson (New Brunswick Southwest), Thompson (Wild Rose), Toews, Vellacott,
Wayne, White (Langley- Abbotsford), White (North Vancouver), Williams, Yelich
Members: Bélanger, Bellemare, Binet, Bulte, Drouin, Gagnon (Québec),
Godfrey, Godin, Goldring, Harris, Herron, Lavigne, McTeague, Reid, Sauvageau,
Associate Members: Abbott, Ablonczy, Anders, Anderson (Cypress
Hills-Grasslands), Bachand (Richmond-Arthabaska), Bailey, Benoit, Bergeron,
Borotsik, Breitkreuz, Brison, Burton, Cadman, Casey, Casson, Chatters, Clark,
Comartin, Cummins, Day, Doyle, Duncan, Elley, Epp, Fitzpatrick, Forseth,
Gallant, Gouk, Grewal, Grey (Edmonton North), Hanger, Hearn, Hill (Prince
George-Peace River), Hill (Macleod), Hilstrom, Hinton, Jaffer, Johnston,
Keddy, Kenney, Lunn, Lunney, MacKay (Pictou-Antigonish-Guysborough), Manning,
Marceau, Mark, Martin (Esquimalt-Juan de Fuca), Mayfield, McNally, Meredith,
Merrifield, Mills (Red Deer), Moore, Nystrom, Obhrai, Pallister, Pankiw,
Penson, Peschisolido, Plamondon, Rajotte, Reynolds, Ritz, Schmidt, Skelton,
Solberg, Sorenson, Spencer, Stinson, Strahl, Thompson (New Brunswick
Southwest), Thompson (Wild Rose), Toews, Tremblay (Rimouski- Neigette-et-la
Mitis), Vellacott, Wayne, White (Langley- Abbotsford), White (North
Vancouver), Williams, Yelich
Scrutiny of Regulations
Members: Barnes, Bonwick, Carignan, Comuzzi, Cummins, Gouk, Grewal,
Guimond, Knutson, Lanctôt, Lee, Macklin, Myers, Nystrom, Pankiw, Wappel, White
Associate Members: Abbott, Ablonczy, Anders, Anderson (Cypress
Hills-Grasslands), Bachand (Richmond-Arthabaska), Bailey, Bellehumeur, Benoit,
Borotsik, Breitkreuz, Brison, Burton, Cadman, Casey, Casson, Chatters, Clark,
Day, Doyle, Duncan, Elley, Epp, Fitzpatrick, Forseth, Gallant, Goldring, Grey
(Edmonton North), Hanger, Harris, Hearn, Herron, Hill (Prince George-Peace
River), Hill (Macleod), Hilstrom, Hinton, Jaffer, Johnston, Keddy, Kenney,
Lebel, Lunn, Lunney, MacKay (Pictou-Antigonish-Guysborough), Manning, Mark,
Martin (Esquimalt-Juan de Fuca), Mayfield, McNally, Meredith, Merrifield,
Mills (Red Deer), Moore, Obhrai, Pallister, Penson, Peschisolido, Rajotte,
Reid, Reynolds, Ritz, Schmidt, Skelton, Solberg, Sorenson, Spencer, Stinson,
Strahl, Thompson (New Brunswick Southwest), Thompson (Wild Rose), Toews,
Vellacott, Venne, Wayne, White (Langley-Abbotsford), Williams, Yelich
That a message be sent to the Senate to acquaint their Honours of the names
of the Members to serve on behalf of this House on the Standing Joint
WILLIAM C. CORBETT,
The Clerk of the House of Commons
The Hon. the Speaker: Honourable senators, on Thursday, September 27,
the Leader of the Opposition, Senator Lynch-Staunton, raised a question of
privilege with respect to Bill C-11, dealing with immigration and the protection
of refugees, that is now before the Senate, and certain remarks made recently by
the responsible minister, Elinor Caplan, a member of the other place. On
September 26, according to Senator Lynch-Staunton, the minister made comments to
a journalist that suggest that the minister was already implementing provisions
of the bill even though it is not yet law. This position, he said, seemed to
contradict earlier statements of the minister who had then claimed that her
department could do nothing until Bill C-11 was passed into law. The senator
found these more recent statements to be offensive. In his view, such remarks
demonstrated a contempt for Parliament and a breach of the privileges of all
senators as they anticipated passage of the bill by the Senate and Royal Assent.
As the Leader of the Opposition put it when he gave oral notice of his question
of privilege, "Ministers of the Crown cannot act without parliamentary
authority. They are not above the law."
The issue of the minister's statements to the media had already been the
focus of the Opposition Leader's question to the Leader of the Government,
Senator Carstairs, the day before, Wednesday, September 25. At that time,
Senator Lynch-Staunton had reserved the right to raise a question of privilege,
which he did on Thursday. Forewarned by what had happened on Wednesday, Senator
Carstairs contacted the minister and obtained from her a letter that was read
out at the outset of Question Period on Thursday, before the debate on the prima
facie merits of the question of privilege. The letter explained, according to
Senator Carstairs, that the media comments had not accurately reflected the
minister's wishes. The letter described that the minister was intensifying
security screening actions to keep out undesirable immigrants or refugees
already authorized under the current law. In closing, the minister also
regretted any confusion caused by the reports of her actions.
Debate on the prima facie merits of this question of privilege followed at
the end of the Orders of the Day. At that time, Senator Lynch-Staunton spelled
out the nature of his complaint against the Minister of Immigration and
Citizenship. In presenting his case, the senator was emphatic in declaring that
it was the public statements of the minister that constituted a contempt of
In reply to an explanation offered by the Leader of the Government, Senator
Lynch-Staunton dismissed it. He stated:
The question before His Honour is not whether the minister is acting under
parliamentary authority or not. The question is whether she said that she
would exercise some of the powers that would be granted to her if Bill C-11
Several other senators then participated in the debate. During the course of
her remarks, Senator Cools offered an analysis of the minister's statements to
the media and suggested that the minister be offered a proper opportunity to
explain what she meant. The senator urged the Senate not to rush to any judgment
on the matter. In her view, it appeared to be a "political problem."
Senator Nolin then spoke. He suggested that at this stage in the proceedings
the only real question to be determined was whether the minister, in light of
her conversation with a journalist, had breached the privileges of the Senate.
Citing the British parliamentary authority, Erskine May, Senator Taylor asked
me, as Speaker, to consider two questions: whether the Senate can assert
privilege when it involves the action of a member from the other place and
whether the Senate has a case of constructive contempt based on the comments
made by the minister.
By way of reply, Senator Rompkey then referred to a citation from
Beauchesne's, a Canadian parliamentary authority, asserting that a question of
privilege cannot be based on statements by a member made outside the House. This
seemed to prompt another intervention by Senator Carstairs who reiterated the
point raised by Senator Rompkey after noting again that, according to the
minister's letter, the actions of her department are legal under the current
This point was then challenged one more time by Senator Lynch-Staunton who
was supported by Senator Murray, who suggested that Beauchesne's might not be
entirely relevant to this case since the minister is not a member of this house.
Finally, Senator Andreychuk reminded the Senate that not so long ago a prima
facie question of privilege was admitted by the Speaker in a recent ruling based
on a newspaper account.
Following these contributions, I agreed to take the matter under advisement.
At that time, I expressed a desire to review the authorities that had been cited
in order to determine if there is a prima facie question of privilege. I have
now done this and I am prepared to rule on this question of privilege.
As I have been reminded by senators, and as I fully acknowledge, my role as
Speaker is limited. It is to find whether or not, in this case, there is a prima
facie question of privilege; that is to say, whether or not the matter appears
either to involve a breach of the privileges of the Senate, as a parliamentary
body, or to constitute a contempt against its authority.
Senator Lynch-Staunton brought his question of privilege to the attention of
the Senate under the provisions of rule 43 of the Rules of the Senate. In
order for the question of privilege under rule 43 to be accorded priority over
all other business, it must meet certain tests. There are four specific tests
listed in the rules. The first is that of earliest opportunity. The second is
that the matter must directly relate to the privileges of the Senate, its
committees or any senator. The third is that it must seek a genuine remedy
within the powers of the Senate for which no other parliamentary process would
be as satisfactory. The fourth, and the last, is that the question of privilege
must be raised to correct a grave and serious breach. It is my obligation, as
Speaker, to determine whether the alleged question of privilege satisfies these
First of all, I am satisfied that the alleged question of privilege was
raised at the earliest opportunity. Senator Lynch-Staunton indicated that he had
first seen recent statements of the minister last Wednesday, when he put some
questions about them to the Leader of the Government. At that time, he reserved
the right to raise this matter as a question of privilege since it had not been
possible to provide the necessary three hours' notice on Wednesday as required
under rule 43(3).
I find that the remaining three criteria that must be assessed to determine a
prima facie case are not quite as simple to evaluate. For example, the second
criterion under rule 43 requires that the matter must directly relate to the
privileges of the Senate. In other words, have the statements of the minister
impeded the ability of the Senate to deal with Bill C-11? No one has indicated
that it will not now receive a thorough study in committee as a result of the
minister's comments. For this reason, I do not accept the notion that Senator
Taylor raised with respect to "constructive contempt." No evidence was
presented that the minister's remarks to the media have obstructed the Senate in
the performance of its functions by diminishing the respect due to it. There has
been no substantial interference in our debate on Bill C-11.
As a related point, Senator Taylor also raised the question about the
authority of this house over the actions of a member of the other place.
According to Erskine May, "Since the two Houses are wholly independent of each
other, neither House can claim, much less exercise, any authority over a
Member...of the other." This seems to touch upon the question of whether or not
there is a real remedy that is within the authority of the Senate. While it is
an option for the Senate to express its objection about the behaviour of a
member of the other place given the appropriate circumstances or provocation, I
am not persuaded that the present case is sufficiently egregious to merit such a
step. This conclusion, of course, relates also to the fourth criterion — whether
the complaint involves a grave or serious breach. It is relevant to point out
that the Leader of the Government has read a letter from the minister stating
her position. While it did not amount to a direct apology, the letter explains
that the minister has no intentions of acting without the necessary
parliamentary authority. It also expresses regret for any confusion caused by
All of us are well acquainted with the common misunderstanding about the role
of Parliament in general and the functions of the Senate in particular. In the
end, it cannot do our parliamentary system any good to undermine, even if
inadvertently, its fundamental authority and its bicameral composition.
Hon. Ross Fitzpatrick moved the second reading of Bill S-33, to amend
the Carriage by Air Act.
He said: Honourable senators, it is my privilege to rise today to speak to
Bill S-33, a short but important bill to amend the Carriage by Air Act. This act
is Canada's enabling legislation to give lawful effect to a global regime of
common rules known as the Warsaw System, which limits carrier liability for the
injury or death of a passenger and the damage, loss or delay of baggage or cargo
during international air transportation.
The Warsaw System is comprised of the 1929 Warsaw Convention and its amending
instruments, namely, The Hague Protocol of 1955, the Guadalajara Supplementary
Convention of 1961 and the Montreal Protocol No. 4 of 1975. The last two were
considered when last amending this act in 1999.
Bill S-33 amends the act so that Canada can join other states, including the
United States and our other major trading partners, in a united attempt to
ratify the 1999 Montreal Convention to consolidate and modernize the Warsaw
Honourable senators, our consideration of this bill is also timely, given the
horrific events of September 11 carried out by terrorists through the perverted
use of commercial passenger aircraft. Thousands of lives were lost in those
attacks and countless more have been changed forever. I submit that it is now
important to do what we can to help bring about closure. This bill will help to
do just that.
Permitting Canada to ratify the Montreal Convention would move the world a
step closer to a new global regime for carrier liability that has the potential
to reduce litigation and expedite the settlement of claims. The Montreal
Convention preserves certain redeeming features of the Warsaw System, including,
for example, the unification of laws relating to the international carriage by
air, which has been and continues to be of vital importance to management of
international air transport. Without such unification, complex conflicts of law
could arise and the settlement of claims would be unpredictable, costly, time
consuming and possibly uninsurable. Jurisdictional conflicts could also arise,
which would further aggravate the settlement of claims.
Time and socio-economic developments have outdated the Warsaw System in other
ways. The Montreal Convention addresses these antiquities by introducing new
features, one of which will permit international passengers to choose their own
local system of law when making claims. This is an entitlement which is consumer
friendly. Another new feature will establish in law a two-tier system of carrier
liability, described as follows: In the first tier, the carrier will assume
absolute liability for claims on actual damages to a certain threshold; in the
second tier, the carrier reserves its entitlement to limited legal defences for
claims exceeding this threshold. Importantly, there is no limit on the value of
a claim for actual damages. The Montreal Convention will bring effect to a form
of unlimited, instead of limited, carrier liability to international passengers.
It is important to note that, since 1997, international airlines, including
Air Canada and our international charter operators, in recognition of the
outdated limitation on carrier liability, have voluntarily put into effect this
two-tiered regime while continuing to observe all other requirements of the
Warsaw System. Moreover, the Montreal Convention strongly complements policies
advanced by the Minister of Transport in the area of scheduled and charter
all-cargo international air services that are designed to promote those services
by Canadian carriers.
The Montreal Convention has been signed by 66 nations, including the United
States, as well as all of Canada's other major trading partners. In fact, 11 of
67 signatories have since ratified the Montreal Convention. A quorum of 30
nations must ratify the Montreal Convention before it can have international
force and effect. The Montreal Convention will continue to set out clear rules
regarding carrier's liability in situations where one carrier is operating for
The authority for Canada to adhere to the Montreal Convention is provided by
adding references to a new Schedule VI, which is to be annexed to the Carriage
by Air Act. The development of the Montreal Convention involved extensive
consultations in which the Canadian government, alongside Canadian industry,
assumed a key role. It has the support of the Canadian aviation industry as well
as all aviation-related organizations in Canada.
It is necessary, honourable senators, that we ensure that Canadian
travellers, Canadian carriers and Canadian shippers have the benefit of a modern
liability regime that reflects the reality of today's aviation industry.
Honourable senators, the amendments proposed to the Carriage by Air Act are
aimed at ensuring that Canada recognizes and adopts as law what will become the
globally recognized legal instrument dealing with international air carriage of
passengers and cargo.
On motion of Senator Stratton, debate adjourned.
Hon. Jean-Robert Gauthier moved the second reading of Bill S- 32, to
amend the Official Languages Act (fostering of English and French).
He said: Honourable senators, the wording of the bill amends the Official
Languages Act to clarify the scope of section 41 of that act in the manner most
apt to ensure the attainment of its object.
The concept of linguistic rights is closely related to that of the collective
rights of minorities. In Canada, referring language rights to the courts is a
relatively recent phenomenon. Since 1982, French and English have enjoyed the
same legal recognition — guaranteed under the Canadian Constitution — at the
federal level. Through this recognition, the Canadian Parliament wanted to
strengthen national unity by creating a legal balance between two linguistic
communities and thus ensure social peace.
The Canadian state would probably not have recognized language rights if it
had not previously recognized the principles of diversity and pluralism in its
vision of Canadian society. Indeed, multilinguistic arrangements within a state
must invariably include the recognition of collective rights.
Most language rights must be protected through legal guarantees. At the
federal level, the language rights structure is essentially based on two
legislative documents. They are the Constitution Act, 1982, and more
specifically sections 16 to 23, and the Official Languages Act, adopted for the
first time in 1969 and reviewed in 1988 in the context of the new constitutional
order resulting from 1982.
I agree that there are significant nuances and even differences of opinion
regarding the concepts of individual and collective rights.
In her presentation entitled "Democracy and Rights: a Canadian Perspective"
(January-February 2001), the Chief Justice of the Supreme Court of Canada, the
Right Honourable Beverly McLaughlin, said:
Collective rights are the cornerstone on which Canada was built. Without
the guarantees provided to groups and minorities, it is unlikely that peoples
as different as those of the Upper and Lower Canada would have united to form
In a recent case, the Attorney General of Canada argued that Part VII of the
Official Languages Act does not include an obligation for the federal government
to always take measures to promote Canada's francophone and anglophone
minorities, to support their development and to foster the full recognition of
the use of French and English in Canadian society.
I will tell you that I am not surprised by the position of the Attorney
General of Canada, because this is the position taken by all Ministers of
Justice I have known since the passage of the new law in 1988. It is a
minimalist interpretation the Department of Justice has held for 13 years. I
think it is high time it be changed.
Today, I received a reply to a question I asked the government last May about
this section. I was not surprised to read, at page 4, that:
Part VII of the Official Languages Act contains a commitment and not
legally enforceable obligations and thus does not provide legal recourse.
The current minister, the Honourable Anne McLellan, wrote to me in October
1999, confirming pretty much what I read in her response today. According to the
Petit Robert dictionary, "declaratory" means "establishing intent." The
Department of Justice's interpretation is minimalist, to say the least, and puts
the government on the track of good intentions, but in no way compromises its
position of minimal effort. Accordingly, we are marking time, and section 41
continues to be ambiguous.
I want to give this law some teeth. I would like section 41 to be clearly
enforceable. I want minorities to be protected by a watchdog, not a lap dog.
I could make a long presentation on the issues relating to the interpretation
of section 41. I am neither a lawyer nor a constitutional expert. I am simply a
senator and a former member of Parliament who has worked in this area for a long
time and who has an opinion on the issue. My opinion has not changed since the
beginning of the debate that started in 1988.
I sincerely believe that, with section 41, the government was pledging to
ensure the promotion, development and vitality of official languages
communities. In the dictionary Le Petit Robert, it is said that a
commitment is not an obligation. Again, I will tell you what the intention of
the legislator was in 1988 when this section was adopted.
Why am I in the Senate today with a bill to amend section 41 of the Official
Languages Act? Because I believe that the atmosphere is better. I think that the
government will have a better understanding. I think that it is possible today
to strengthen section 41 and to make it binding.
Honourable senators, linguistic groups are threatened by an insidious
assimilation process and they are slowly losing the battle. Francophone
communities outside Quebec have a serious problem. Financial support for
Ontario's francophone communities has dropped significantly in recent years.
The Department of Human Resources Development sent me a huge file on the
funding of francophone communities. I did not have time to read it in detail,
but I would say that financial support has been dropping constantly over the
past five or six years.
In Quebec, the anglophone presence in the public service, both federal and
provincial, is minimal and a cause for concern. Quebec anglophones feel
threatened, and their numbers are continually on the decrease. Some anglophone
Quebecers feel that their rights have been jeopardized, that they are being
deprived of them.
We must take action "in the Canadian manner," both in Quebec and everywhere
else in the country. We must bring things back up to speed. We have two official
languages and we must respect and promote them.
The Supreme Court of Canada has never brought down a decision on the scope of
section 41 of the Official Languages Act. I have tried to encourage it to do so,
and heaven knows the price I have paid. Until the present time, the Supreme
Court has not seen fit to listen to any arguments on the scope of section 41.
Because of the minimalist interpretation the Minister of Justice has given to
section 41, the federal government has not seen fit, since 1988, to
substantially reinforce the regime for application as set out in sections 42
through 45, despite favourable case law since 1996, with a broad and liberal
interpretation of language rights and having the Official Languages Act subject
to the same rules of interpretation under the Canadian Charter of Rights and
Freedoms, 1982. I refer to the decision handed down in Beaulac. This is
exactly what Bill S-32 proposes: subjecting the Official Languages Act to the
court decisions that have been handed down since 1988.
Under the terms of the Official Languages Act, the Minister of Canadian
Heritage has sole responsibility for coordinating interdepartmental activities
for the purpose of enforcing section 41, and has no coercive means to ensure
that its spirit and purpose are strictly enforced and implemented in all
government departments and agencies. Speak to officials. They pay no attention
to it! Section 41 has no teeth! Nothing, or almost nothing, is happening. This
is not right.
However, numerous annual reports by the Official Languages Commissioner —
which have furthermore been tabled in this chamber — have commented on the
government's overall lack of commitment to official languages communities.
Since March 2001, Minister Dion has been responsible for coordinating
interdepartmental activities. He told us in committee that he had no action plan
with clear and specific objectives to propose.
He told me that section 41, as interpreted by the Minister of Justice, was
the government's position. So I decided to do something about it. If that is how
things are, we will take a strong stand, initiate a debate and see where it
leads. I hope that this will be constructive and that section 41 of the act will
The main objectives of Bill S-32, the purpose of which is to give section 41
some teeth, are as follows: first, to clarify the federal government's
commitment to official language minorities; second, to force the federal
government to review its implementation system as provided for in Part VII of
the Official Languages Act, sections 42 to 45; and, third, in accordance with
the Beaulac ruling, to submit section 41 of the Official Languages Act to
the rules of interpretation of the Canadian Charter of Rights and Freedoms, as
defined by the Supreme Court of Canada. All this would afford better judicial
control, among other things.
As things now stand, Part VII is exempt from any legal recourse. Even the
Official Languages Commissioner may not go before the courts and say that the
federal government is not committing sufficient funds to encourage and foster
the development of minority official language communities.
For me, section 41 does not constitute any new rights that have been created,
but is more of a directive to the government in connection with its spending
powers to foster the development and promotion of minority official language
What was the desire of legislators when Bill C-72 was being studied in 1988?
I will review a few facts from that time, if I may.
On March 22, 1988, before the legislative committee of the House of Commons
mandated to examine Bill C-72 on official languages, the Honourable Ray
Hnatyshyn, then Minister of Justice and Attorney General of Canada, said the
This part of the bill (Part VII) is based on the Charter (par. 16(3))
relating to the principle of progression toward equality of status or use for
French and English, as recognized by the Supreme Court in a number of
On July 20, 1988, when he appeared before the Senate committee mandated with
examining the bill, the Honourable Lucien Bouchard, then Secretary of State for
Canada, said the following:
The importance the federal government attaches to the communities is
expressed most particularly in Part VII of Bill C-72, the application of which
is the responsibility of the Secretary of State. Clause 41 sets out the entire
extent of the government's intentions. It allocates to the federal government
the obligation to foster the development of language minorities, to support
their development, and to promote full recognition of the use of French and of
I purposely emphasized the word "obligation." This is not just wishful
thinking here; those are the words of a minister. This was back in 1988. Lucien
Bouchard also said:
This notion of the development of language minorities is being referred to
in a clause within a bill for the first time...That clause (41), and all the
others within this bill that support it, confers a legislative basis to this
objective we have set for ourselves to have full participation by minority
language groups in the life of our country.
In conclusion, it is high time for section 41 to be strengthened. It is
imperative to clarify the ambiguity in its wording, based on subsections 16(1)
and 16(2) of the Constitution Act, 1982, replacing the words "the Government of
Canada is committed to" by "the Government of Canada takes the necessary steps
to enhance the vitality of the English and French language minority communities
in Canada and to support and assist their development."
Canada's language minorities need parliamentarians to restore their
confidence in their country's future. Part VII of the Official Languages Act,
section 41 in particular, is excluded from any recourse to the courts. Why is
this the case in 2001? It is time for a change. The Parliament of Canada must
assume its obligations and responsibilities. I trust that this bill will be
Hon. Sheila Finestone: Honourable senators, I would address a few
remarks to the Honourable Senator Gauthier.
We all appreciate the work and effort that Senator Gauthier has put into
bringing before us the evolution of the Official Languages Act and, in
particular, Part VII of that act. As I listened to his presentation, I had a
sense of acute disappointment and also found myself wondering why, after
committees meet and undertakings are given, the results are as Senator Gauthier
has described them here today.
I was once the joint chair of the Standing Joint Committee on Official
Languages, along with the Speaker pro tempore. I recall clearly that the
then Treasury Board chair, the Honourable Marcel Massé, gave very particular
undertakings regarding Part VII and section 41. He had received some fine
reports from a series of excellent researchers. That research indicated a
forward move with the application of section 41. The Treasury Board had been
mandated with certain responsibilities.
Senator Gauthier gave us a very interesting chronology. He spoke about the
roles and responsibilities of the Minister of Canadian Heritage and of the
Minister of Intergovernmental Affairs, Stéphane Dion. The Treasury Board is
responsible for the administration of the public service and the business of
government, and for the individuals who work in the public sector. What happened
to the Treasury Board's interpretation of Part VII and sections 41 through 45?
That was well on its way two to three years ago, when we were looking at it,
with about five books' worth of studies.
Senator Gauthier: I thank the honourable senator for her question. It
gives me the occasion to recall certain other incidents. In 1976-77, Pierre
Trudeau, who was the Prime Minister at the time, asked Pierre Juneau to
coordinate the difficulties that we were having with the application of the new
Official Languages Act, which had been adopted in 1969. Seven or eight years
later, we were having difficulties with the application of the law in the public
service, in the private sector and with minority groups. Juneau did a good job.
Recently, when Mr. Dion was named as coordinator, I said, "Well, history
repeats itself. I hope he does a good job." We asked him, "Do you have a
plan?" He said, "No." We asked him, "Do you have clear objectives?" He
said, "Not yet." We asked him, "Do you have any money?" He said, "No." We
said, "Heritage, Human Resources and Justice have funds." He reminded me that
the Department of Justice is the senior department in terms of legal
interpretation. Treasury Board is there for public servants, but it does not
have the same power nor the same convincing definitions of what section 41
The answer I received today from the Department of Justice states that Part
VII of the Official Languages Act contains a commitment but no legally binding
obligations, and therefore cannot lead to legal remedies.
Senator Finestone: Smoke and mirrors.
Senator Gauthier: You and I have to accept that section 41 is a pious
offering. It is a commitment but it is not, in my view, enough. Justice says,
"You cannot go to court on that, and therefore we will interpret that as being
not strictly an executory but a declaratory article."
I know the honourable senator was chair of that committee. The committee
looked at section 41. In fact, we spent a year and a half looking at it. We had
all kinds of good advice. Nothing happened. I asked questions in the committee.
Nothing happened. What do I do? I come to the Senate and I say, "Perhaps I will
be able to trigger a debate here that will finally bring us to a conclusion of
some kind of executory character to section 41 to give it some oomph or some
teeth." If we do not get to that, I will go home and say, "Game over."
Hon. Lowell Murray: Honourable senators, I do not want to participate
in the debate right now. However, I would like to reserve my right to do so at
some later date.
I found the honourable senator's speech extremely interesting. The question I
would like to ask is whether the Deputy Leader of the Government would undertake
to have the government supply some honourable senator on that side with a
considered response on behalf of the government to the arguments that have been
put forward today by Senator Gauthier. In particular, I would like to see a
report from the government on the performance under section 7 of the Official
Languages Act since that section was proclaimed. I would like to see what the
government has to say about that.
The only question I had for my friend Senator Gauthier concerned his
statements to the effect that anglophone minorities in Quebec and francophone
minorities elsewhere are poorly represented in the federal public service. I
wonder how his amendment would improve their lot. It seems to me that if they
are poorly represented, it is because very specific provisions of the existing
act are not being respected and not being enforced. I hope my memory is not
playing tricks on me, but I am sure there are provisions of the Official
Languages Act respecting the equitable representation of both anglophones and
francophones in the federal public service. Perhaps the question we should be
asking is why these provisions are not being respected and enforced.
Senator Gauthier: I thank Senator Murray. Some years ago, he and I
co-chaired the Official Languages Committee and tabled a report — No. 5, I think
it was — which touched on the issue of equitable representation. Section 41 is
such a vague and contentious article of the law that it has literally no impact
on the public service of Canada and has little impact on the promotion of the
equality of English and French across this country. It has no guts to it. It
needs to be executory. It needs to be applied.
The provinces should be involved in this, because section 43 deals with the
provinces. The Constitution of Canada is for all Canadians. It binds the
government. It binds the Parliament of Canada. It also places obligations on
provincial authorities. In Quebec, we all know that the percentage of
English-speaking individuals in the public service of Quebec is minimal. We are
having a hard time in the federal public service. I am no expert on that, but I
know from my reading and from testimony I have heard that out west, for example,
it is a question of a decimal percentage of public servants who are
French-speaking. Bilingual positions are usually left to people who sometimes do
not have any knowledge of the second language. The position is designated
bilingual but the individual who is occupying the position does not have the
qualifications either to speak English or to speak French, and that is
unacceptable today, 30 years after the adoption of the Official Languages Act.
We must get our act together and tell public servants that, yes, Canada has a
population that has two official languages. I will be frank with you: I am
frustrated with this concept that I hear regularly that Canada is a bilingual
country. There is nothing like that in the Constitution. The word "bilingual"
does not appear in our Constitution. We have two official languages. That is a
different concept, and we must respect both official languages across the land.
I am trying to put the thing into context. We must get rid of some of these
myths and get on to the real floor where the action will be, and that is here in
the Parliament of Canada.
Senator Murray: I thank the honourable senator for his response.
However, I do not want to let the Deputy Leader of the Government off the hook.
Will he send forward a message to the government indicating that some of us
should like to hear a considered reply by an honourable senator on behalf of the
government to the arguments that have been made by Senator Gauthier and, in
particular, an historic assessment of the operation of Part VII since it was
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, that a question do now be put to Senator Robichaud?
Hon. Senators: Agreed.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, Senator Murray is well aware that the Deputy Leader of the Government
in the Senate may certainly not reply and give a commitment for the government.
However, I assure you that we will follow the debate closely. Questions will be
raised and certain senators from our side will rise to speak. We will see what
responses are given as we go along and we will try to enlighten honourable
senators as much as possible.
Hon. Jean Lapointe: Honourable senators, I wish to point out to
Senator Gauthier that, in my view, Bill S-32 is an important one and that I
admire his courage in coming back with this issue. I got to know the francophone
community in Northern Ontario and I think it needs more help. I wish to assure
Senator Gauthier of my complete support.
Hon. Joan Fraser: Honourable senators, like Senator Gauthier, I have
heard successive ministers and civil servants explaining that Part VII is not
executorial. However, I have never heard an explanation of why the government so
adamantly refuses to consider that it might be executorial. Does the honourable
senator have any indication why the government, over successive years, has taken
this position? Is it simply out of fiscal caution, or is it because the
government is afraid of federal-provincial hassles or perhaps of finding itself
constitutionally invading provincial jurisdiction? What on earth is the
reasoning of the government for a position that every member of a language
minority finds impossible to understand or justify?
Senator Gauthier: I thank the honourable senator for her question. It
touches a point that I have been trying to find answers to for the last 13
The minister responsible at that time told us that this created obligations
on the government. Ever since, the Department of Justice has told us that there
is no obligation, that it is all in our minds. Yet, I know. I was there, as was
Senator Murray. There was no political will to go ahead with the obligation.
They wanted it to be simply pious wishes.
I totally disagreed with that interpretation. I wrote to every minister I
could think of, and they responded that the Minister of Justice says that
section 41 is declaratory. This means that one cannot go to court on it and
cannot ask the judicial authorities what they think about it, even though since
1998 there have been a series of judgments of the Supreme Court saying exactly
what I am saying — that is, that the object of the law must be followed and
respected. God only knows why they do not do it. I do not know. Maybe we should
ask the minister when she comes to committee.
Hon. Eymard G. Corbin: Honourable senators, with leave of Senator
Gauthier, I would like to ask him a question. It is obvious that a number of
honourable senators will want to speak to Bill S- 32 in order to indicate their
support. I intend to do so myself eventually.
Has Senator Gauthier had the time to consider the following question: To
which committee will this bill be referred for study after second reading? Will
it be referred to the Standing Joint Committee of the Senate and the House of
Commons on Official Languages, to an already existing or as yet to be created
Senate committee, or to a Senate Committee of the Whole?
Senator Gauthier: Honourable senators, I have given this some thought.
I definitely do not want the bill referred to the Standing Joint Committee on
Official Languages. Two years ago, I asked that there be a Senate Committee on
Official Languages because I felt that the Standing Joint Committee on Official
Languages was ineffective. I have often said so in this chamber.
I hope that Bill S-32 will be referred to the Senate's Standing Committee on
Legal and Constitutional Affairs, where senators will have a chance to have a
serious discussion while, in the joint committee, party politics will prevail
and the various parties will not agree. I want an intellectual discussion to set
clear and specific objectives. We want a country that respects both official
languages and that recognizes that every citizen has the right to express
himself in English or in French when addressing a parliamentary institution.
On motion of Senator Comeau, debate adjourned.
The Senate proceeded to consideration of the second report of the Standing
Senate Committee on Defence and Security (budget- release of additional funds)
presented in the Senate on September 25, 2001.—(Honourable Senator Kenny).
Hon. Colin Kenny moved the adoption of the report.
He said: Honourable senators, I should like to take this occasion to comment
on both this report and the previous one by the Rules Committee. There was some
discussion in this place a week ago today, and I think it would be worthwhile if
I addressed some of the questions and put in context some of comments that were
One way to accomplish that is to run briefly through the sequence leading to
the origin of this committee, in order to bring us up to date and make sure that
all honourable senators are on the same page. There were some questions last
week about whether the committee had an order of reference, or budget or
authority to travel, and by running through the sequence I can address those
On June 22, 2000, the Standing Committee on Privileges, Standing Rules and
Orders studied the issue relating to new committees and issued a report
recommending that a committee on defence and security be established to deal
with matters relating to defence and security generally, including veterans
On February 20, 2001, a notice of motion to create a committee on defence and
security was given by the government, again, referring to a mandate of matters
relating to national defence and security generally, including veterans affairs.
On March 15, 2001, the Defence and Security Committee was created by this
chamber on a motion moved by Senator Robichaud. On May 29, there was a motion
regarding the order of reference for the name change. On May 31, the Defence and
Security Committee received an order of reference, which stated:
That the Standing Senate Committee on Defence and Security be authorized to
conduct an introductory survey of the major security and defence issues facing
Canada with a view to preparing a detailed work plan for future comprehensive
The committee chose such a reference because this is a new committee. This is
not a committee that has been around before; it does not have a corporate memory
as have so many other Senate committees.
Members of the committee recognized some issues that were of immediate
interest. Maritime helicopters was one issue, the National Missile Defence issue
was another. After a considerable amount of discussion, the committee members
concluded that it would better serve the Senate, and Canadians, if the committee
made an effort to learn as much as possible about the various topics relating to
the work of the committee. In other words, we came to the conclusion that we had
best do our homework first and start looking at issues afterwards.
The committee undertook to meet the key players in the various agencies to
which it related, it undertook to examine the important policies and the
legislation that empowered those organizations and it undertook to determine how
the different organizations worked or functioned together. The committee members
felt it was important to be seen to be doing that, and to be seen to be doing it
in the areas where these organizations were functioning. I will get into that in
more detail in a moment.
On May 31, a motion to change the name of the committee was referred to the
Rules Committee. On June 13, 2001, the Rules Committee examined the name change,
and it is worth going back to the minutes of that meeting to discuss them
briefly. This is June 13 and, at that time, I was asked to comment on the
organizations that related to the so-called mandate of the committee.
As an aside, honourable senators, I should point out that "mandate" is not
a Senate word. It does not appear in the Rules of the Senate. It is
however used in the other place. We tend to use "reference" as in reference
from the Senate. However, it is worthwhile pointing out that rule 86(1) goes on
to define in a general way the matters that should be referred to that
committee. Notwithstanding that, all honourable senators know the chamber has
the capacity to refer any matter to any committee when it so chooses, but there
is a general description of what constitutes the work of most committees.
At the Rules Committee meeting of Wednesday, June 13, when I was asked what
areas aside from the Department of Defence were included when someone talked
about security generally, I replied that it included the Communications Security
Establishment, the Defence Science Advisory Board, the defence department
ombudsman, the Reserves, cadets, benevolent funds and, of course, veterans
affairs, which are mentioned in the motion establishing the committee. Also
included was the Solicitor General, only as it related to the National Security
Directorate; and the RCMP, as it related to national security issues and the
protection of the state; the Canada Customs and Revenue Agency, only as it
related to secure borders and people penetrating the borders, and the
relationship customs and immigration has with police and sometimes the
Department of Defence. It was in that context that those other departments were
related. The work of the committee really related to the defence of the country.
Honourable senators, if I can go on with the sequence, on June 20, the Rules
Committee examined the name change again. At that time it concluded it would
report to the Senate that it was appropriate to change the name. Honourable
senators have the report, which was tabled on behalf of Senator Austin by
Senator Stratton on September 19.
The chamber debated the report on September 25, and during that time a series
of questions arose. I should like to try to deal with them individually. Senator
Murray raised the point that his copy of the Rules of the Senate had no mandate
set out for the committee. That is understandable because the last reprint of
the Rules of the Senate was in February 2001 and, of course, the committee has
been established since that time. That would explain the absence of the
committee in the listing.
The next question was a question that I believe is perhaps more fundamental
and it had to do with whether this committee interfered with the mandate of
other standing committees. I have discussed the issue with a variety of
colleagues in the Senate. I have been in touch with all of the chairs of
committees that might in any way overlap with this committee. I believe that
coordination and cooperation between committees is of considerable importance.
As everyone in the chamber knows, defence issues have been removed from the
mandate of the Standing Senate Committee on Foreign Affairs and placed with the
Defence Committee. As a result, I had a discussion with Senator Stollery. We
have also discussed the desirability of ensuring that we cooperate and
communicate on the work of the committee to endeavour to minimize or eliminate
duplication. I did not talk to the Chair of the Standing Senate Committee on
National Finance, who is here in the chamber, but I will comment on his
I spoke to Senator Bacon regarding the Standing Senate Committee on Transport
and Communications. We had a discussion of the work that the committee is
undertaking as it relates to ports and ports security. When I comment further on
the budget in a moment, I will point that out in terms of whom we are meeting
and whom we are seeing.
I have had communications with Senator Milne. I have spoken to her twice. In
fact, she came back to me as recently as today commenting on an issue that
related to her committee. She does not see any conflict at this time. We
undertook to continue to talk about the matter.
Interestingly enough, the Standing Senate Committee on Banking, Trade and
Commerce is responsible for customs and excise. I have been in touch with
Senator Kolber. His interests in customs and excise has to do with how high
taxes are and how often they are imposed. He has indicated that he does not see
any conflict with us being concerned about customs officers being the first line
of defence when people are coming into the country. They are the first people
who are doing the interviews. He does not foresee the Banking, Trade and
Commerce Committee examining that question within its mandate.
Finally, I wish to refer to the Standing Senate Committee on Social Affairs,
Science and Technology. I should note for the benefit of honourable senators
that responsibility for the Veterans Affairs Committee has been transferred from
the Social Affairs, Science and Technology Committee to the Defence and Security
Committee by way of motion. The other area of possible overlap is immigration.
Our interests have nothing to do with the size of immigration, family
reunification or issues like that. They have to do with questions that come up
in relation to terrorists who might immigrate here, and whether the system is
secure and safe.
I also asked the Library of Parliament to go back to the second session of
the 34th Parliament, which dates back to April 3, 1989, to review all the
committee work that might in any way conflict with the mandate that the
committee we are discussing has. Their examination appears to be thorough. They
noted that in the first session of the 37th Parliament, the National Finance
Committee took a look at the Canada Customs and Revenue Agency. They noted that
the Foreign Affairs Committee took a look at the changing mandate of NATO in the
second session of the 36th Parliament. In the first session, they also noted
that the National Finance Committee looked at Canada's emergency and disaster
Then there was Senator Kelly's special committees which had a fairly
significant overlap with the work of this committee. In fairness, he was looking
at terrorism, and that inevitably relates to this situation. However, that was a
special committee which no longer functions.
The Standing Senate Committee on Foreign Affairs in that Parliament also had
a reference to look at the changing mandate of NATO, as well as Bill S-22, an
act authorizing the United States to preclear travellers and goods into Canada
with Revenue Canada. They also undertook a study of the growing importance of
the Asia-Pacific region, which included the Department of National Defence. The
Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-18
to amend the Customs Act.
In the 34th Parliament, there was a report on matters relating to national
security by the Standing Senate Committee on Foreign Affairs. The final
reference was to the National Finance Committee in the second session of the
34th Parliament, which looked at the Supplementary Estimates of the Department
of National Defence.
That takes us back a little over a decade in terms of what work might have
come close to what the Senate has decided will be the mandate in a general
The Hon. the Speaker: I regret to advise Senator Kenny that his
allotted time has expired.
Senator Kenny: Honourable senators, might I have leave to continue?
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, could Senator Kenny indicate how much time he needs to finish his
The Hon. the Speaker: After I put the question as to leave, there was
a request for an explanation.
Senator Kenny: Honourable senators, I will be a further five to ten
minutes at the maximum.
The Hon. the Speaker: Honourable senators, is leave granted?
Senator Robichaud: Honourable senators, let us say seven minutes,
which is between five and ten.
The Hon. the Speaker: We need to be more precise, Senator Robichaud.
Is it five or ten?
Senator Robichaud: I said seven.
Senator Kenny: I will take seven, honourable senators.
The next question relates to a comment made by Senator Murray. He said,
"However, I saw in the Halifax press only a couple of weeks ago that this
committee was expected to travel to Halifax to commence a study on national
security matters consequent upon the events of September 11, 2001 in New York."
That simply is not the case. I have before me all of the press clippings that we
have been able to collect through our collection organizations. They are
accurate. I also have a copy of the press release that we issued in advance of
the trip. As well, I have a copy of the notice of cancellation of the trip.
I might add that all of the press coverage has words to the effect that I
express the hope that the visit could be rescheduled sometime in the near future
when the department had less pressing concerns to deal with. That was in both
the French and English coverage of it. I would be happy to make this coverage
available to any interested senator. We have done an exhaustive search. I can
assure honourable senators that there was no press release or report that we can
find anywhere suggesting that we were undertaking a study of the events of
There were other questions that came forward in relation to the terms of
reference. I have already cited the reference that we have. There were questions
about whether we had authority to travel, which we did when the committee
received its budget. That took place on May 28. The budget was reviewed by the
Defence and Security Committee on June 5. It was examined by the Subcommittee on
Budgets of the Internal Economy Committee. On June 7, it was approved by the
entire Internal Economy Committee. On June 7, it was also reported to the
chamber. It included the powers to travel, together with the first tranche of
the budget. The first report was approved and adopted on June 11. The second
report is before honourable senators now, and that is what I am speaking to now.
I should like to speak briefly to the value of travelling. If I point out
what we learned on our trip to Halifax, honourable senators will get a better
sense of what the committee is about. The program reflects quite well not only
how we are trying to go about our work but why it is important to travel. The
first event we had was a briefing on Maritime Forces Atlantic by Admiral
MacLean. It included an update on the fleet status, the command structure, the
deployment strength, and underwater intelligence-sharing. We also had a briefing
on sea-to-shore ratio, drug-alcohol abuse, family violence, support mechanisms
for families, women at sea and women in submarines. We then had a briefing from
Brigadier General Mitchell on land forces in the Atlantic region and a briefing
on the quality of life issues as they affected land forces.
We then visited the frigate HMCS Toronto. Our first event on the
frigate was to have lunch with other ranks. The committee was to break up into
groups with one or two of the junior ranks and lunch with them in their mess to
hear about their concerns directly.
There was then a visit to HMCS Summerside, a marine coastal defence
vessel. Our concern there was the reserves and how they were working in the
navy. We had a tour of the fleet maintenance facility and then visited HMCS
Victoria, a new submarine, had a tour of the dockyard and then conducted
informal discussions into the evening with senior officers and senior enlisted
The next day we were going to the naval forces operation school where we were
to look at the NAV trainer and the operational refresher team. We were then to
go to the rescue centre and then on to Shearwater, where we were to have lunch
with other ranks, followed by a Sea King familiarization flight. We were then to
have a static tour of the Aurora with the squadron, and visit with the squadron
The next morning, we were meeting with Chief Superintendent Atkins of the
RCMP; Chief David MacKinnon of the Halifax police; and Mr. John Feagan, Director
of Intelligence and Contraband, Atlantic Region, Canada Customs and Revenue
Agency, for a briefing on port security. We were to visit the security wing of
the port and the police office and look at information maps, charts, the
warehouse and the container dock.
That afternoon, we were meeting with retired admiral Murray and his staff on
Veterans Affairs to get a briefing on their department, the clientele, the
health care for traditional veterans, the elderly, health care for emerging
Canadian Forces veterans, First Nations veterans and commemoration issues.
We were then going to Gagetown to look at the combat training centre, to
visit the infantry school and the artillery school, to have a briefing on
quality of life issues, to have lunch with junior non- commissioned officers and
to have a discussion with two RCR soldiers who have recently returned from
Ethiopia and Eritrea. We were then to look at the new light armoured vehicles.
We were to finish our visit by looking at the new Griffin helicopters that have
been supplied to our Armed Forces.
Honourable senators, that recitation has taken me longer to go through than
most of you want but it accurately reflects both the work and the interest that
the committee has. I would be happy to address any further issues that might
Hon. Lowell Murray: Honourable senators, I should like to intervene at
this point. I have some concerns about this matter. I want to voice them and
then ask you to take them into consideration before we proceed much further.
This is the place to voice those concerns. It is in this chamber, in the
Senate as a whole, that we create committees. This is the body that defines the
role of the various committees. This is the body that grants them a budget to
operate. If I have any reproach to offer, it is to ourselves here in the Senate
because I believe that we have let this matter get somewhat out of hand,
beginning with the creation of the committee.
The honourable senator has put something of a chronology on the record. I
thank him for that. I will have to refer to it again if only because I do not
draw the same conclusions from those facts as he does. It was on March 15 that
we created the Defence and Security Committee. We did so by adding a new
subsection, rule 86(1)(r). As the chairman has pointed out, we simply created a
Standing Senate Committee on Defence and Security composed of nine members, four
of whom shall constitute a quorum, to which may be referred, as the Senate may
decide, bills, messages, petitions, inquiries, papers and other matters relating
to national defence and security generally, including veterans affairs.
I think honourable senators will appreciate that that statement of the role
of the committee — I call it a mandate — is rather sparse, compared to the
provisions that are found elsewhere in our rules with regard to committees. You
have only to look at rule 86(1)(h) concerning the Foreign Affairs Committee; or
rule 86(1)(j) for the Standing Senate Committee on Transport and Communication;
or rule 86(1)(k) on the Legal and Constitutional Affairs Committee; or rule
86(1)(l) on the Banking, Trade and Commerce Committee, to see that in all these
cases, and in the case of social affairs, agriculture, and so on, there is a
lengthy and detailed list of matters — much more detailed and much more precise
than the rather sparse and general description of the role of this committee.
Perhaps that is why we may be getting into some difficulty with this committee.
As the chairman has pointed out, on May 31 there were four motions before us
in the name of the chairman concerning this committee. Two of those motions
might be considered rather routine, one having to do with the engagement of
staff and the other with regard to possible electronic coverage of its
proceedings. There were two other motions, however, to which I want to refer.
One was the motion to change the name of the committee. At that point, the
chairman of the committee, Senator Kenny, told the Senate, as reported on May
31, 2001, that:
The purpose of the change is to more accurately reflect the work and
mandate of the committee.
There is that word "mandate" again. Senator Kenny continued by saying that
the committee would:
— study issues such as terrorism further to the work that was carried on by
our former colleague, Senator Kelly. The committee's mandate also includes
matters relating to police services and emergency preparedness. It was the
feeling of the committee that this descriptor better fits the work the
committee is doing."
That motion to change the name of the committee went over to the Rules
Committee and is back here now. The debate has been adjourned in the name of
Senator Stratton. I simply make the point here that the statement I have just
read from Senator Kenny, referring twice — at least twice — to the "mandate"
of the committee and outlining issues that are included in the "mandate" of
the committee, is considerably more expansive than the new rule 86(1)(r).
I fast forward now, honourable senators, to a meeting of the Rules Committee
on June 13. This is where I woke up to this issue. On June 13, toward the end of
the day, we were considering this very motion to change the name. Senator Kenny
The committee felt that the suggested name would more accurately reflect
the work of the committee. We feel that the ambit of national security more
accurately describes the work that the committee envisioned, and that we
assume this committee —
— and by that he meant the Rules Committee —
— envisioned when it put forward its initial report.
A little later, he said:
We anticipate connections with the following organizations: the
Communications Security Establishment; the Defence Science Advisory Board; the
Department of Defence Ombudsman; reserves; cadets; benevolent funds; Veterans
Affairs; the Solicitor General, as it related to policing; the National
Security Directorate; the Department of the Solicitor General; the RCMP, as it
related to national security issues and the protection of the state; Canada
Customs and Revenue Agency as it related to secure borders and people
penetrating the borders, and the relationship that customs and immigration has
with the police and, sometimes, with the Department of Defence.
Again, that is even more expansive than the statement that my friend had made
here on May 31.
I identified four or five other committees whose mandates — dare I use the
word — would be affected by my friend's interpretation of the work of his
I am glad to hear that he has been in touch with the chairmen of these
committees. That is a start. They will speak for themselves, no doubt. I will be
interested to hear what they have to say. However, I hope I can say, without
being offensive, that committees are not fiefdoms belonging to their chairmen.
It is the Senate as a whole that decides on the role of a particular committee.
It is up to the Senate to decide whether, for example, parts of Solicitor
General issues, which ordinarily would be under the Standing Senate Committee on
Legal and Constitutional Affairs, or parts of Customs and Excise that would be
somewhere else, or Immigration issues that would be somewhere else, ought to be
taken away from those committees and referred to a new committee. If that is to
be done, then let us do it, but let us do it after proper consideration and
debate in this place.
The other motion that Senator Kenny had before us on May 31 was the one to
which he referred a few minutes ago to authorize the committee to conduct an
introductory survey of major security and defence issues facing our country,
with a view to preparing a detailed work plan for future comprehensive studies.
So far, so good, I guess, although I do find it extraordinary that we should
have created a new committee with skeletal terms of reference and then told the
committee to, as my friend said, do its homework as to what the role of the
committee is to be. It seems to me that we have somehow reversed the proper
process. If we want a new committee, we should decide what the role of the
committee will be, incorporate it into our rules, give them a budget and let
them go ahead. We seem to be going about it in somewhat reverse order, I
An introductory survey, in any case, is an extraordinary way to go about it.
The proposal is that the committee will do some homework and come back to us
with a proposal on its program. That is fine as far as it goes.
Senator Forrestall, when he spoke here on September 25, said, at page 1296 of
the Debates of the Senate:
In the beginning, the essential consideration with respect to the use of
the term "security" was security as it pertained directly or, on occasion,
indirectly to the activities of the Canadian Armed Forces and the requirements
of Canada's Armed Forces by the Government of Canada and as dictated by other
requirements, such as aid and the direction of government itself. When we have
completed our first round, which is a familiarization exercise as much as
anything else, the question of mandate in future would then be far better
discussed than it would be at this point in time.
I would agree with Senator Forrestall as to the interpretation of that motion
on the introductory survey, but I say that it is considerably less expansive
than the view that Senator Kenny took here in the Senate in June before the
Rules Committee and, indeed, today as to what his committee will be about.
Finally, I come to today's motion. Someone will correct me if I am wrong
about this, but I see that it says in the second report:
On June 11, 2001, the Senate approved the release of $100,500 to the
Committee. The report of the Standing Committee on Internal Economy, Budgets
and Administration recommending the release of additional funds is appended to
Then we have Appendix (B) to the report asking for the release of additional
funds to a total amount of $95,500. Am I reading that correctly? Is the $95,500
in addition to the $100,500 voted, or is the $95,500 part of that $100,500? Does
Senator Kenny: It is in addition.
Senator Murray: Honourable senators, let us look at this. We have
spent $196,000 so that the committee can figure out what to do. I do not think
this is a sensible way to proceed. I think this is excessive, senators. I really
do. This is $196,000 for the committee to, as my honourable friend said, do its
homework. I was as impressed as I am sure all senators were with the lengthy and
varied program that they were proposing to conduct on their trip to Halifax, but
for a committee that says it does not have the sufficient mandate it requires to
do its homework, this is going quite far afield. This is really quite expansive
I wanted to put those concerns on the table for honourable senators to
consider. I do not want to be harsh with the committee, least of all with its
chairman. I think the problem lies with ourselves. From the beginning, we have
let this matter get out of hand. I do not know how we will get it back in hand,
but I do know that before we vote on the adoption of this report, some serious
consideration should be given to our direction. What are we trying to accomplish
with this committee? What direction do we want to give to it in terms of our
rules and in terms of mandate? What should the cost be?
Hon. Tommy Banks: Honourable senators, I am not now a member of the
committee. Can the Honourable Senator Murray tell us which questions he is
referring to in respect of the purview of the committee? I am not referring to
the money now. When the idea for this committee was being first booted about and
then as the committee was created, it seemed that the Senate consciously set out
to create a committee to deal with questions of defence. We knew we were dealing
with defence in the traditional sense of the word and security in what we knew
even then was a different sense of the word and in what has since become an even
more different sense of the word.
Senator Murray raised questions about including aspects of the operations of
the Solicitor General as they apply to CSIS, for example, or the CCRA as they
apply to the importation of questionable goods or correspondence between persons
of interest. Which of those issues does the honourable senator think could
reasonably be removed from an examination of national security?
Senator Murray: My problem, honourable senators, is that we do not
find in the rule that we adopted in creating the committee the following more
expansive view, or different view, as you put it, that we are taking of
security: the Standing Senate Committee on Defence and Security, to which may be
referred bills, messages, et cetera, relating to national defence and security
generally, including Veterans Affairs. It is only later, after this rule has
been passed, that Senator Kenny tells us that the mandate is emergency
preparedness, police services, terrorism and all these other issues. The last
time that we had occasion to discuss security in the sense that Senator Banks is
discussing it was when we set up special committees under former Senator Kelly
to study the rather more expansive view of security.
Senator Forrestall's interpretation of the other day was more in line with my
interpretation and more in line with what I thought we were doing back then when
we created the committee. In talking about national security, it was national
security in the sense of defence-related security and the role of the Canadian
Armed Forces in that respect. I have no objection to going further afield if
that is what we decide to do, but it seems to me that we have not created a
committee with that mandate. We have created a committee with a more limited
mandate, and before that committee goes out and creates its own mandate, we must
have a serious debate here.
The Hon. the Speaker: I am advised by the people who keep time that
the 15-minute time period for Senator Murray's intervention, comments and
questions has expired. Is there leave to allow him to continue?
Senator Robichaud: Honourable senators, I am prepared to grant another
seven minutes, as we did with the previous speaker, in order to allow Senator
Murray to answer questions and finish his remarks.
The Hon. the Speaker: Leave is granted.
Senator Banks: Honourable senators, I would respond to Senator Murray
by saying that there seems to be a different interpretation of what is meant by
"security generally." I always understood "security generally" to mean
security generally, and "generally" is an expansive word.
Senator Kenny: Honourable senators, I have two questions for Senator
Murray. First, he has twice now mentioned the question of emergency
preparedness. Is he aware that this function has been transferred to the
Department of Defence and is now called the Office of Critical Infrastructure?
Second, would he care to define for the chamber what he considers security to
Senator Murray: In answer to the first question, yes, of course I am
aware of it. As my friend has mentioned, the Standing Senate Committee on
National Finance, before my time, had undertaken a study of that matter in
connection with the Estimates.
No, I would not care to define off the top of my head what I mean by
"security." That is exactly why I want some consideration to be given by the
Senate as a whole to a proper, detailed and specific mandate for my honourable
friend's committee. That is why we need a debate here.
Hon. Pat Carney: Honourable senators, my intervention is in the form
of a question. It is based on the fact that mandates in the Senate, in my 11
years' experience, are usually quite specific, if only to keep within budget
constraints, and it is important that committees do not go beyond their mandate.
In this case, since without a doubt the definition of "security" before
September 11 and after September 11 has changed, at least in our minds, is it
not reasonable to ask the Honourable Senator Kenny to possibly change his motion
to more properly define the scope of the security that we face now after
September 11? We would be more comfortable, would have a clearer mandate and
would accomplish more if my friend's plans and procedures would accommodate
events after September 11. It will not unduly delay the situation, but the
definition and the responsibility and necessary work of the committee would be
The Hon. the Speaker: Senator Carney has put a question to Senator
Kenny. It would be in order to ask the question of Senator Murray because he has
seven minutes, less whatever has been used, of his time.
Is leave granted, honourable senators, for Senator Carney to put a question
to Senator Kenny.
Senator Robichaud: Honourable senators, I am prepared to have a
completely open debate in order to allow senators to express themselves. Senator
Murray had the floor. Questions and comments must be put to Senator Murray. If
we allow questions to be asked of other senators, then Senator Murray will lose
the time he had left to answer questions, and we will end up with a difficult
The Hon. the Speaker: I take it leave is not granted. Perhaps Senator
Murray wishes to comment.
Senator Murray: I agree with what Senator Carney has said. My problems
with this report are two. One is that what is being proposed goes, in my view,
well beyond the rule that we adopted when we created the committee. We need a
broader discussion of that before we proceed so that the rule is more expansive.
My second problem, and it is serious, relates to the budget. It is quite
expensive. We are talking about $196,000 for a committee that we have just
created to go figure out what its mandate and role is to be. I think that is
Hon. Roch Bolduc: Honourable senators, I thought I understood during
the course of the debate that we were adding issues of terrorism to the concept
of security. As Senator Carney says, if we include it here, it is precise and
restrictive. Could the senators who are members of the Foreign Affairs Committee
debate the aspects of foreign policy arising from terrorism? If terrorism is
examined by the Committee on Security, the Foreign Affairs Committee will not be
able to touch it, whereas, in my opinion, most of the problems related to
terrorism are matters of foreign policy.
Senator Murray: Honourable senators, we must reflect before proceeding
with this motion. We must debate it in the Senate. The respective roles of the
Foreign Affairs Committee and of Senator Kenny's new committee must be
Hon. Laurier L. LaPierre: Honourable senators, if logic prevails and
if we have a committee on defence and on security, surely all the institutions
and bodies Senator Kenny has mentioned are part of the process of determining
what the issues are all about. With all due respect, should we continue to
fiddle while Rome is burning?
Senator Murray: Honourable senators, it is not I who is fiddling. The
committee itself proposes to do its homework at a cost of $196,000 before
embarking on something more substantive, at which point one assumes they will be
into real money.
The Hon. the Speaker: I regret to advise that Senator Murray's time
Hon. Jack Wiebe: Honourable senators, I get the feeling that for some
reason we are using the request for additional funds to open up an area of
concern about what the committee should or should not be doing in the future. I
think that is very wrong.
The committee is acting under the mandate given to it by this chamber. This
chamber agreed to allow the committee to "conduct an introductory survey of the
major security and defence issues facing Canada with a view to preparing a
detailed work plan for future comprehensive studies."
Our first work is to conduct that survey and present a detailed plan. I am
sure that all members of the committee from both sides of the house believe
strongly that the work of this committee is essential. Things may have changed
in view of September 11, but that should not detract from the mandate that this
chamber has given. If members of this chamber have concerns about which
committee should be studying what, let those members introduce a separate motion
to deal with that issue. Let us not cloud the issue with two or three different
things. The committee is working and following the mandate given to it by this
chamber. I suggest we allow it to do its work and make its report. If there are
members who believe that this committee should not be studying certain issues,
but that other committees should instead be studying them, let them move a
Senator Carney: Honourable senators, I have just returned from a week
of talking to British Columbians. They believe that the government has done very
little to cope with the reality of September 11; that the Liberal response to
the events of September 11 has been meagre, to say the least.
I endorse Senator Murray's concerns about this matter. I think that to
proceed with Senator Kenny's motion to set the terms of reference for a
situation that is viewed by Canadians, if not the government, as extremely
serious would not be in our interest. There should be some recognition of
reality. Senator Kenny and his committee might wish to take into account the
sage wisdom of Senator Murray and proceed on the basis that they will be dealing
with the concerns of Canadians rather than just setting out an expensive work
plan to define an agenda. Every Canadian that I know of knows what the agenda is
and what their concerns are. They would like to see the government, including
the Senate of Canada, address those concerns.
On motion of Senator Stratton, debate adjourned.
On the Order:
Resuming debate on the motion of Senator Gauthier, seconded by Senator
That the Standing Senate Committee on Transport and Communications be
authorized to examine and report upon the measures that should be taken to
encourage and facilitate provision of and access to the widest possible range
of French-language broadcasting services in francophone minority communities
across Canada.—(Honourable Senator LaPierre).
Hon. Rose-Marie Losier-Cool: Honourable senators, I have permission
from Senator LaPierre to take part in the resumption of the debate on the motion
by Senator Gauthier, which stood in his name. It is agreed that the motion will
stand in the name of Senator LaPierre.
Honourable senators, I support Motion No. 65 introduced by Senator Gauthier
on September 19.
My support for this motion is partly based on the CRTC's report entitled
"Achieving a Better Balance." This report mentions the numerous concerns of
various francophone communities in Canada. These communities not only condemned
the inequality of service and the difficulty of having access to French-language
broadcasting services, but also deplored the lack of content reflecting their
own realities. Various associations and individuals expressed their concerns
about this inadequate reflection of the communities in which they live. As you
know, these communities are often small and located in rural areas. This is why,
in its 2000-2001 annual report, the Fédération des communautés francophones et
acadienne du Canada condemned the following:
The first request seeks to free small Class 3 (2,000 subscribers or less)
cable companies from a whole set of obligations to the CRTC and the public,
including exempting these companies from the broadcasting licence renewal
Senator Gauthier also mentioned it in his September 19 presentation:
The other request seeks to broaden the definition of a Class 3 (2,000
subscribers or less) cable company, which would significantly broaden the
scope of the first application.
Of course, the FCFA is opposed to these applications and it has asked the
CRTC to reject them because, among other reasons, the renewal process is a
unique opportunity to examine the behaviour of a cable company.
In the 2000-2001 report, the Commissioner of Official Languages says the
following, and I quote:
In 2000-2001 the CRTC handed down certain decisions that were inconsistent
with the government's commitment to enhance the vitality of official language
minorities and advance the equality of English and French in Canadian society.
It should be pointed out that the CRTC rejected TVOntario's request asking
that the broadcasting of its French-language network (TFO) in Quebec be
The CRTC also refused to deliver a broadcasting licence to a French-language
community radio project in Toronto. Yet community radio allows minority
communities to be informed and to communicate in their own language. It is an
excellent tool to break the isolation of these communities.
Honourable senators, as a senator from New Brunswick, I endorse the concerns
and representations of the FCFA, of the Commissioner of Official Languages and
of many Canadians.
We want to have an accurate picture of the realities of the various
francophone and Acadian communities across the country. We want to have access
to a larger number of broadcasting services and quality programs in French, and
we want a better reflection of our communities by conventional public and
private broadcasters in the education, specialized and community sectors.
I sincerely hope that the discussions that will take place at the Standing
Senate Committee on Transport and Communications will lead to proposals that
will be carefully reviewed to make sure that they help the promotion and
economic development of francophone and Acadian communities.
On motion of Senator LaPierre, debate adjourned.
On the Order:
Resuming debate on the inquiry of the Honourable Senator Poy calling the
attention of the Senate to the national anthem.—(Honourable Senator Spivak).
Hon. Mira Spivak: Honourable senators, I am pleased to speak to the
motion and in support of the change to our national anthem that Senator Poy is
proposing. I will be brief because previous speakers have advanced much of the
During our summer recess, there has been considerable public debate about the
proposal to change the few words in our anthem that strike many Canadians as
being antiquated and exclusionary of women. The news media has carried scores of
items about the proposal, each of them prompting letters to the editor, both in
favour and opposed to the legislation.
Polls have been conducted. The results do not appear to show that a majority
of Canadians see the need to replace the words "in all thy sons command" with
words that clearly include women, but it is young women who feel most strongly
that it is a time for change. That is significant.
As one might expect, those in favour of the status quo are those who have
sung the words for decades without thinking that they reflect a society in which
the roles, responsibilities and opportunities for women were very different from
that what they are today. It is young women who recognize and feel the anomaly.
They know that Canada has matured into a nation where women are full partners in
our society, in the professions of law and medicine, commerce and finance, in
the functioning of our institutions, including those of the federal government
and our work here in Parliament, and the military. They feel that to sing the
words that suggest only "sons" build and defend our country is a bit strange.
The letters from young women and newspaper columns written by young women are
persuasive. I should like to quote one of them.
Catherine Clark, daughter of the Leader of the Progressive Conservative
Party, in her first column in The Toronto Star this summer wrote:
I was 14, sitting on Parliament Hill in the presence of Her Majesty the
Queen on a sunny 1992 Canada Day, when I realized that my national anthem left
...the lyric "in all thy sons command"...didn't refer to me, or to anyone
of my gender. When it was first written, the verses made sense, because it was
how people thought and spoke at the time. But it didn't make much sense to me
as a teenage girl reading it in the last decade of the 20th Century....
It's not a matter of being politically correct, it is a matter of realizing
that almost a century has gone by since the anthem was first written. Just as
we would reinforce the foundation of an aging house to keep it standing, we
need to reinforce the meaning of "O Canada," to make it relevant to
Honourable senators, we need to ponder these thoughts and consider whether
this small but significant change to the words of our anthem can do more good
Of course, most recently, we have the event of the tragic and horrific
suicide bombings of the World Trade Center in New York and the Pentagon in
Washington. As so many have said, the world has changed.
One of the small changes was evident here on Parliament Hill in the sombre
ceremony on September 14, when 100,000 people gathered quietly to mourn and to
show support for our American friends. Two anthems were sung at that brief
ceremony — our own and The Star Spangled Banner. Both moved many people
in that assembly to tears, as no doubt they did for many of the millions of
Canadians who watched the ceremony on television.
The words in our anthem that rang as clear as the bell of the Peace Tower
were not the words we are considering in this motion. The words "glorious and
free" touched the hearts of Canadians, reminding us of what we hold so dear and
what we now fear is threatened. It was a striking reawakening of the power of
the national anthem to give voice to our values, to move our hearts and to unite
our diverse people in our deepest hopes and prayers.
In happier times, when the anthem is played as a Canadian athlete wins an
Olympic medal, for example, it evokes not just national pride but kinship. For a
brief moment, Canadians can feel one with the joy of the man or the woman who
competed as a member of the Canadian team.
An anthem is more than inconsequential words and a tune to hum along, as some
have suggested. It is an expression of who we are, of what we stand for and of
our desire to stand together. If a few antiquated words exclude half our
population and are felt as exclusionary, particularly by young women, I am sure
that we can be mature enough to make that small change.
On motion of Senator Cools, debate adjourned.
On the Order:
Resuming debate on the inquiry of the Honourable Senator Gauthier calling
the attention of the Senate to the current negotiations on the renewal of the
broadcasting agreement between the Senate and CPAC (the Cable Public Affairs
Channel) to ensure that they include the closed- captioning of parliamentary
debates authorized for television, and that the renewal of this agreement
reflect the commitments made by CPAC on services for the hearing impaired.—(Honourable
Hon. Richard H. Kroft: Honourable senators, my remarks today on this
inquiry will be brief. I do, however, want to take this opportunity to make a
few points clear to this chamber.
Your Internal Economy Committee is seized of this matter and serious
negotiations are underway with CPAC concerning a wide range of issues, including
In conducting these negotiations, the committee and officials are very
mindful of the obligation the Senate has to communicate with all Canadians, and
particularly of the recommendations of the Standing Joint Committee on Official
Languages contained in its report of May 2001.
Beyond the specific point of closed-captioning, your Internal Economy
Committee is working with the administration of the Senate to explore a wide
range of new technologies, with a view to enhancing communication within the
chamber, within committees and with Canadians broadly. Senators should be aware
that the Senate is the leader in the transmission and translation of debates,
and we are seeking every opportunity to put this capacity to the service of the
Senate and to the public.
Honourable senators, I undertake to keep the chamber advised of our progress
and, to that end, would ask to adjourn the debate in my name for the balance of
On motion of Senator Kroft, debate adjourned.
The Hon. the Speaker: Honourable senators, we have now come to the
point in our proceedings where, under rule 43(8), we take up consideration of
the Question of Privilege of which Senator Cools gave notice under Senators'
Statements as required under the Rules of the Senate.
Hon. Anne C. Cools: Honourable senators, that I shall not be
proceeding, I think is obvious to most senators at this point in time. I had
given written notice this morning as per the rules. During Senators' Statements
I gave the required oral notice. I indicated at that time that I would be
I must say now to honourable senators that I will not be speaking as I had
indicated, mainly because Senator Hays' ruling has overtaken my question of
privilege. One could say events here in the chamber have overtaken my question
of privilege. I had intended to raise some questions that, essentially, His
Honour has ruled on.
I had hoped, in the circumstances of my notice, that perhaps His Honour could
have waited an hour or two before he ruled on Senator Lynch-Staunton's question
of privilege. It would have given me more scope. However, under the
circumstances, since he has ruled on some of the matters that I had wanted to
raise, it would be better to proceed on another day, at another time.
Even so, honourable senators, perhaps I shall rethink whether I wish to
proceed under this particular rule at all or whether I wish to proceed, with
notice, under other rules that provide for the giving of notice and then the
moving of a motion under another set of circumstances.
Honourable senators, I shall not be proceeding under this rule today.
The Hon. the Speaker: We will now proceed with the balance of our
Hon. Sheila Finestone rose pursuant to notice of June 14, 2001:
That she will call the attention of the Senate to three diseases which are
sweeping the developing world and which draw many to ask whether intellectual
property rights over patented medicines haven't taken precedence over the
protection of human life.
She said: Honourable senators, imagine that you are living in a developing
country where you have barely enough money to feed yourself, let alone buy
expensive prescription medications from the West. Imagine that a member of your
family is gravely ill. What would you do?
For billions on our planet, this is not a theoretical consideration. Here are
the facts about three major diseases that are decimating the developing word,
namely, tuberculosis, HIV-AIDS and malaria. Most of the statistics I am about to
share with honourable senators come from the World Health Organization, but much
of it is from a visual understanding, having visited some of these countries.
Every year, tuberculosis kills 2 million people throughout the world, with
another 8 million new cases developing each year. As unbelievable as this may
sound, it is estimated that 2 billion people in the world are infected with TB,
out of which almost 200 million will develop the disease. What is most
disturbing is that medical experts are beginning to see the rise of a virulent
drug- resistant strain of TB, thanks in part to both the impaired availability
and the improper use of the antibiotics required.
What is particularly worrisome is that, unlike HIV-AIDS, which is transmitted
through the exchange of infected blood or semen, tuberculosis, as some know, is
transmitted through proximate airborne contact.
Let us consider HIV-AIDS. In the last two decades, it has killed 22 million
people — a little more than 1 million people a year worldwide. Ninety per cent
of the cases are found in the Third World. In Africa, the disease has orphaned
12 million children. In light of what has taken place recently, these figures
are stunning. They bring the changes that have taken place in the world into
In South Africa, one of the continent's most developed countries, one out of
every five adults is infected. However, unlike tuberculosis, there is as yet no
cure for the disease, only prohibitively expensive life-prolonging drugs.
Malaria is a medical health problem in more than 90 countries, home to 2.4
billion people or 40 per cent of the world's population. Of this population, 500
million become infected or are reinfected with malaria each year. More than 1
million people die from one of the four strains of the disease per year. Of this
group, 700,000 are children under the age of five. In fact, malaria kills one
child every 30 seconds — a death toll that far exceeds the mortality rate from
The average African child under five gets malaria six times a year. Some
children die less than 72 hours after developing symptoms. In those who survive,
malaria drains vital nutrients, serving to impair their physical and
intellectual development. Malarial sickness is also one of the principal reasons
for poor school attendance.
When stacked together, tuberculosis, HIV-AIDS and malaria kill 4.1 million
per year. In just eight years that represents the entire population of Canada
being wiped off the face of the earth.
While our government has earmarked $204 million to combat each of these
diseases through a variety of initiatives, I wish to draw to the attention of
honourable senators that, excluding HIV- AIDS, less than 1 per cent of current
research and development is producing drugs aimed at combating tropical
In June of this year, the Financial Post reported on the clash that was
unfolding between the WTO's African members and transnational pharmaceutical
giants over the WTO's current intellectual property agreements. Their main
complaint was the dramatic and continual rise in drug prices, a rise which they
feel is driven by existing patent protection guarantees. Not surprisingly, the
pharmaceutical industry states that patents are not the problem.
While it is true that the WTO's Trade-related aspects of Intellectual
Property Agreement, or TRIPS, makes allowance for a patent override when an
exceptional health crisis exists, the World Health Organization maintains the
patent override provision is simply not being used. Why?
Agencies such as Oxfam and Médecins Sans Frontières say it is due to the
WTO's introduction and stringent application of patent protection for drugs to
developing countries since the year 2000. This, in turn, has pushed patent drug
prices through the roof. Because rising drug prices reduce access to treatment,
this, in turn, causes tropical disease rates to rise in the developing world.
When it comes to the spread of disease, there are no borders. Let us consider
the West Nile virus. In just two years, it migrated from New York City to
Toronto. Can malaria or other tropical diseases be far behind?
Illegal immigration from developing nations to Europe, Australia, the United
States and Canada is also of great concern. Canadian health officials have twice
gone on high alert in recent years. The first such case was when several Tibetan
refugees from India were found to be carrying a drug-resistant strain of TB.
More recently, a woman from Africa was thought to be infected with the highly
contagious Ebola virus.
Recent events in New York and Washington, and recent news of the possible use
of crop-dusting planes to spread dangerous biological agents, has added a new
wrinkle. I suggest that it is just a matter of time before a kamikaze terrorist,
deliberately pre- infected with a highly contagious virus, arrives on North
As far back as 1970, a WHO committee estimated that if 50 kilograms of a bug
called Francisella tularenis were released into the air over a city of 5
million people, 250,000 would be incapacitated, of which 19,000 would choke to
death. The emergency rooms of our hospitals, which are already overtaxed, would
become a nightmare. To learn more, senators should refer to a short Toronto
Star article on bio-terrorism found in its September 16 edition.
What we need to realize is that the West's preoccupation with the development
of medications tailored to North American afflictions, such as impotence, has
left us vulnerable to tropical diseases that we, in our complacency, seem to
In Dickens' A Christmas Carol, Scrooge sees two children flanking each
side of the ghost of Christmas future. Scrooge asks what they symbolize and is
told that one is "want" and the other "ignorance." "Beware them both" says
the Spirit, "but beware this boy called ignorance, for on his brow is written
doom, unless the writing is erased."
In February of 1844, soon after A Christmas Carol was first published,
Dickens delivered a speech at a Birmingham university. In it, he said:
Now there is a spirit of great power, the Spirit of Ignorance, long shut up
in a vessel of obstinate neglect, with a great deal of lead in its
composition, and sealed with the seal many, many Solomons... Release it in
time and it will bless, restore and re-animate society; but let it die under
rolling waves of years, and its blind revenge at last will be destruction.
Have we inadvertently become party to a great sin of omission? What about our
current laws on intellectual property? What about their relation to prescription
drugs? What are the impacts of our support of the pharmaceutical industry on the
Third World? Twenty years. Remember that?
Do we believe the TRIPS agreement is serving humanity as well as we had
hoped, or have we sown the seeds of ignorance and want in lands far away, seeds
whose fruits called "doom" have almost ripened?
As I alluded to earlier, even at home, we Canadians are beginning to feel the
sting of our policies in terms of rising health costs. The Patented Medicine
Prices Review Board reports that in the four years from 1995 to 1998, sales of
patent drugs as a percentage of total drug sales rose from just under 44 per
cent to 55.1 per cent of total health-related spending. Health Canada reports
that in 1996 — and that is my latest available figure — a whopping 45.8 per cent
of Canada's medical expenditures came in the form of prescription drugs. From
1999 to 2000, the cost of patent medicines increased 16.7 per cent, and this at
a time of low inflationary pressure. Sales of patented drugs in the year 2000
topped $6.3 billion, or 63 per cent of all drug sales for human use in Canada.
According to the August 2001 edition of the Canadian Medical Journal,
pharmaceuticals represent the fastest growing component of Canadian health care
costs, showing growth rates three times the annual rate of inflation. No wonder
we hear of seniors on fixed incomes having to make a choice between food and
medicine! But again, imagine how much more challenging it must be for those
living in the developing regions of the world.
Ironically, Canada continues to have the lowest prices for patented drugs in
any of the industrialized nations, thanks largely to the Patented Medicine
Prices Review Board.
Why, then, is there a rise in drug prices? A CMA official stated that it is a
by-product of the longstanding R&D effort in medical science, spurred on by
discoveries from the human genome project. Because new discoveries at the
leading edge of science come with a price, it is a trend that is likely to
continue. However, that is little comfort to the developing world, where TB,
malaria and HIV-AIDS continue to decimate their world.
Médecins Sans Frontières has recommended a multi-prong, five-track approach.
Track one would implement an "equity pricing" policy worldwide. Track two
calls for the institution of various "Regional Procurement Authorities." Track
three would allow for the entry of generic competitors into specific
jurisdictions. Track four would force patent drug manufacturers to "license"
local drug producers to make a specific range of drugs to combat high-threat
diseases. Track five would enforce the TRIPS agreement safeguards.
While I doubt that I have time to elaborate on each of the five tracks
mentioned, in what time I do have, let me sketch a quick picture.
Track one deals with implementing an equity pricing policy worldwide. Simply
put, equity pricing — also known as differential pricing or market segmentation
— looks at adjusting patent drug prices to the national economy in which they
are used. For example, if the price of a particular antibiotic used in treating
TB represents a single day's pay at minimum wage here in Canada, then the same
principle would apply in the developing nation in question.
The downside of this approach is that to this point it has been purely
voluntary on the part of transnational drug makers. What history has shown is
that this has only worked after tremendous international public pressure was
brought to bear on drug makers, pressure that began to tarnish the otherwise
good name of these companies. Only then did the companies "voluntarily" adjust
their prices. One fear is that lower priced patent drugs will fall into the
hands of corrupt officials and find their way onto the black market.
In track two, "Regional Procurement Authorities" would negotiate a price
for a particular range of patent drugs on behalf of an entire region such as
Africa in exchange for granting a supplier access to a high-volume market.
Track three allows the entry of "generic competitors" in specific
jurisdictions. This is a big hurdle because it flies in the fact of existing
intellectual property rights agreements to which developed nations have adhered.
It could result in the "product leakage" across contiguous borders, destroying
local market stability.
Track four would force patent drug manufacturers to "license" local drug
producers to make a specific range of drugs to combat specific high-risk
diseases. On the positive side, we are able to share technological know-how with
various developing countries. On the downside, should a corrupt regime seize
political power through undemocratic means, corrupt officials would again be in
a position to pilfer supplies or, worse, divert drug-making capacity to the
development of biological and chemical weapons.
Finally, we come to track five, enforcement of the TRIPS agreement
safeguards. These provisions require patent drug makers to either license or
allow the parallel importation of generics into particular markets when a
medical crisis warrants. This is where Canada comes in: We can help ensure that
TRIPS agreements safeguards are not being ignored. We can do this by extending
the mandate of Canada's own Patented Medicine Prices Review Board to include
specific developing regions of the world where a particular medical crisis is
deemed to exist. The review board could be empowered to work with parallel
agencies among the G8 to ensure that a common approach was adopted by all
developed nations in addressing TB, malaria and HIV-AIDS.
Another approach is to link the patents for new drugs to the adoption of new
and R&D efforts in tackling specific tropical diseases. Drug companies would
have to allocate a reasonable percentage of all profits stemming from new drugs
to research on a targeted disease.
I could go on, honourable senators, but the important point is that we
recognize the following: We now live in a world where the borders to diseases
like the West Nile virus, Ebola, TB and possibly even malaria and many other
horrors are beginning to disappear thanks to modern international air travel,
illegal immigration, climate change and even terrorism. In this sense, we are
all in this together. If we choose to ignore these considerations, then I fear
that we have already given rise to the child of ignorance upon whose brow is
written doom, a boy whose wrath, as Dickens prophesied, may well result in our
On motion of Senator Poy, debate adjourned.
The Senate adjourned until Wednesday, October 3, 2001, at 1:30 p.m.