Debates of the Senate (Hansard)
3rd Session, 40th Parliament,
Volume 147, Issue 70
Thursday, November 25, 2010
The Honourable Noël A. Kinsella, Speaker
Thursday, November 25, 2010
The Senate met at 1:30 p.m., the Speaker in the chair.
Hon. Suzanne Fortin-Duplessis: Honourable senators, on November 18, I
had the privilege of welcoming to my office Linda El Halabi, a young intern from
McGill University who was taking part in the Women in House program. The purpose
of this program, which was created by the Faculty of Arts students' association,
is to promote equal male-female representation. The program encourages female
students to get involved and pursue a career in politics, following in the
footsteps of successful female politicians. This year marks the 10th anniversary
of the program, and I was very proud to take part in it. I am very happy to have
been able to share my political experience with another young woman and help add
to her learning.
In 1981, I became the first woman elected to city council in Sainte-Foy, and
I have always believed that equal male-female representation is vital to
Canadian democracy. Being a firm believer in the benefits of knowledge transfer,
I also feel that every generation of women has a duty to pave the way for the
generation that follows. The pioneers who came before me gradually improved the
status of women in this country. Every step forward shattered conventional
thinking, and every victory was hard fought.
Today, we can celebrate with pride the progress women have made. There are 37
women sitting in the Senate, which represents 35.24 per cent of all senators.
Sixty-seven of the 302 sitting members of the House of Commons are women. The
number of women in the federal cabinet is higher than ever before. This is
definite progress, especially when we think about what things were like 50 or
100 years ago. Women still have a long way to go, however. It is more important
than ever to work toward male-female parity in politics and in our country's
As a society, we need women who are inspired by their own experiences, their
achievements and their desire for change to introduce new ways of looking at
things and add to the diversity of thought. That is why I want to congratulate
McGill University and the coordinators of the 2010 Women in House program. I
hope they will continue to inspire these young leaders of tomorrow through this
Hon. Jane Cordy: Honourable senators, Holy Angels High School is the
only public all girls school east of Montreal. I am a proud graduate of Holy
Angels, and I can attest first-hand to the excellence of the school. It is known
in Cape Breton as "the convent" and the students are known as "the convent
girls" or "the angels."
Since the school was established in 1885 by the Sisters of Notre Dame, it has
been educating generations of young women in Cape Breton. In fact, my
grandmother was a graduate of Holy Angels. The "convent" was and continues to be
a special place to go to school. It provides a nurturing, safe environment in
which to learn. As one student said, "It is a place where young women can go to
any teacher and feel trust and comfort." The student experience at Holy Angels
gives them confidence to take on life's challenges.
When I was a student at Holy Angels, the principal at the school was Sister
Peggy Butts, who was later Senator Peggy Butts. Honourable senators in the
chamber who were fortunate enough to have known Sister Peggy will understand
what an inspiration and role model she was for the students. The current
principal, Theresa MacKenzie, also a Holy Angels grad, believes passionately in
the model that allows students to grow from young girls to young women.
Honourable senators, in the 1950s, Holy Angels High School was handed over to
the Nova Scotia Department of Education. It was only after this transfer that
the sisters who were teachers received a salary. The sisters kept ownership of
the building and charged a modest rent to the province that did not even cover
the operating expenses of the school.
The Sisters of Notre Dame have made a tremendous contribution to the
education of young women in the Sydney area. I want to thank the congregation
publicly for all they have done.
Unfortunately, the sisters have made the difficult decision to put the school
building up for sale. Honourable senators, because of this situation, the school
is in danger of closing.
On Tuesday, November 10, a group of students, parents and teachers travelled
to Halifax to present a petition and to make their case to the provincial
government to find a way to keep their school open.
The Nova Scotia Department of Education has yet to make any decisions. It is
my sincere hope that a solution can be found to allow future generations of
young women in Cape Breton the opportunity to attend Holy Angels High School. I
want to take this opportunity to recognize Holy Angels High as a great Canadian
institution of learning.
Hon. Patrick Brazeau: Honourable senators, I rise today to highlight
the anniversary of a pivotal event in Canada's Aboriginal affairs. Today marks
the fifth anniversary of the First Ministers Meeting on Aboriginal Affairs in
Kelowna, British Columbia, and the turning point in the relationship between
Canada and its Aboriginal peoples.
Five years ago today, the myth that was the so-called "Kelowna Accord" was
born; in reality, no accord at all but a communiqué announcing proposed
spending. The provisions announced were to have been rooted in accountability.
This never happened. Progress was to have been monitored year upon year. This
monitoring was also abandoned. Kelowna spawned the impetus for a new and better
way of working with Canada's Aboriginal peoples. Through the ultimate failure of
the Kelowna process came the opportunity to begin to confront and incrementally
overcome the real and fundamental issues that impede our nation's Aboriginal
people's ability to stake their rightful claim on every aspect of our seemingly
Honourable senators, our government seized this opportunity with vigour. The
results speak for themselves.
As a government, we took responsibility for the shame of Indian residential
schools and rendered a sincere apology to survivors of this tragic ordeal and to
the Aboriginal community at large.
We brought the protection of human rights for First Nations people to the
fore by repealing section 67 of the Canadian Human Rights Act, thereby ensuring
that First Nations people on reserves had the same rights protections that every
other Canadian citizen has enjoyed for over 30 years.
Through partnership with First Nations leaders, we jointly implemented an
independent adjudication body for the settlement of specific claims.
We endorsed the United Nations International Declaration on the Rights of
Indigenous Peoples in respect of affirming our abiding commitment to promoting
and protecting the rights of indigenous peoples.
Kelowna was an unaccountable exercise that sought to buy a legacy of
investment, rather than deliver upon promise to people in real need. Five years
on, honourable senators, together with our partners, our government remains
determined to sustaining the momentum gained thus far. Together, we will achieve
meaningful results for the entire Aboriginal community and for the country as a
Hon. Jim Munson: Honourable senators, it is my pleasure today to
highlight that this year, 2010, marks the fiftieth anniversary of the Youth
Services Bureau of Ottawa. Since it was founded in 1960, the agency has assumed
a crucial role in this city, helping youth and their families resolve a wide
range of serious problems. I am honoured to be a member of the YSB's team and to
be part of its long-standing tradition of reaching out to youth with the
assistance they need.
Honourable senators, I am talking about young people struggling with issues
that could well change the course of their lives: kids with mental health
issues, kids who are homeless and unemployed, kids in trouble with the law.
These issues are tough, complicated and far too weighty for anyone to confront
alone. This is where YSB comes in, offering mental health support, shelter,
employment programs and guidance on our legal system. Each service is composed
of an array of relevant and innovative activities.
Under its youth justice services, for example, the agency works with
community partners to help young people facing criminal charges turn their lives
around. In cases where mental illness is the cause of criminal behaviour, the
Ottawa Youth Services Bureau will hook up young people and their families with
the appropriate community health services and information.
Through its residential facilities and outreach activities, the agency also
delivers training and counsel on real life matters, such as vocation and
education options, drugs, dispute resolution and anger management.
YSB is funded by the Province of Ontario, the City of Ottawa, the United Way
and other donors. With 20 sites located in Ottawa, it serves between 2,500 and
3,000 youth and their families every month. Thanks to YSB, young people who
might otherwise be stifled by hardship or finding jobs are succeeding in school
and making positive decisions about their health and well-being.
This evening, I will be attending a fundraising event called "One Big Party"
for current and former staff, volunteers and board members. We are trying to
raise $750,000 by the end of the fiscal year. It is also a chance to just
celebrate the people behind the YSB's extraordinary work. Once that party ends
tonight, where Jim Cuddy will play, the work will continue, as will the need for
support from government, businesses and individuals.
I invite honourable senators to look into YSB and consider whether it might
be the type of agency they would like to get behind. I can remind them, in the
few seconds I have left, that when they walk off the Hill, appreciating being
who we are and what we do, within the shadows of Parliament there are young
people in this city who are not sleeping in comfort but are sleeping on the
street. These are the people we should be caring about. Honourable senators can
be sure that whatever help they can give will be put to good use.
The Hon. the Speaker: Honourable senators, I have the honour to table,
in both official languages, the 2009-10 annual reports, pursuant to section 72
of the Access to Information Act and of the office of the Commissioner of
Official Languages Privacy Act.
Hon. Sharon Carstairs: Honourable senators, pursuant to rule 28(4), I
request leave to table a document entitled: Pages of Reflection: A Journal of
Essays by Senate Pages. This is the third edition and honourable senators
will receive it in their offices.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Hon. David Tkachuk: Honourable senators, I have the honour to table
the eighth report of the Standing Committee on Internal Economy, Budgets and
Hon. James S. Cowan (Leader of the Opposition): Honourable senators,
my question is for the Leader of the Government in the Senate. Last Friday,
there was an article published by Reuters in Britain, the title of which was
"CANADA: A Govt Versus Its people on Climate Change." That article was written
following the defeat of Bill C-311 in the chamber last week and it argued that
there is obviously a real disconnect between this government and the Canadian
people with respect to climate change.
The results of an Environics research poll last week revealed that the vast
majority of Canadians want their government to urgently take action in order to
address climate change. Over 80 per cent said that the government should invest
in green jobs and transition programs for workers and communities affected by a
shift from fossil fuel; 85 per cent also agreed that:
Industrialized countries . . . should be the most responsible for
reducing current emissions.
The results of this poll are the Canadian portion of a global referendum on
climate change that documents the views of citizens all over the world. The
final results will be presented at next week's conference in Cancun and they
will provide some context for these negotiations.
Where these poll results clearly indicate a demand from Canadians for greater
action from their government, how will Minister Baird justify his government's
inaction and explain to the world why his government is completely at odds with
Canadians on the matter of climate change?
Hon. Marjory LeBreton (Leader of the Government): I thank the
honourable senator for the question. Canada is taking the issue of climate
change seriously. Minister Baird will go to Cancun, following up on the work of
the former Environment Minister, Jim Prentice, at Copenhagen, and put forward
forcefully — that Canada supports a new, single global climate change agreement
based on the Copenhagen Accord and which includes commitments from all major
emitters. We want to see balanced progress toward this objective at the 2010
United Nations Climate Change Conference in Cancun in December and we will
continue to engage with Canadian stakeholders and international partners leading
up to Cancun.
Under the accord, as the honourable senator knows, we committed to reduce
Canada's emissions by 17 per cent below 2005 levels by 2020, which is aligned
with the target of the United States. Given our deeply integrated economies and
our deeply integrated industries, there is a significant environmental and
economic benefit to a harmonized approach. We will continue to work with the
Obama administration to develop clean energy technology and take a continental
approach on climate change.
Our regulations recently introduced for passenger cars and light trucks were
finalized in October. It is one of many things that the government is doing,
including taking action on coal-fired electrical plants and dealing with new
energy sources such as wind and tidal power.
Senator Cowan: The leader's government has now been in power for five
Some Hon. Senators: Hear, hear.
Senator Cowan: — enthusiastically supported by about 32 per cent of
the voting population. Since the leader's government came to power five years
ago, it has introduced a single piece of environmental legislation, and that was
the Clean Air Act. Listen to what happened to the Clean Air Act. When a majority
of the elected members in the House of Commons made some improvements to that
act that the leader's government did not agree with, the government allowed it
to suffer death by prorogation.
The government has never bothered since that time, despite all of the
intervening prorogations and elections, to reintroduce that bill into the House
of Commons or the Senate.
Bill C-288, the Kyoto Protocol Implementation Act, was passed by the House of
Commons and by the Senate, and received Royal Assent in 2007. The government
simply chose to ignore it. Recently, the House of Commons passed Bill C-311, and
last week the government killed this bill without giving it an opportunity to go
to committee and for Canadians to be heard. The leader's government does not
want to be bothered with obligations imposed on it by acts of this Parliament.
The government chose last week, against the will of the House of Commons, to
defeat a bill without giving it proper consideration.
I repeat my question to the minister in another way. Next week, the part-time
Minister of the Environment, Minister Baird, will represent Canada at the Cancun
conference. Without any plan to tackle climate change, with no measurable
results on a non-legislative approach to climate change, what will Minister
Baird be proposing to his international counterparts?
Senator LeBreton: The record clearly shows, with regard to Bill C-311,
that the government would not support it because of the serious consequences to
the Canadian economy, to Canadian manufacturers and Canadian industries. In
fact, it would have put the country into a recession.
The bill did come before the Senate. The government side certainly was
prepared to speak to the bill and have it go through the normal stages in the
Senate, but the record clearly shows — and the honourable senator, The
Toronto Star and all the people who try to say otherwise cannot change it —
that the vote at second reading was forced by the honourable senator's side. I
would then ask what position the government could have taken other than the
position it took, to defeat a bill that would be completely injurious and
damaging to our economy? All our partners from around the world with whom we sat
at the table in Copenhagen would have been left wondering why we had abandoned
the position that we had taken there.
The Liberal opposition in the Senate supported this coalition bill, which was
an irresponsible piece of legislation. It should be a warning to Canadians that
this is the kind of bill and the sort of actions that would be taken by Michael
Ignatieff if he ever gets past 25 per cent in the polls, which the honourable
senator himself has mentioned.
It is a bit rich for the honourable senator to talk about a private member's
bill dealing with the Kyoto Accord when the government of Jean Chrétien,
immediately after signing the accord, indicated that the government had no
intention of living up to it.
The honourable senator calls Minister Baird a "part-time minister." Minister
Baird is the former Minister of the Environment. He is well-versed on this file.
Minister Baird worked with provincial and territorial governments to develop and
implement our climate change policies and initiatives. We have created two
federal-provincial-territorial working groups, which focus on domestic and
international climate change.
In June, as I mentioned earlier, we announced that we are regulating the
phase-out of coal-fired plants, which will significantly reduce emissions from
that sector and help to meet Canada's target of 17 per cent emissions. This is
the kind of initiative that Minister Baird will be taking to Cancun. He will be
working again in partnership with the people who worked around the table at
Copenhagen, where, as the honourable senator knows, for the first time, the real
major emitters in the world — the United States, China, India — were also
convened. That is what is most important.
For the honourable senator to suggest that Canada, which contributes less
than 2 per cent to the world's problem, and already pays 4 per cent of the cost,
should somehow or other be wholly responsible for the climate change issue, is
unfair to Canada, unfair to our industries and unfair to Canadians whose jobs
depend on our country continuing to be an industrial and energy power.
The government is very responsible.
Obviously, Canadians feel strongly about the environment. We all do.
Canadians also know that there has to be a balance between being a good world
citizen and a world partner, such as we were at Copenhagen and will be in
Cancun, and ensuring that they and their families have a job and can continue to
enjoy the standard of living that they presently do.
Senator Cowan: I certainly was not suggesting that Canada was
responsible in any way for all the difficulties there are in this world with
respect to climate change. However, I think it is entirely reasonable to suggest
that Canada has a responsibility to take a leadership role. For the leader to
simply say that we are at 2 or 3 per cent and therefore should let everyone else
lead while we follow along behind is not good enough. Canada is expected to take
a larger role than that, and Canadians deserve to have a government that is
prepared to take a leadership role.
Since the leader raised the issue of what happened to Bill C-311 and
predicted that it would have done all kinds of horrible things to our economy,
let me remind her that while she shares that opinion with some of her
Conservative colleagues, it is not an opinion that is shared by the majority of
the elected members of the House of Commons. What happened, I remind the leader,
was that she had a choice —
An Hon. Senator: Oh, oh.
Senator Cowan: The Bloc Québécois has nothing to do with it, Senator
Comeau. I suggest the senator go to Quebec and say that.
What happened last week came about after the leader had a choice for 194
days. She had time to make a choice. She could have sent the bill that received
the support of the majority of the members of the House of Commons to committee
so that Canadians could be heard, or kill it. She chose to kill that bill. I
suggest to the leader that there is a clear distinction to be drawn between the
Senate doing its job and carefully considering legislation that comes from the
other place and killing it before it has had an opportunity to be reviewed by
Senator LeBreton: I agree with the honourable senator. It was
certainly the intention of this side to speak to the bill and send it to
committee, even though, as the honourable senator publicly acknowledged several
times in the interviews he did, that he knew the government, at the end of the
day, would not support the bill. Thanks for putting the facts on the record.
However, I point out to the honourable senator that we did not defeat the
bill. It was the actions of his senators standing and demanding a vote on second
reading that then put the government in the position of not supporting a bill
that we vigorously oppose.
Honourable senators, having said that, I believe that these interesting
inside-the-beltway debates about process, second reading votes and referral to
committee are of scant interest to Canadians. What they were concerned about is
the content of the bill.
I think Canadians, other than the group from the David Suzuki Foundation that
instructed their people to email us and then did not take those instructions off
the email —
Senator Cowan: It is David Suzuki's fault now.
Senator LeBreton: — even though Canadians have problems with the
Senate and the way it operates, I believe Canadians support the fact that the
government defeated the bill.
By the way, I have seen evidence of that support in some of the call-in shows
that I have participated in, where overwhelmingly, people said they were glad
that the Senate defeated the bill.
The Honourable Senator Cowan says that Canada should not be a follower on
this issue but a leader. I say to the honourable senator that Canada has been a
On the issue of climate change, it is obvious, when 90 per cent of our
population lives within 100 miles of the U.S. border and our industries and
populations travel back and forth across the border in an integrated economy, it
makes no sense whatsoever to approach this issue without the full support and
cooperation of the administration of the United States.
Senator Cordy: What happened to "made in Canada"?
Senator LeBreton: I am glad the honourable senator asked, because I am
about to read into the record some of the environment issues where we have taken
Senator Tkachuk: Hear, hear. Please do.
Senator Moore: Dispense.
Senator LeBreton: We support the Copenhagen Accord, as I mentioned,
which includes all the world's major emitters, and we continue to work
constructively toward a binding, post-2012 international agreement. We are
working, as I said a moment ago, with the United States on common North American
standards for greenhouse gas emissions for passenger cars and light- and
heavy-duty trucks. We recently tabled the first Federal Sustainable Development
Strategy, which provides a government-wide approach to improve environmental
sustainability. We established renewable fuel content regulations for gasoline.
These are all issues where we have taken leadership.
We are moving forward with tough new regulations on coal-fired electricity
generation, which I mentioned a moment ago. We protected nearly 90,000 square
kilometres of natural areas in national parks, an increase of 30 per cent. These
areas include the sixfold expansion of the Nahanni National Park Reserve and the
creation of the Gwaii Haanas in B.C., the first ever marine conservation area.
Some Hon. Senators: Hear, hear.
Senator LeBreton: Working with the Nature Conservancy of Canada, our
$225 million Natural Areas Conservation Program has secured over 138,000
hectares, including protecting habitat for 79 species at risk.
We introduced the country's first national standards for wastewater
management and made significant investments through our Action Plan for Clean
These are all issues this government took leadership on — something that was
never done in the 13 years when the honourable senator was in the government.
Hon. Tommy Banks: Honourable senators, on a happier note — well, it is
not all that happy.
Honourable senators, the government has said, as I understand it, the
principal reason for its refusal to support the Canadian bid for Expo 2017 is
cost, and that it feared that the federal government's cost would be in the
order of a billion dollars.
However, on November 2 and 3, four weeks ago, safety and security
representatives from all three orders of government met in Edmonton to review
the security and safety costs for Expo 2017. This meeting was a due diligence
review by federal, provincial and municipal security officials.
The resulting revised Expo 2017 consolidated security profile represents the
costs allocated across all budgets for safety and security. The total budget is
$91 million in escalated dollars. That amount is based upon due diligence
conducted by the responsible agencies and representatives of the federal and
provincial governments and the City of Edmonton. It includes the safety and
security costs of the capital and operating budgets shown in table four of the
consolidated security profile. It includes policing, fire and emergency medical
services that had been shown previously in other budget sections. The amounts
have been consolidated and come to $91 million.
That amount includes all security and safety costs including fencing;
security lighting; access control gates; vehicle screening; overhead lighting to
support all the security elements; training of the security people; radios for
security people; site communications; master security system; X-ray machines;
metal detector gates; safety and security personnel for 120 days including site
lock-down before and subsequent to the fair; security equipment for five or six
months including installation, operation and dismantling; and various other
items set out in the consolidated security profile.
This safety plan, which was vetted by all orders of government, provides
detailed principles to the development of the comprehensive safety and security
plan. The plan provides that the Edmonton Police Service is the lead and does
not require external resources for policing, and that it is responsible for
leading an integrated and planning command module for all orders of government.
The security role of the Government of Canada is limited to matters within
its jurisdiction exclusively: protection of internationally protected persons,
national security investigations, threat assessments and border and entry, the
costs of all of which are set out in the agreed budget.
The due diligence review on November 2 and 3 by those three orders arrived at
the mutual conclusion that Expo 2017 is a low threat level event. Air support is
not required. Those budget numbers resulting from the November due diligence
meetings, to which I have referred, are: The Expo corporation's share is $64
million; the City of Edmonton's incremental costs are $8 million; the Province
of Alberta's incremental costs are $8 million; and the Government of Canada's
costs — including federal coordination and oversight, RCMP, internationally
protected persons, Canadian Security Intelligence Service and Integrated Threat
Assessment Centre threat assessment and Canada Border Services Agency border and
entry costs — are $10.9 million, for a total of $91 million.
Can the leader please explain how it is possible that Mr. Flaherty can
derive, even applying the wildest imaginable escalation factors, that the budget
could possibly reach $1 billion?
Hon. Marjory LeBreton (Leader of the Government): Honourable senators,
we have many examples, and everyone puts out figures in advance that often turn
out not to be the case.
However, in the case of Edmonton's bid for Expo 2017, I can assure Senator
Banks that we had a long, hard look at this proposal and came to the conclusion
that it was too expensive.
We have been clear, and the Minister of Finance has been clear, that our
economic recovery is fragile. We are performing well, but we look at what is
happening in the world and we have to take our recovery in the context of what
is happening in the world.
We are entering the next phase of Canada's Economic Action Plan, as
honourable senators know. The Minister of Finance has said that our government
will not make any new significant spending commitments.
As I have said before, and I know people can argue figures six ways from
Sunday, it is expected that this investment would cost up to $1 billion once we
factor in the cost of the security and other federal obligations.
Again, as I mentioned to the honourable senator, we carefully reviewed the
proposal. We are concerned about the high costs and decided that we cannot
support the bid and that the prudent thing to do was to advise the City of
Edmonton that we were following that course of action.
I believe, honourable senators, that Canadians support the government's
economic recovery package. To continue with ramping down on our deficit, I
believe that all of us have a responsibility to be prudent with taxpayers'
I believe, honourable senators, once people look at this decision after the
emotion has been removed from the equation, people will decide that this
decision was the right one in the interest of Canadian taxpayers, including the
good taxpayers of Edmonton and the province of Alberta.
Senator Banks: Allow me to put the question in a different way, then.
I refer specifically to the numbers that Mr. Flaherty put out which were, we
agree, about $1 billion. I read out the budget, which required the input from
the Government of Canada, agreed to in a process of due diligence by all three
orders of government, for an amount of money having to do with security and
safety, including RCMP, CSIS, ITAC, CBSA, and the lot, a thousand times less
than that — a thousand times less. There can be accounting mistakes, and I can
even see someone misplacing a decimal point, but not by three zeros.
Would the minister undertake to explain to the house, at some future date,
but soon please, the process by which in early November the federal, provincial
and municipal governments agreed that the contribution of the federal government
with respect to security and safety would be $10.9 million, and on the other
hand, four weeks later Mr. Flaherty said that we cannot afford it because it
could cost up to $1 billion?
I would be grateful if the minister could, at some future time — feel free to
take this question as notice — explain that to us.
Senator LeBreton: The various figures bandied around are interesting,
but I do not think even a person as weak as I am on the subject of mathematics
would think that the federal government could have been engaged in a project
like this one for the cost of $10 million.
Cabinet looked carefully at this proposal, seriously considered it, and came
to this decision as we work our way out of the worldwide economic recession and
ramp down on the expenditures we made in order to keep Canadians in their jobs —
420,000 or so have been created. This decision was a difficult one to make but
it was the right decision.
I believe, honourable senators, this decision is supported by the Canadian
taxpayer, and I believe it will be supported by the good citizens of Alberta and
At the moment, I realize that emotions are being expressed in the various
news media. Minister Rona Ambrose has taken the brunt of some of the criticism.
However, the minister is a responsible minister in the cabinet. I believe she
looked not only at the interest of Canadian taxpayers but also at the interest
of Alberta taxpayers.
Minister Moore went to Alberta and made the announcement. It was a smart
thing for him to do. He was completely honest and upfront with the good citizens
of Edmonton, of Alberta and of Canada that our first and foremost responsibility
is to be mindful of taxpayers' dollars.
Senator Banks: I agree that Minister Moore was there. I do not think
that Minister Ambrose made this decision; I do not think that for a minute.
I know a lot — it is one of the few things I have learned here — about the
quality of the people who work in security and safety matters on behalf of the
Government of Canada. I know many of them personally. It is a sad thing to
suggest that those representatives of the RCMP, CSIS, ITAC, CBSA, et al., who
participated in the making of this budget, are sufficiently incompetent — and I
know that they are not — to have been wrong by a factor of 1,000.
I reiterate my question and ask the leader to please find an explanation. It
is not mathematics; it is arithmetic.
Senator LeBreton: I want to make it clear that in no way has the
government, nor would the government, question the professionalism of our
security forces, whether they are with CSIS, the RCMP, CBSA or whatever.
The government looked carefully at this proposal and factored in all the
costs that would eventually fall to the federal government and came to the
conclusion that it was not in the interests of the Canadian taxpayer. Indeed, we
have reason to believe that, once the emotion of the decision has receded, the
citizens of Alberta, the citizens of Edmonton and the taxpayers of the country
will support this decision.
On the Order:
The Senate in Committee of the Whole in order to receive Ms. Jennifer
Stoddart respecting her appointment as Privacy Commissioner.
The Hon. the Speaker: Honourable senators, pursuant to the order
adopted yesterday, I leave the chair for the Senate to resolve itself into a
Committee of the Whole to hear from Ms. Jennifer Stoddart respecting her
appointment as Privacy Commissioner.
(The Senate was accordingly adjourned during pleasure and put into Committee
of the Whole, the Honourable Senator Fortin-Duplessis in the chair.)
The Chair: Honourable senators, rule 83 states:
When the Senate is put into Committee of the Whole every Senator shall
sit in the place assigned to that Senator. A Senator who desires to speak
shall rise and address the Chair.
Is it agreed, honourable senators, that rule 83 be waived?
Hon. Senators: Agreed.
The Chair: Carried.
I remind honourable senators that, pursuant to the order adopted yesterday,
the committee will meet for a maximum of one hour. I also remind honourable
senators that the allotted time for each senator and the response from our
witness will be 10 minutes.
I invite our witness to enter.
(Pursuant to the order of the Senate, Jennifer Stoddart was escorted to a
seat in the Senate Chamber.)
The Chair: Honourable senators, the Senate is resolved into a
Committee of the Whole to hear from Ms. Jennifer Stoddart respecting her
nomination to the position of Privacy Commissioner.
Ms. Stoddart, I thank you for being with us here today. I invite you to begin
your introductory remarks, which will be followed by the senators' questions.
Jennifer Stoddart, Commissioner, Office of the Privacy Commissioner of
Canada: Thank you, Madam Chair. Good afternoon, honourable senators.
Good afternoon. It is a tremendous privilege to be in this beautiful chamber
to answer questions about my nomination for reappointment.
I very much appreciate, honourable senators, the government's confidence in
me to continue on in the role of Privacy Commissioner of Canada and to have a
chance to build on the important work my office has been doing over the past few
years. It has been an incredible honour to serve Canadians and to serve
Parliament. The last seven years have been, for me, a passionate journey.
Honourable senators may recall that, back in late 2003, I took over an office
that was only beginning to recover from an extremely difficult period in its
history. Our administrative powers had been seriously curtailed. Part of our
budget was about to lapse. We were being investigated by the RCMP, the Auditor
General and others. It took a lot of hard work, but we got our house back in
order and returned our focus to where it should be, on privacy protection. Since
then, the massive challenges that have emerged in a compressed time frame are
nothing short of astonishing. Technological advances have brought us social
networking, You Tube, Foursquare and any number of other novel and new ways to
Personal information has also become an increasingly valuable commodity for
private sector organizations. Meanwhile, governments around the world are
collecting more and more of our personal information as part of national
security and law enforcement initiatives.
The worldwide flow of data has become instantaneous and constant. I am
extremely proud of our achievements in the face of these and many other colossal
challenges, but the privacy threats we continue to face are immense. There is
still much to do, and so I would focus on a few areas: leadership on priority
privacy issues, supporting Canadians' organizations and institutions to make
informed privacy decisions and certainly service delivery to Canadians.
I will now move on to leadership on priority issues. The online world has
been something of a wild frontier for privacy protection. As Canadians live out
more and more of their daily lives in this digital environment, it is clear that
is where we need to be focusing much of our attention. We have already begun
As you know, we have had ongoing discussions with online giants such as
Facebook and Google. Currently, we are conducting investigations into further
complaints about Facebook, a site targeting children and an online dating site.
These are important issues when you consider the role the Internet plays in our
lives. I recently read that one in four American couples who met since 2007
first met online.
Looking ahead, we need to continue to develop a deeper understanding of
privacy issues in a digital world. Our recent public consultations on online
consumer tracking and cloud computing are a good example of that. Continued
cooperation with our provincial, as well as our international, colleagues will
also be critical to our future success.
We should also continue to build on our expertise by hiring more IT
specialists and creating links with outside experts. Another ongoing strategic
priority relates to the privacy implications of national security and law
enforcement measures, which raise the potential for extremely serious
consequences for individuals.
Privacy is not an absolute right. Indeed, there may be cases when privacy
protections must give way to protecting a greater good. However, Canadians
should only be asked to make this sacrifice when it is clear that the promised
outcome — be it safer air travel or catching money launderers — will actually be
achieved and that there is no other less privacy-invasive option that would
allow us to reach this goal.
We have worked with numerous government departments and agencies to introduce
stronger privacy protections into initiatives such as Passenger Protect, airport
scanners, and the RCMP's Exempt Data Banks. We should continue to be vigilant in
Another piece of the privacy protection challenge is ensuring that Canadians
develop strong digital literacy skills. We are using online tools to help
Canadians better understand their privacy rights and to make well-informed
choices in a rapidly changing privacy landscape. We have a website targeted at
youth and a blog. We tweet and we post videos about privacy on YouTube.
Much of our public awareness work is being conducted in collaboration with
others, including teachers, librarians, government organizations and consumer
and business groups.
Partly because I am a former provincial commissioner, I have always seen the
need to build stronger ties with provincial colleagues and other stakeholders
across the country. I want to ensure that the Privacy Commissioner's office is
not perceived as either too Ottawa-centric or unaware of issues outside the
National Capital Region.
We recently opened an office in Toronto, where many of the organizations we
receive complaints about are headquartered. It will also be critical to maintain
regional outreach to all parts of the country and to continue to maintain
cultural and linguistic diversity in the office to be truly responsive to the
Canadians that we serve.
At the end of the day, though, what is most important to me is that our work
meets the needs and the expectations of Canadians. Part of that means also
remaining responsive to the needs of Parliament, of government and of
Looking ahead, we should identify and deliver new service delivery models
that use new technologies to help us maximize our results.
Personally, I am looking forward to the next review of the Personal
Information Protection and Electronic Documents Act, PIPEDA, which starts next
year. It is important in this fast-changing world to ensure that the legislation
and tools available to us continue to be effective.
If reappointed, you can also expect me to continue pressing the urgent need
for reform of our badly out-of-date Privacy Act.
In conclusion, honourable senators, I would welcome the opportunity, if you
see fit, to continue to leverage what the Office of the Privacy Commissioner has
accomplished over the last seven years. I thank you very much for calling me to
address you today, and I look forward to your questions.
The Chair: The first question will be from the Honourable Senator
Senator Dawson: Ms. Stoddart, assuming that your term will be renewed,
I would like to congratulate you on your appointment. As I said this morning in
committee, with a government that seems more inclined to dismiss people rather
than renew their terms, you have achieved something that few of your colleagues
in Canadian institutions have managed to do.
My question is on digital society. We have had debate here in the house about
digital society. When you arrived, Facebook was a concept and Twitter was not
even in anyone's mind. Today, however, both of those organizations have more
information under their control than most foreign states.
You talked this morning in the Social Committee about the fact that foreign
states hold information on Canada, but these two organizations hold in their
data banks more information about youth, in particular. We are digital tourists,
but youth are digital citizens. They live in this digital world. These
organizations have more information on what these digital citizens are doing
every day of their lives and their shopping trends, for example.
When do we accelerate the way we modernize the Privacy Act to recognize the
fact that the technological process is not the same dimension that we had
traditionally here in Canada? We could have a committee studying it, but by the
time the committee finishes its study, a new instrument may exist.
You had a big battle with Facebook, and I want to congratulate you on that.
How do we, as parliamentarians, set up a process by which we start looking
forward or create shortcuts to recognize that this modernization is intruding
into our lives and is not being addressed by parliamentary action?
Ms. Stoddart: Honourable senator, you have put your finger on one of
the fastest growing menaces not only to privacy but also to freedom, namely,
having so much information concentrated in the hands of commercial enterprises
that are without Canada. Various people are thinking on this trend.
In the short term, parliamentarians can do quite a bit. Fortunately, a bill
will soon be coming to your attention; I believe it is Bill C-29, the anti-spam
legislation. Fighting against spam is long overdue in Canada. We are about five
years behind the other G8 countries. Tacked onto that bill are some important
modifications of my power to give me discretion to refuse complaints that are,
perhaps, not as relevant to privacy matters as they could be, and to cooperate
If I have more powers to cooperate internationally, I can share more of my
files with my international colleagues. Increasingly, data privacy commissioners
or their equivalent, consumer protection authorities in the United States,
realize that because of the global reach of these new technologies, we have to
have a global response, certainly in democratic nations. Increasingly, we are
working in a network, and it is important to enhance and speed up enforcement,
because, as you said, these things are happening so quickly. If, for example,
they are coming from the United States, as they are now, it is important for me
to be able to form a working relationship with the Federal Trade Commission,
which can then take enforcement action, if it sees fit, under its own
I have heard that the bill will be coming to you in the next few weeks, and
turning your attention to that will be a huge contribution.
Next year is the review of PIPEDA, our private sector privacy legislation
that governs these phenomena, and, again, it is due for some significant
Senator Dawson: You talked about the anti-spam bill. You will be
welcome at the Transport and Communications Committee because it will be debated
there. We will give you as much time as the government will permit us to give
you so that you are not treated as you were this morning.
We are five years behind in anti-spam legislation.
Ms. Stoddart: Roughly, yes.
Senator Dawson: Is that because some countries have a different
process of catching up on this legislation? I recognize the fact that we have
had five years of minority governments, but are we behind for other reasons?
Ms. Stoddart: I cannot speak to the process of policy-making closely
enough. I know that most of the G8 countries adopted anti-spam legislation
around 2005. I think Australia adopted it two years ago, but that is not
traditionally considered a G8 country.
Senator Munson: I have two questions for you. Do you have enough money
in your budget to do the job you want to do?
The second question is sort of the Gordon Sinclair question: How much do you
make? You can be honest and forthright here. Obviously, we are going through
this process and we will confirm you. It is part of the process. It is open,
public and transparent.
You spoke about opening an office in Toronto. What was the rationale behind
Toronto? Why not Montreal? Are you contemplating Montreal, Halifax or Vancouver?
I am a firm believer that if you bring your operation to the people, people
understand exactly what you do.
Ms. Stoddart: Are those three questions, honourable senator?
Senator Munson: They are three now.
Ms. Stoddart: First, on the budget, we have been fortunate to have had
budget increases, once we got our house in order, as we needed it, through the
parliamentary committee review panel process over the years. We have been
fortunate that as we were given new tasks, such as the auditing of FINTRAC or
our new anti-spam responsibilities, we were given additional monies.
I consider that we do have a reasonable budget. Of course, anyone running
government agencies says, "I never have enough money," but I do think we have a
reasonable amount of money. We are trying to maximize the use of what money we
have by innovative ways of doing business and by information technologies.
However, we do have a problem with the freeze on travel that was recently
decreed by the government. I repeat that we have enough money, but the fact that
our travel budget was arbitrarily frozen at its level two years ago hampers us
in terms of communicating with and going to our Toronto office, as well as in
the international work that we are increasingly asked to do. Canada is asked to
take leadership of various committees. I repeat that it is not that I do not
have the money; I am just not allowed to spend it on travel.
As an agent of Parliament, I have written to the head of the Standing
Committee on Access to Information, Privacy and Ethics pointing this out and
wondering if it would be possible for agents of Parliament to have more
flexibility — not more money — in the allocation of the budget.
Second, my salary is the salary of a federal court judge, and someone from
the Privy Council — because we get our automatic deposits — told me this morning
it is $271,000 and change.
Senator Munson: The Senate pays the expenses of witnesses from across
the country who appear before our committees. We also have teleconferencing.
Would you like to have something in your budget for people from different parts
of country who would like to sit down with you and your colleagues to present
their case to you, as opposed to submitting something in writing?
Ms. Stoddart: Yes, we would. I think that goes to your third question
about why Toronto and what about the rest of Canada.
First, as to Toronto, it is the commercial centre of Canada. There are other
important commercial centres, but Toronto is the largest one. It is a large
centre for information technology. It is also where three quarters of the
businesses that we have complaints against under PIPEDA are located. We want to
be part of an informal hub of privacy issues that relate to the application of
technology by big business there. We want to be closer to some of the
organizations that are headquartered there, and we want to be close to some of
the important work that is going on there in universities such as Ryerson
University, University of Toronto and so on.
We did have, and will continue to have, a regional presence in the Maritimes.
That is not necessarily a bricks and mortar office, but it is expensive to set
up in terms of government regulations. We had a person on a contract for two
years working full time in the Maritimes. We also have an ongoing informal
arrangement to use the Calgary office of Alberta's Information and Privacy
Commissioner, and we are looking at increasing our Western presence, perhaps in
British Columbia as well.
We are looking at innovative ways of doing that because of the travel costs
in Canada and the costs of opening offices. In fact, still within the limits of
our budget, we are trying to purchase more technology that will allow us to use
Skype, video conferencing and much more, so that we can stay in touch more
easily and much better with people across Canada.
Senator Kinsella: A moment ago, Ms. Stoddart, you used the phrase that
you were "an agent of Parliament." Could you share your reflections with the
house as to how you view the relationship of the Office of the Privacy
Commissioner with Parliament?
Ms. Stoddart: I report to Parliament. Parliament, for all intents and
purposes, is my boss. I do not have a minister. I do not have a deputy minister.
I appear before the parliamentary review panel if I need an increase in my
budget; that is an all-party panel that was set up under the auspices of the
Speaker of the House of Commons. I attempt to serve Parliament within the
confines of the mandate given to me under the Privacy Act and PIPEDA. I come to
Parliament whenever Parliament summons me or when I wish to exchange with them
on any privacy matters that are within my mandate.
Senator Kinsella: Do you have any suggestions that you would like to
make to honourable senators as to how one might create a more fluid flow of
information between the Privacy Commissioner's office and either house of
Supplementary to that: In the past, what are some of the obstacles that you
have experienced in your relationship with Parliament? What are some of the
areas of improvement?
Do you consider yourself an officer of Parliament; if so, how, as an officer
of Parliament, do you know what Parliament's intent is on any issue at any
moment of time within the context of your legislative mandate? Are there ways in
other jurisdictions that the communication is far more free flowing back and
forth between a Privacy Commissioner and the legislative body of which the
commissioner is an agent?
Ms. Stoddart: In terms of the free flow of information, some senators,
I believe, have asked to be put on our newsletter to get informal, automatic
updates from us. We would welcome the opportunity to give you more information
about what our office does. I just did this for the House of Commons; I think it
is perhaps the third time I have done it.
We are talking about running a seminar on privacy law to be part of a
continuing legal education requirement for people who are lawyers. I would
welcome the opportunity to come and tell senators in more detail what my office
does and to answer any particular questions they have about any kinds of privacy
I must say that I have not noticed that there are huge obstacles in our
relationship. From my point of view, having a parliamentary liaison committee is
very important, and we try to answer your requests, your letters and so on, as
soon as possible. Perhaps you have noticed some obstacles and, in that case, I
would like to hear them so we can smooth them out.
I have always found both houses of Parliament receptive to my message, which
is not always an easy or welcome message in the context sometimes of very
important legislation. However, I have always found that parliamentary
committees have listened intently.
How do I know what is the wish of Parliament at any given time? Perhaps
because neither act has been amended very recently, to a great extent, I
continue to take my mandate from the last piece of legislation that Parliament
handed down on this matter. We supplement it, of course, with ongoing
discussions with departmental officials on specialized areas — for example,
airport safety and things like that.
That has been my experience. Perhaps the honourable senator has some
Senator Kinsella: These officers of Parliament have developed over the
last few decades. One needs to ask the question as to who sets the priorities
within the context of the legislation on the programmatic side of things.
Is the paradigm one whereby the commission sets the priority on a day-to-day
basis and tells Parliament about that and reports in other ways; or is it the
role of Parliament to say this is the area of priority in the subject area —
privacy, in your case — and you are an agent of Parliament and therefore you
should follow the priority that is set by Parliament, rather than the other way
I am not sure what the paradigm is and whether or not we need a paradigm
shift. Could you comment on that?
Ms. Stoddart: Yes, that is a fair question, within the context of the
fair amount of independence that agents of Parliament do have. This
independence, though, is not total. As I say, I do report to Parliament. I
appear often — probably more frequently than I do before the Senate — before the
Ethics Committee. I submit my report on plans and priorities once a year to the
Ethics Committee. We are just starting to work on that now.
That is the time at which the House of Commons, at least, approves my
priorities and then subsequently approves the budget that goes with it. If there
is a priority that Parliament would like me to follow, it has that opportunity
to do it.
Over the years, in terms of appearing before the ethics committee, often they
have asked us for a lot of information and suggested, in particular, ways that
we can deal with personnel issues, given that it was a constant challenge. We
have followed those suggestions and reported back to them.
In short, honourable senator, I have to have the approval of Parliament for
my plans I submit to Parliament. Parliament can refuse or suggest or say, "We
would like you to look at another priority."
Senator Tardif: Ms. Stoddart, in your 2009-10 annual report to
Parliament, you mention that the Privacy Act has never been modernized in 27
years of existence. You still hope that this legislation will get a makeover.
First, can you tell us what sections of the act would need to be modernized?
Second, I would like you to tell us about the risks Canadians face in protecting
Ms. Stoddart: Thank you, senator. There are many aspects to this
legislation that could use a change. Among the most important is the lack of a
mandatory requirement to conduct a privacy impact assessment, which should be
carried out far enough in advance before a program is implemented, in order to
minimize any possible risks to Canadians' privacy.
Second, there is the issue of access to justice for Canadians who have
problems or concerns with regard to privacy. Currently, under this legislation,
a person has access to their file only and they can request to have it
corrected. However, if the department or agency does not cooperate with our
requests, we can only ask the Federal Court to determine who will prevail when a
file access request is denied.
Access to justice is more limited there than it currently is for consumers
who do business with companies governed by another law that I administer.
Some cases were brought to our attention in which Canadians suffered harm as
a result of a variety of wrongdoing, such as the misuse of personal information
by government employees. It would be reasonable to give citizens who have been
harmed by the government's actions access to justice in that way.
Senator Tardif: Does the Department of Justice support your request to
modernize this act?
Ms. Stoddart: The Department of Justice has decided not to start its
work right away, but encouraged us to work informally with the departments and
agencies to advance the agenda for privacy reform. That is what we are trying to
do on a voluntary basis.
I believe that the Department of Justice also confirmed that we have an
education mandate under the Privacy Act, something that was not completely clear
before. Therefore, although we have this information, there is no overall plan
for reforming the act.
Senator Moore: Ms. Stoddart, thank you for being here. I want to join
in the remarks of Senator Dawson commending you for your work, particularly with
regard to these large information-holding parties outside of Canada.
You mentioned that one of your priorities is defending the privacy rights of
Canadians. What are your thoughts regarding the government bill in the House of
Commons, I believe, whereby air carriers would be required to provide to the
U.S. Department of Homeland Security with personal information about passengers
who pass over U.S. land but who do not land there?
I do not know if we have had any kind of request for a similar arrangement
with other countries. Is there reciprocity involved here? Once such information
gets in the hands of the Department of Homeland Security, where else could it
go? Could it go to other departments in the U.S. or other nations? Could you
comment on that, please?
Ms. Stoddart: Yes, honourable senator. We were asked to appear before
the House of Commons Transport Committee on this subject. I believe that was
just last week, so we do have a complete version of our comments.
I would just say that we are indeed concerned about this additional
collection of Canadians' personal information. We had worked with the government
to try to see if there could be an exception for this with the Department of
Homeland Security, but unfortunately there could not. That being said, it is the
right of a sovereign state to control the airspace above it, so I do not think
there is any kind of legal basis to object to this. This is a condition set for
overflying of American space.
However, we urge the government to continue in its representations to the
American government to seek to strengthen some of the protections for Canadians'
personal information that will, as you say, find its way into the Department of
Homeland Security database, particularly to strengthen what one could call
"appeal measures." For all intents and purposes, I understand those now take
weeks if one has to go through that process. We also urge the government
undertake an information campaign to tell Canadians about this so that they do
not find themselves stranded in an airport, refused permission to overfly the
United States, and that they think about this in advance.
Regardless, it is a growing trend. It is a curtailment of the freedoms that
we have always enjoyed in flying. I cannot speak to reciprocity for the moment
in terms of whether or not Canada is planning to do the same for American
overflies. However, I know the European Union is thinking about doing that, too,
and having a similar program for the overflying of its own space.
Senator Moore: To your knowledge, are there agreements in existence
whereby other parties or states could contact the U.S. Department of Homeland
Security and request information that involves Canada and Canadian citizens that
it might have on file through this proposed legislation?
Ms. Stoddart: In the American regulations that will put this measure
into force, there is a specific clause that allows the Department of Homeland
Security to share this information widely. I believe it is at its discretion. It
may do so not only with other departments within the American government, but
with other American levels of government, with private corporations, as well as
with foreign governments and international organizations. Even "tribal
governments" is set out in this regulation.
Yes, it can be shared widely. Once the United States has the information, I
believe sharing said information becomes its prerogative under its own law.
Senator Moore: What do you think of that?
Ms. Stoddart: As I have said before, this is a very worrisome new
trend. I believe the Canadian government has made strong representations to the
American government. I think we have to closely follow how it is administered.
We have seen misuse of information in the hands of governments in the past. This
may happen again.
I am very concerned about it. As you know, national security and public
security issues are one of our four priorities and we will continue to follow
Senator Moore: Thank you.
Senator Dallaire: Welcome to the Senate, Ms. Stoddart.
I have two questions. You are obviously very familiar with the fact that
Department of Veterans Affairs information was used by various offices for God
only knows what.
What methods do departments use when it comes to accessing information of
Are legislative changes required to ensure that this does not happen again?
The damage is done, but how can we ensure that the bureaucratic machinery of
government does not abuse its privileges?
My second question is this: what happens if Google goes rogue? I know there
is a strong debate between the Harvard Library and Google on all materials that
are now out of print. It also pertains to the authorities Google seems to have
to go into all the historic research material, not only to scan it
electronically, but also to be able to decide what it wants to take in, which
includes the content.
To that extent, what protection do we have against some of that material
being fiddled with or maybe not being held truly accountable?
Ms. Stoddart: Those are two excellent questions. Thank you, senator.
I will first talk about the mechanisms in place within the departments. In
general, privacy protection mechanisms within the departments are satisfactory.
Leaks, problems and abuses are the exception, not the rule.
Generally speaking, the person responsible for the access to information and
privacy unit plays a key role in upholding the standards, which are quite clear.
This includes both the Privacy Act and the Treasury Board's directives for
It seems that when the events in question happened at Veterans Affairs, the
culture there was to ignore the directives, laws and practices. The type of
behaviour that was reported in the case you mentioned is very rare.
I do not think that the legislation needs to be amended. I believe that
Veterans' Affairs needs to comply with the law according to the policies and
practices, and it must follow up and require its officials to obey them.
Your second question is an increasingly important one for the future now that
much of the democratic world's information will be in the hands of Google. I
understand that the Harvard and Vatican libraries will be scanned by Google. As
you say, what happens if Google goes bankrupt or a certain interest takes over a
controlling number of Google's publicly traded shares?
I think the situation is serious. Fortunately, data protection commissioners
are looking increasingly at these questions. Google and other entities are in
the United States, and basically the ball to look at this issue is in the camp
of the United States. Fortunately, they are increasing their efforts in this
area. Both the Federal Trade Commission and the Department of Commerce have been
conducting extensive consultations on how to regulate this new type of commerce,
and their positions will come out in December.
Coming back to the answer that I gave to the question about why it is
important for my office to form international alliances, through alliances with
data commissioners in the European Union, for example, we form a critical mass
to bring influence on the rising market for information technology. I do not
think that Canada alone is a big enough market to make a lot of difference, but
with allies around the world we can make comments and try to control the
excesses of some of these new giants.
Senator Dallaire: Since Gutenberg, all humans have had the right to be
able to read and to access books. That is why we have libraries, et cetera.
With books and other written material becoming increasingly electronic, do
you foresee that in the future, unless people are in the wired system or part of
whoever is controlling the electronic material, they will not have free access
to reading material?
Ms. Stoddart: Yes: That is a huge problem in a country that is as
sparsely populated and geographically distant as Canada. This issue is being
looked at in the blueprint of the Ministry of Industry for a digital economy. I
do not know that anyone has the exact answer, because Internet service providers
tell us that it costs a lot to bring service to a remote population of 200
people. Many people are putting their heads together to see how to avoid this
Digital literacy for seniors, and education for young people in how to use
the Internet and how to behave with respect to the consequences of what they
leave on the Internet is also an important part of Canada's future, and one in
which my office wants to play its role.
Yes, there are huge problems around the fact that information increasingly is
consigned to the web. There is, finally, a question of freedom. We have had
censorship in many societies, but now it is the exception rather than the
standard. Observers talk about a new form of censorship. If the information is
available online and people find it easy to go to big online stores, companies
will promote the books and information that are in their library. We will not
have the range of selection that we had formerly in our university libraries,
municipal libraries and public libraries.
How much of Canadian literature will be accessible online?
Senator Dallaire: Who should take the lead within government?
Ms. Stoddart: I believe the Minister of Industry, who generally has
competence in this issue, is already looking at it.
Senator Dallaire: Thank you.
The Chair: Honourable senators, time is running out. I will see
Senator Runciman, followed by Senator Andreychuk and Senator Baker. I would ask
you all to be as brief as possible, so that Senator Segal may have an
opportunity to ask his question.
Senator Runciman: I have only one question. In your opening you talked
about the tools you have in your legislation. Can you speak a little more about
whether you need additional tools?
I saw a press report that said that the CBC appears to be treating your
legislation and your office, not to mention the taxpayers, with disdain with
respect to the cost associated with the development of a new theme song for
Hockey Night in Canada. It strikes me that this is simply an effort on the part
of the CBC to save them from embarrassment with respect to the significant cost
associated with this theme song.
When a Crown corporation or any arm of government that you oversee with your
legislation deals with a request for information in this manner, what avenues
are available to you for further recourse?
Would you like to have additional tools made available to your office to deal
with bad actors, as appears to be the case here?
Ms. Stoddart: I have relatively few powers under the Privacy Act in
terms of recalcitrant agencies. I can take them to Federal Court only if they do
not give out information that I am of the reasonable opinion they should give
out. That power is rather limited.
I can ask the Federal Court for redress when I think that principles under
the Personal Information Protection and Electronic Documents Act have been
violated. However, that situation happens infrequently. Most parties prefer to
The question that you posed is relevant going forward, honourable senator,
because most data protection agencies around the world are modifying powers or
acquiring new ones to deal with huge new challenges, particularly the challenge
of the large actors who now play in the privacy arena.
I have commissioned a paper written jointly by Professor Lorne Sossin, the
Dean of Osgoode Hall, and Professor France Houle from the University of
Montreal, on what kind of powers we should have in the private sector for the
future. This paper will be on our website as soon as it has been translated.
Broadly speaking, Professor Sossin and Professor Houle raise the issue of
explicit guideline-making powers, so that the standards will be much clearer,
and the possibility of order-making powers such as all the large provincial
commissions have, which I do not have.
Senator Andreychuk: I wish to add my words of appreciation for your
work in the past.
My question builds on what Senator Runciman has said, the issue of what is
privacy today. The systems that we built over the last 100 years were to protect
people against governments. We were hopeful that these systems would trap most
of the problems. It seems that we are now still working on the classifications
of privacy for print and departments. It seems to me that it is time to look at
For example, when I started working with the adoption of children, anything
said on a file was held private. That was deemed to be in the best interest of
the child. We woke up to find out that is not in the best interest of the child
because it is teaching the child a double standard.
One is also protecting information that may be libellous or slanderous.
Therefore, we opened it up; it was better for society to do so. We are on the
edge today, whereby we have to define what we mean by "privacy"; who protects
it; and how it is protected. That is something different than what I hear from
you — perfecting what we already have. It seems we need to have a total relook
at it. Are you contemplating that beyond the two professors?
Ms. Stoddart: Yes. I am sorry if I did not make it clear that one of
the things I want to continue to work on and perfect is our interrogations about
the changing nature of privacy. That is caught under our fourth principle,
identity integrity, which is an obscure name for talking about that very
phenomenon: How does all that technology impact on people and on society? Is it
changing the way we behave? I would say, yes. How do we deal with that? Is that
good or is that bad? As we live our lives increasingly online through censors,
video surveillance, bio-metrics, voice recognition, and so on, how does this
change the nature of society? Do we still have a kind of privacy? What can we do
to protect it?
I would add that our work on Facebook is an example of us seeing that a
priority must be given to new types of human experience and new types of
information exchange. As I mentioned, we are investigating an online dating
site, which is a new but significant development as many people use them. Maybe
you know people who use them; they are very popular.
Genetic information sites are also very popular. What kind of personal
information are they getting from us? Are they keeping it? Where is it going, et
We continue to push these new frontiers to have answers before a situation
becomes truly critical.
Senator Andreychuk: I leave you to ponder this: We are demanding
information and a paper trail, as we used to call it, or a documentation of
actions by government officials, whether they are political or civil. At the
same time, we are saying that they must keep certain things confidential when
others have access to the same facts and do not have to keep them confidential.
It sets up a double standard in many ways. I hope that you are looking at the
expectations of employees, the public service, et cetera, vis-à-vis the reality
of what is happening in today's world, which was not there in the past.
Ms. Stoddart: Yes, we will attempt to do that.
Senator Baker: I have a general question for the commissioner. I would
like to congratulate her and her department for the job that they have been
doing with a relatively small number of employees. Given the magnitude of your
recent work, I do not know how you deal with all these matters.
Of course, your decisions on Personal Information Protection and Electronic
Documents Act, PIPEDA, can be found online at Westlaw Carswell and on Quicklaw.
Those sites have the decisions numbered and identified separately We also know
about your work through decisions of the Federal Court.
You referred to revisions that you consider to be necessary to the Privacy
Act and to the Personal Information Protection and Electronics Documents Act. I
imagine that one of the major considerations in the Privacy Act today would
relate to your jurisdiction in the investigation of matters that affect
Canadians but have their grounds in some other nation, such as the United
States. That, however, would be rather obvious today.
I would like to ask you about PIPEDA, because it affects a whole range of
ordinary Canadians who had their local bank disclose some private information to
another bank or a telephone company. Your adjudications over the communications
companies that are federally regulated did not start until January 1, 2001. You
have talked about making changes to PIPEDA to make it more effective. If I
understand, you have said that you should be able to lay down a pattern that the
industry should follow to arrive at the solution.
I have read your cases. Someone complains that a company disclosed their
private information. You then send an investigator to investigate the matter.
You talk to both sides. Usually, those matters are resolved and your
investigator makes a report. In some cases, there is even a civil settlement. If
a bank has disclosed information, it might decide to settle on a monetary figure
without having to litigate the matter before the court. This is all done within
What new powers will you have? Your big review of the act will be this coming
year. Could you be more explicit when you say that you need other powers to be
able to adjudicate these matters more effectively?
Ms. Stoddart: Thank you, honourable senator. The most urgent powers
are found in Bill C-29, which I hope will soon come before the Senate, and they
include discretion in order to have greater leeway in investigating complaints.
Quite a number of complaints come to us every year. Given that personal
information is involved in everything we do, the real nexus of the affair is not
necessarily the misuse of personal information.
For example, we have a lot of family issues, family disputes, marriage
breakups, families fighting over wills and successions, and so on. Some personal
information is involved in such cases, therefore they come to our office. We
have few reasons to say that we perceive a problem when the case is already
before the courts or family services or another place. This change would be very
welcome because, as the Nova Scotia Court of Appeal said yesterday, often the
issues are not issues of PIPEDA. In this case, it was a wrongful dismissal. This
was a case that we did not take to court and the complainant went alone.
Discretion is a huge step forward and it is something we would like to have as
soon as we can get it.
As well, the powers would include the flexibility to share what we do in our
office and to share, if necessary, the personal information of Canadians with
our counterparts. According to the way PIPEDA was set up in 2000, I could share
that information only with substantially similar provinces, which are Quebec,
Alberta, British Columbia and Ontario, when there is a health care issue.
Given the way that people use the Internet today for travel and getting
involved in things, their personal information is everywhere. If they want us to
help them with it or to set up a memorandum of understanding, I need the
explicit power to talk about the details of what I do in terms of my operations
and, if necessary, to hand over a case with the complainant's permission to
another country where, for example, the respondent banker or whoever will follow
up. Those are the two things that we would like to have immediately.
As for the long term, next year will be a time for study and reflection. We
will start that next month. I have spoken about one study, but there may be
others. We will bring together a committee, put out a position paper and ask for
Senator Segal: I share all honourable senators' strong sense of
appreciation for the work done by you and your contribution.
Over the last few years the customs form has changed. One of the things that
exists along the side is a statement that says, "Information provided in this
documentation may be shared across other government departments." Historically,
when customs was a part of CRA, it was deemed to be part of your tax file which
could not be shared with other departments, except for law enforcement purposes.
Do you get consulted when these kinds of changes are made? Do you get to give
your point of view? Is your office able to assure us that no unnecessary or
fishing violations of people's privacy occur as a result of this?
My second question is: If some day a government were to decide to do reverse
onus on freedom of information, in other words the assumption being that all
government data would be made public on a 90-day basis all the time, available
on a public website, with the same protections that now exist — privacy, third
party negotiations, federal-provincial relations, national security — would that
cause you a priori core issues and concerns about privacy, or would you be open
to that kind of consideration provided privacy issues were protected in the
Ms. Stoddart: Yes, generally we are consulted by departments on new
measures affecting privacy. I think that warning sign on the form now is
probably part of the work of our office in order that Canadians know. A big part
of privacy is transparency and being clear with what you are doing with people's
Are there no fishing expeditions? I would like to say they are not, but we
know — I would say particularly because of human error — that in every
department at some point there are mix-ups and slips, and there are rogue
employees, et cetera. Increasingly, the issue for departments is to set up the
kind of IT system that will tell them if people are handling the information
they should or if they are handling information they should not, and this comes
back to the question of a digital audit trail.
As to your second question, I would say, yes, I would have no problem with
that. In fact, I had the opportunity to look at this question when I was
Information and Privacy Commissioner of Quebec. We decided to do a five-year
annual report on access to information, having concentrated on privacy issues
for many years under my predecessor. I was very impressed by what was then
happening in the United Kingdom. They did not have freedom of information laws
but they had just adopted some. The U.K. approach — I do not say in practice now
because there are criticisms of how it works in practice — in theory was
government information should be public except for what is private, what is
national security, what is emergency measures related, et cetera.
We put that in the report and I was happy, long after I had come to Ottawa,
to see the Quebec government adopt that principle and they have just adopted
regulations putting that policy into force. I have not checked out websites to
see how much there is compared to what is done federally. I do not see a problem
in that approach at all. I believe it would simplify the endless requests for
access to information, and the cost and the time it takes for government
departments to sift through them.
The Chair: Honourable senators, I know that you will join me in
thanking Ms. Stoddart for being with us today.
Ms. Stoddart: Thank you for having me here.
The Chair: Honourable senators, is it agreed that the committee rise
and that I report to the Senate that the witness has been heard?
Hon. Senators: Agreed.
The Hon. the Speaker: Honourable senators, the sitting of the Senate
Hon. Suzanne Fortin-Duplessis: Honourable senators, the Committee of
the Whole, authorized by the Senate to hear from Ms. Jennifer Stoddart
respecting her appointment as Privacy Commissioner, reports that it has heard
from the said witness.
Leave having been given to revert to Presentation of Reports from Standing or
Hon. Céline Hervieux-Payette, Deputy Chair of the Standing Senate
Committee on Banking, Trade and Commerce, presented the following report:
Thursday, November 25, 2010
The Standing Senate Committee on Banking, Trade and Commerce has the
honour to present its
Your Committee, to which was referred Bill S-216, An Act to amend the
Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act
in order to protect beneficiaries of long term disability benefits plans
has, in obedience to the Order of Reference of June 17, 2010, examined the
said bill and now reports as follows:
Your Committee recommends that this Bill not be proceeded with further in
the Senate for the reasons that follow.
Your Committee notes that Bill S-216 attempts to retroactively enhance
the priority of claims for unfunded long-term disability liabilities in
proceedings commenced pursuant to the Bankruptcy and Insolvency Act before
the coming into force of the amendments contained in the bill, which may
generate claims that conflict with court-approved settlement agreements
already in force, resulting in litigation that would be detrimental to the
interests of long-term disability claimants including the former employees
Your Committee believes that Bill S-216 would cause companies to prefer
liquidation to restructuring, because it would confer preferred status on
claims for unfunded long-term disability liabilities in liquidation
proceedings, while conferring super-priority status on similar claims in
restructuring proceedings under the Bankruptcy and Insolvency Act; and
Your Committee notes that Bill S-216 would reduce the amount that some
creditors would otherwise hope to recover in bankruptcy proceedings,
increasing risk for investors and financing costs for bond-issuing
companies, which your Committee believes would be detrimental to the
currently fragile growth of the Canadian economy.
This report was adopted in committee on the following vote:
YEAS — The Honourable Senators: Ataullajhan, Dickson, Greene, Kochhar,
Mockler and Plett (6).
NAYS — The Honourable Senators: Eggleton, Harb, Hervieux-Payette, Moore
and Ringuette (5).
CÉLINE HERVIEUX-PAYETTE, P.C.
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
Hon. Art Eggleton: Honourable senators, considering the urgency of the
Nortel people, I would recommend later this day.
Hon. Gerald J. Comeau (Deputy Leader of the Government): No, at the
The Hon. the Speaker: Consent not being granted, it is ordered that
the report be placed on the Orders of the Day for consideration at the next
sitting of the Senate.
Some Hon. Senators: Shame.
(On motion of Senator Eggleton, report placed on the Orders of the Day for
consideration at the next sitting of the Senate.)
Hon. Judith Seidman moved second reading of Bill C-31, An Act to amend
the Old Age Security Act.
She said: Honourable senators, I am pleased to stand today to speak to
legislation that is about justice to so many Canadians. That legislation is the
Eliminating Entitlements for Prisoners Bill.
Canadians across the country were outraged when they learned that inmates 65
years or over are eligible to receive not only the Old Age Security pension but
also the Guaranteed Income Supplement for low-income seniors.
Let me remind honourable senators that the Old Age Security pension provides
relatively modest entitlements in recognition of the valuable contributions that
seniors have made in building our country and communities; and that under the
OAS program, the Guaranteed Income Supplement and the allowances were
established to provide low-income seniors and near-seniors with an additional
level of income. These benefits are designed to help seniors maintain a minimum
standard of living in retirement and to help them meet their basic needs. That
is why it is a shock to Canadians to learn that prisoners are also entitled to
The purpose of OAS benefits is to help seniors meet their basic needs. This
purpose is why the entitlement for prisoners is particularly galling to seniors.
Honourable senators, we can all understand why seniors are upset. Inmates
already have their basic needs paid for by public funds. This is why the
Government of Canada is amending the Old Age Security Act, so that prisoners
will no longer receive Old Age Security benefits while they are incarcerated.
Let me explain briefly exactly what this bill will do. Once passed, Bill C-31
will terminate Old Age Security benefits for prisoners sentenced to more than
two years in a federal penitentiary. The federal government will then work with
provinces and territories to sign information-sharing agreements to proceed with
the termination of these benefits for incarcerated criminals serving 90 days or
more in a provincial or territorial institution.
The Minister of Human Resources and Skills Development has written all the
provinces and territories to gauge their support. I hope they all agree to move
forward with us on this important bill.
Honourable senators, this bill will affect approximately 400 federal inmates
and about 600 provincial and territorial inmates per year. In total,
implementing this bill will result in a saving to Canadian taxpayers of $2
million annually once the change is made federally. The savings will increase
another $8 million to $10 million per year if every province and territory signs
I point out that this bill will put the OAS Act in line with other federal
and provincial, as well as international, practices. For example, the Working
Income Tax Benefit and the Employment Insurance program cease payments of
benefits when an individual is incarcerated.
In addition, most of the provinces and territories — British Columbia,
Alberta, Saskatchewan, Ontario, Quebec, New Brunswick, Nova Scotia, and the
Northwest Territories — do not make social assistance available to inmates,
while the United Kingdom, Australia and the United States, among others, all
suspend the payment of pensions to prisoners.
It is important to note that this legislation is fair to the spouses of
incarcerated individuals. We are ensuring that they are not unduly affected.
Spouses will continue to be eligible for the Old Age Security pension,
Guaranteed Income Supplement and the allowance. Their entitlements will be
reassessed based on the fact that they live alone.
This bill is about treating taxpayers fairly, and this bill is about treating
our seniors, who have contributed so much to this country, fairly. It is no
wonder that the majority of Canadians find the current situation unacceptable.
Taxpayers, who are already paying to support these inmates, also have to pay
Canadians feel strongly that federal prisoners should not be entitled to OAS
benefits while they are incarcerated and supported by taxpayers' money.
Honourable senators, I will share some of the views expressed by Canadians in
regard to this issue.
Sharon Rosenfeldt is the President of Victims of Violence, and she is also
the mother of one of Clifford Olson's victims. Her life was forever altered by
his heinous crimes. When this bill was introduced, this is what she had to say:
It's great to see that this government is putting victims and taxpayers
first ahead of criminals. The suspension of OAS benefit payments to inmates
does just that.
I commend Prime Minister Harper and Minister Diane Finley for taking
leadership on this important issue and ending entitlements for convicted
Ray King is the father of another victim of Clifford Olson. When he learned
the government introduced this bill, he stated:
It's the best news I've heard in a long time. I'm quite pleased the
government has actually done something.
David Toner, President of Families Against Crime & Trauma, also praised this
We are thrilled that the Prime Minister and the minister have taken
leadership and are putting victims ahead of the entitlements of prisoners. I
commend the Harper Government for introducing this legislation.
It is not only the families of victims that support this bill. Law
enforcement has also been supportive. We have heard from police officers across
the country, who believe this bill is the fair and right thing to do.
For example, Vancouver Police Chief Jim Chu applauded the bill and had this
It would be my hope that the innocent victims will no longer feel further
victimized by watching their attackers receive old age pensions during their
forced retirement from their careers of crime. I'm sure this evolutionary
change in legislation will be greeted warmly by the many victims of these
Taxpayers across the country made their voices heard by signing a Canadian
Taxpayers Federation petition in support of this bill. In fact, almost 50,000
Canadians signed the petition. When the bill was introduced, the taxpayers
When the government does something right, they deserve credit.
As you can see, victims and other major organizations strongly support this
piece of legislation.
Honourable senators, prisoners have no need for income support from the Old
Age Security pension or the Guaranteed Income Supplement. Taxpayers already pay
for prisoners' basic needs — for their food, shelter, clothing and many other
things. The government is amending the Old Age Security Act to ensure public
funds are used responsibly and that taxpayers are receiving good value for their
The government took quick action to put an end to incarcerated criminals
receiving taxpayer-funded benefits meant to help Canadian seniors who have
contributed so much to our country.
Bill C-31, the proposed Eliminating Entitlements for Prisoners Act, puts an
end to hard-working Canadian taxpayers paying twice for prisoners. This bill is
about the responsible use of public funds and the fair treatment of Canadian
taxpayers. We are taking action to put an end to entitlements for prisoners, and
to ensure that those Canadians who have spent their lives working hard and
playing by the rules receive the benefits they deserve.
This bill is fair and right. It is what Canadians want us to do.
Honourable senators, I urge all of you to support this bill and to pass it
Hon. Sharon Carstairs: Would the honourable senator accept some
Senator Seidman: Yes, I will.
Senator Carstairs: I want to thank the honourable senator for her
comments. We will catch with this bill, however, only those who collect the
old-age pension. We know, for example, in the case of Russell Williams, that he
will get a $60,000 pension from the military.
Was there any consideration on the part of the government to, instead of
going after the pensions, go in a different route, which is to charge room and
board for those inmates in our institutions, like Clifford Olson, who will cost
$150,000 per year to incarcerate? Was there any idea that we might take that
vehicle instead of this one?
Senator Seidman: Honourable senators, I will say that this is a good
point. However, what we are addressing in Bill C-31 is a completely different
issue; that is, one of suspending the OAS and the GIS from criminals who are
incarcerated. That is the subject of the bill. That is what the debate is about.
If I might remind honourable senators, room and board is but one small part
of what taxpayers are charged for prisoners, and it ignores the other
significant costs, such as medical and dental care.
Senator Carstairs: That is true, and medical and dental care could be
factored in as well. I had gathered, therefore, that the government has not
looked at the alternative, which would be to put a price on the room and board
portion of inmates, and therefore catch not just those who are collecting OAS
but catch all of those who receive substantial income at the same time they are
serving terms in prison.
I do know, from our aging study work, that single women are among the poorest
seniors in the country. Presumably — one questions sometimes why — we have
situations in which some of these incarcerated individuals have spouses.
My question is the following: Will there be any means or any contingency by
which the spouse of the incarcerated individual, who might now be receiving a
portion of this old-age pension and thereby prevented from being on welfare,
will have some of that money passed on to them?
Senator Seidman: I will respond to the initial question first. As the
honourable senator well knows, the Canadian Pension Plan is not affected by
these amendments, since these benefits are based on contributions to the plan by
employers, employees and the self-employed, and inmates continue to be eligible
for CPP. There is nothing we can do about that.
As far as spouses are concerned, I must remind honourable senators that this
is dealt with in this bill. The old-age pension of spouses and common-law
partners are not affected, and indeed it protects the low-income spouse and
common-law partners in ensuring that they have their Guaranteed Income
Supplement and if they are pre-65, in the 60 to 64 age group, they get their
Senator Carstairs: I thank the honourable senator for that response.
That is very helpful.
In the honourable senator's comments today, she focused on the quotes of a
number of victims' groups. Can she assure the Senate this afternoon that these
$2 million-plus savings will, in fact, be given to victims' groups so they can
better protect the victims of this country?
Senator Seidman: I must remind honourable senators that, as far as the
victims are concerned, there is no provision in our statutes to allow us to take
OAS entitlements and put them into a victims' fund. The OAS entitlements go
directly to the beneficiaries, and we do not have any control. We cannot put
them into one pot. It is not allowed under current law.
Senator Carstairs: Presumably, if you have a saving from the failure
to pay out old-age pension, that is then returned to general revenues of the
Government of Canada. Is there, therefore, a provision that, from the general
revenues of the Government of Canada, the same amount will now go to victims?
Senator Seidman: There is no provision in the existing law, apart from
Bill C-31, that allows the government to take control of entitlements. These
cheques are made out to individuals and go directly to the individual or to his
or her family member. We cannot take that entitlement and put it into a general
pot or a general fund. It is simply not doable.
Senator Carstairs: I do not think the honourable senator understands
Senator Seidman: Yes, I do.
Senator Carstairs: I do not understand her answer, then. It can work
The honourable senator is passing a piece of legislation that will take, from
the Clifford Olsons of this world, X amount of dollars each month. Now that that
money has been withheld from them — and I support that concept — it goes into
the general revenues of the Government of Canada.
Will we now see a budgetary line equivalent to that new revenue, which is
acquired by the Government of Canada, going into victims' funds?
Senator Seidman: I can only repeat the same answer, because that is
just a fact of life. It is simply not possible to take entitlements that are
directed to an individual and put them into a general pot or a general fund. It
is impossible to do.
Senator Carstairs: Then what will happen with this money? It is not
being paid out. There is not a fund for OAS. There is for CPP. What will the
government do with the money? Will it just magically go up in smoke?
Senator Seidman: As I have said, we cannot take this money. The
cheques will not be made out to the prisoners. The government obviously will
save this money. However, we cannot take that money and put it into any general
pot. Basically what happens is the government reduces payments, and therefore
the government saves that money in its budget.
Hon. Tommy Banks: Perhaps an urging would be in order. The government
will save a certain amount of money, which will be in the general revenue,
because it will not be paid out. There is a fund to assist both the victims of
crime and those who are incarcerated for a crime of about $1.5 million, some of
which goes to the excellent work done, for example, by the Elizabeth Fry
Societies and the John Howard Society. We heard about this in committee today.
Out of that $1.5 million, $19,000 goes to the non-profit agency that operates
across Canada in the interests of victims of crime.
No one wants to take money away from the John Howard Society or the Elizabeth
Fry Society, et al., but might the government consider bumping that fund up so a
little more than $19,000 a year could go to victims' services? I know that is a
Senator Seidman: I might remind the honourable senator that no
government has done more for victims than this government has.
Some Hon. Senators: Hear, hear.
Senator Banks: I thank the honourable senator.
(On motion of Senator Tardif, debate adjourned.)
Hon. Patrick Brazeau moved second reading of Bill C-3, An Act to
promote gender equity in Indian registration by responding to the Court of
Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian
and Northern Affairs).
He said: Honourable senators, I am pleased to rise today in respect of
speaking to Bill C-3, An Act to promote gender equity in Indian registration,
and to explain why I encourage my colleagues to join me in supporting it.
Bill C-3 would remove a cause of gender discrimination in the Indian Act. I
encourage honourable senators to give this bill prompt attention so that it can
be passed in the coming weeks. Doing so would meet the deadline imposed upon
Parliament in a ruling of the Court of Appeal for British Columbia, a deadline
which has been extended until January 31, 2011.
Honourable senators, I will now explain the reasons why Bill C-3 is important
and deserves our immediate attention.
On April 6, 2009, the Court of Appeal for British Columbia ruled in McIvor
v. Canada that two paragraphs in section 6 of the Indian Act create undue
discrimination between men and women with respect to registration as status
Indians and therefore violate the provision in the Canadian Charter of Rights
and Freedom guaranteeing equality of the sexes.
Rather than have its decision take effect right away, the court suspended the
effects of its decision until April 6 of this year. In making its decision, the
court explicitly called on Parliament to enact an effective legislative
solution. In the interest of avoiding a legislation void in British Columbia,
this government introduced legislation on March 11 to implement changes that
directly respond to the decision of the Court of Appeal for British Columbia.
As honourable senators may be aware, Bill C-3 was informed by a robust
stakeholder engagement process. In August 2009, this government announced an
engagement plan to provide information and seek input on a legislative solution.
That same month, the engagement process got under way with the publication and
distribution of a discussion paper setting out the federal government's proposed
legislative amendments to certain registration provisions of the Indian Act.
Engagement sessions were held from early September to early November.
National Aboriginal organizations co-sponsored three of the sessions, and
representatives from Indian and Northern Affairs Canada held 12 other sessions
with the collaboration of regional Aboriginal organizations.
In all, some 900 people took part in 15 sessions and, as of mid-November,
more than 150 briefs had been received.
The process generated a great deal of discussion, throughout which a wide
range of views and opinions was expressed. The concerns raised were mostly on
broader issues relating to registration, membership and citizenship, rather than
the specific elements of the court's decision reflected in this bill's
Honourable senators, during these engagement sessions, while many people
expressed support for actions intended to eliminate gender discrimination in the
Indian Act, many also called for much larger reforms. In light of this, and in
the spirit of collaborative dialogue, the minister announced in March that a
separate exploratory process is being put in place.
This additional process, which will take place outside the legislative
process, will enable First Nations and Aboriginal organizations to study the
broader problems that were raised in the engagement process.
This process confirmed the relevance of the government's approach and Bill
C-3 was introduced in March.
The bill was subsequently referred to the House of Commons' Standing
Committee on Aboriginal Affairs and Northern Development where the committee
heard from more than 30 witnesses. The bill was amended at committee and again
at report stage before being passed in the other place. I would call honourable
senators' attention to three significant developments during this time.
In July, the Court of Appeal acknowledged that the government had been
diligent in moving forward with legislative amendments without any undue delays
in the process. As a result, it responded favourably to the government's request
for an extension until January 31, 2011. The court also provided a telling
comment about calls to abandon Bill C-3 and instead initiate sweeping amendments
to the Indian Act.
Honourable senators, please allow me to read from the ruling of the Court of
Appeal for British Columbia:
. . . while efforts of Members of Parliament to improve provisions of the
Indian Act not touched by our decision are laudable, those efforts should
not be allowed to unduly delay the passage of legislation that deals with
the specific issues that this Court has identified as violating the Charter.
As this excerpt of the decision makes clear, the court believes that the best
approach is to address the matter at hand as it is set out in Bill C-3, namely,
the discrimination engendered by certain registration provisions of the Indian
Act as identified by the court.
The other thing I want to address is the letters sent to the Minister of
Indian and Northern Affairs by citizens who believe they are entitled to be
registered as status Indians.
These people cannot apply for registration until the requirements under the
court ruling have been met. In other words, if Bill C-3 does not pass, their
status will remain unclear and no court in the land will be able to intervene on
Without legislation to address the court's ruling, section 6 of the Indian
Act would become invalid, meaning that any and all new registrations would be
put on hold for the duration of the invalidity. This legislative gap would
affect eligible residents of British Columbia and those affiliated with British
Columbia First Nations. In British Columbia over the last few years, there have
been between 2,500 and 3,000 newly registered people per year.
Honourable senators, passing this bill would change many things. It would
mean that some 45,000 people would become entitled to apply for Indian status.
In anticipation of this influx of requests, the Indian Registration and Band
Lists program has developed an implementation strategy to efficiently deal with
the new applications for registration under the Indian Act in accordance with
the proposed amendments.
I am fully aware that Bill C-3 will not settle all of the grievances; it will
not fix the larger issues of Indian registration, band membership and Indian
citizenship for members of First Nations.
The current government plans to study these issues through an inclusive
process, in partnership with Aboriginal organizations.
In fact, the Government of Canada has already invited proposals on the
exploratory process from the Assembly of First Nations, the Native Women's
Association of Canada, the National Association of Friendship Centres, the
Congress of Aboriginal Peoples and the Métis National Council.
By working together, I am confident that progress will be made over time.
However, as important as this work is, it cannot take precedence over Bill C-3.
We must not lose sight of the fact that the Court of Appeal for British Columbia
has identified a source of injustice and called upon Parliament to rectify it.
Bill C-3 responds with a focused solution, a solution informed by an
engagement process that included a series of meetings with stakeholders that
took place last summer and fall, and following the bill's introduction and study
in the other place by the Standing Committee on Aboriginal Affairs and Northern
The third element came into play on October 26, when two motions to amend
Bill C-3 were adopted in the other place — one re-establishing clause 9 of the
bill and the other proposing to amend clause 3.1 in order to clarify it.
Clause 9, which was removed from the bill by the other place's Standing
Committee on Aboriginal Affairs and Northern Development, was re-inserted at
Clause 9 would prohibit the courts from ordering compensation, damages or
indemnity for decisions made in good faith by government officials or by First
Nations governments based on the legislation in place before the amendments to
the Indian Act contained in Bill C-3 take effect.
Honourable senators, let me be clear: Clause 9 protects not only the Crown
but also First Nations band councils who make decisions with respect to the
programs and services they offer to their members.
The government believes that clause 9 is an important provision because it
clarifies the law and avoids raising expectations that past decisions will be
reopened or past settlements renegotiated.
The changes made to clause 3.1 of the bill improve the wording of the
amendment passed by the Standing Committee on Aboriginal Affairs and Northern
Development to require that the minister present a report to Parliament not
later than two years after the changes to the Indian Act come into force.
Furthermore, they are in line with the recommendations of the drafters of the
bill and do not make any changes in the substance of the committee's amendment.
Moreover, they clarify that it is the Minister of Indian Affairs and Northern
Development who is responsible for the report to Parliament. As previously
drafted, clause 3.1 referred to the minister but did not offer more precision.
This situation has now been remedied through this amendment.
Honourable senators, Bill C-3 represents a timely and appropriate response to
the court's ruling. In addition, and equally important, it eliminates a cause of
gender discrimination. In essence, Bill C-3 represents a progressive step by a
country committed to the ideals of justice and equality.
As honourable senators know, the Speech from the Throne contained significant
commitments to support the government's agenda to improve the living conditions
for Canada's Aboriginal Peoples.
We are focusing our efforts on making a real and measurable difference in the
lives of Canada's Aboriginal citizens. That is why we passed Bill C-21, An Act
to amend the Human Rights Act, legislation extending fundamental human rights
protections to all First Nation communities.
That is also why we have introduced Bill S-4, the family homes on reserves
and matrimonial interests or rights act. This bill provides a process for First
Nations to enact their own matrimonial real property laws that reflect the
cultural and social traditions of their communities.
Honourable senators, our government believes that all Canadians — Aboriginals
and non-Aboriginals, men and women — should be able to exercise their rights and
that everyone's rights should be protected. As I have already said, Bill C-3 is
an important bill because it would redress a Charter violation that has been
criticized by the courts.
What is more, it is legislation that directly impacts First Nations peoples
and their right to be recognized as such while granting Indian status to many
and, meanwhile, continuing to address the ongoing need for incremental reform of
the Indian Act.
I urge honourable senators in this chamber to join me in supporting the
timely passage of Bill C-3. Thank you. Meegwetch. Merci.
The Hon. the Speaker: Is there continuing debate?
Hon. Sandra Lovelace Nicholas: Honourable senators, I rise today to
speak on Bill C-3, An Act to promote gender equality in Indian registration.
This bill that has been presented before the Senate is extremely important. The
bill attempts to make laws fairer for Aboriginal people living in Canada.
Most honourable senators know, or have been made aware, of my personal fight
against the Government of Canada during the 1970s, which led to similar
amendments to the discriminatory provision within the Indian Act registry. These
amendments became law in 1985, and this bill is the first time any government
has revisited the registration provisions since that time.
As an overview, the Indian Act provides the legal framework for the
relationships between First Nations people and the Government of Canada.
Legislation was first passed in 1869. In my opinion, it continues to reflect a
paternalistic European-Canadian assumption that men should be the heads of the
household and that women should be defined by the Indian status of the male
What this assumption means in practice is that women and their children lose
their Indian status when they marry non-Native men, but Native men do not when
they marry non-Native women. If this is not enough, to make the situation even
more perverse, Native men who adopt children from other cultures can legally
bestow Indian status on the adoptees, while children born from legitimate native
blood cannot and will not be registered.
Following my marriage breakdown, I returned home to my community at Tobique
First Nation. Despite the fact that we spoke our language and continued to
practice our cultural beliefs, we were met with hostility by Native men and
their non-Native wives and moving off our ancestral land. We were denied
housing, education and health care benefits that we were originally entitled to
prior to our marriages.
I found this situation to be unacceptable and elicited the support of
non-Native women's groups, such as the National Action Committee and the Voice
of Women. They assisted us with our fight against the intolerable gender
discrimination and participated by demonstrating with us. We conducted sit-ins,
marches and appeals through the courts.
I clearly remember our demands for change being ignored by government
officials, politicians and, oddly enough, the Assembly of First Nations. This
response was unacceptable. Our group was dedicated and determined to remove this
legislative barrier to our rightful identity.
In July 1979, we decided to make our voice heard in a more visual and
meaningful way. Many women from Tobique First Nation organized a 100-mile walk
for women and children from the Oka reserve, near Montreal, to Ottawa to draw
attention to this problem. We were supported along the way by people who
provided us with food and water.
Upon our arrival in Ottawa, we were greeted by dignitaries and members of the
media, but only empty promises for change were made. No bill supporting this
amendment passed and, unfortunately, the status quo remained.
The Canadian government claimed that it would like to change the law but did
not feel it could without the agreement of First Nations people, who were
divided on the issue.
It seemed that only the highest court of Canada would decide the legitimacy
and outcome of our fight for equality. With the support of a focused and driven
legal team, my name was used to bring a complaint against Canada to the Human
Rights Committee of the United Nations.
After years of fighting, demonstrating and convincing people who would
listen, in 1981 the United Nations committee found Canada had breached the
International Covenant on Civil and Political Rights. Even after the UN ruling,
the Canadian government acted slowly. Politicians were concerned that the male
leadership within First Nations communities who were opposed to the changes were
reluctant to interfere.
In July 1981, the Canadian government began granting exemptions from the UN
ruling to Indian bands who requested it and, in 1985, despite the opposition of
many band governments that opposed reform, the Indian Act was finally revised.
Native women who married non-Native men would no longer lose their status, nor
would their children. It was a victory to so many Native women who had struggled
for equality. It was a victory for the Native children born through our
marriages that were denied basic services from our band. It was a victory that,
unfortunately, became short-lived.
When Bill C-31 was enacted, it gave back Indian status to Native women, and
it also gave back to our children their Indian status, but it did not give back
full status. It had limitations. Yes, my children were now entitled to services
provided by the band and the Canadian government, but what occurred was a
secondary class of Indian status. Our children were now categorized as section
6(2) Indians. As it stands, even prior to the implementation of this bill,
people that re-inherited their status and were given the section 6(2) status
classification continued to suffer from gender discrimination. For example, our
children must remarry or have children with other section 6(1) or 6(2) Indians
in order for our children to be eligible for registration under the Indian Act.
This is an additional effect of being born to a non-Native father. This cannot
be denied because prior to the implementation of Bill C-31, in 1982, there were
no classifications of Indian status.
As a member of the greater First Nation communities across Canada, and as a
sitting member of the Senate of Canada, I carry the burden to ensure all laws
proposed to be passed by this Senate are fair, just and equitable. In this
instance, I must balance my responsibility as a senator with my culture as a
Maliseet. If the bill is fair, just and equitable, I will support it. If it is
not, I will refuse to give it proper support.
I will now turn my remarks to the principles of Bill C-3. I have read the
debates on Bill C-3 that took place in the house on Tuesday, May 25, 2010. It
was quite clear to me that there is a huge divide between the unanimous voices
of Aboriginal peoples on this issue and that of the government. Even the
opposition parties have noted the rare unison of opinion on this issue.
What follows are some of the main items the government is using to try to
justify passing this bill. First, the government says that it held extensive
consultations with the national Aboriginal organizations and others on Bill C-3.
It is my understanding that, in fact, there was no full consultation. There was
only what government referred to as "engagement" sessions. When INAC officials
made their presentation to organizations such as the Congress of Aboriginal
Peoples at their annual assembly in 2009, they were asked directly if this
amounted to consultation. The definite answer from INAC officials was "no."
No money was provided to First Nations or Aboriginal groups to consult on
Bill C-3 with their members. There was no full disclosure of key information and
documents, nor was there an assessment of the pros and cons of Bill C-3
The government's engagement process was simply telling a few select
Aboriginal girls what would happen, and the government did not address
legitimate concerns presented by these groups or the individuals.
Consultations, as outlined in the Supreme Court of Canada cases like the
Haida and Mikisew Cree, adopted principles that suggested that the government
would have been legally obligated to consult, not engage, with the First Nations
and groups impacted by the bill, and accommodate, not ignore, their legitimate
Second, the government states that 45,000 people will not get to be
registered if this bill is not passed. The government itself claims that it
cannot do any costing on this bill because it cannot determine how many people
will actually apply for and be granted status. If it cannot do the costing, then
it cannot say that 45,000 people will not get status if the bill does not pass.
The government cannot have it both ways. Either it is 45,000 and it costs that
out or it is not. Gender discrimination is not resolved if only some people get
to benefit. One cannot even say that gender discrimination is partially
resolved. There is no such thing. Gender discrimination is either eliminated or
it is not.
Third, I believe that it is absolutely necessary to include section 9 in Bill
C-3 so Indian women are not fooled into thinking they have a legal right to be
compensated for their exclusion from registration based on their gender. The
government must step up to the plate and register the descendents of Indian
women and finally compensate them for what they have lost. Aside from the
physical aspects, the harms they suffered are equal to those who attended
residential schools and clearly utilize the same assimilatory approach.
Another argument they raised in debate is that section 9 is necessary to
protect First Nations. If the government is legitimately concerned about First
Nations liability, they could amend section 9 to only protect First Nations
liability and only for status issues. We all know that this is about protecting
Canada from liability for wilful discrimination, which continues. By having that
provision, the government will be able to delay addressing the rest of the
gender discrimination as long as they deem necessary, knowing that they are not
liable for the harms suffered by Indian women and their descendents.
Fourth, we should pass Bill C-3 as is because joint process will take care of
the other issues. Where is the commitment for funding for any First Nation or
their representative groups to participate in such a joint process? Has anyone
received a penny?
Where are the terms of reference for this joint process? Who will direct this
process and will it have measurable deliverables? Where is the commitment to
deal with specific issues like unstated paternity and illegitimate siblings?
Where is the commitment to deal with band membership?
The joint process was made to be a carrot to get agreement by budget-strapped
national Aboriginal organizations that are at the mercy of their funder, namely
the government, to pass another otherwise unacceptable bill.
The bill does not address McIvor, even in the narrowest terms, because
the double mother clause descendents still have better status than the
dependants of Indian women who married out. It is as plain and simple as it
Bill C-3 does not address gender discrimination because it cannot be
addressed in part. If the elimination of gender discrimination would mean that
100,000 people would be registered, then a bill which would register 20,000,
30,000 or 45,000 people does not address gender discrimination.
We all see through this charade, as so aptly put by MP Todd Russell. We need
to support Indian women and their equality rights by voting against the bill. In
the end, I think the majority of Aboriginal peoples and their organizations
would readily accept a delay in addressing registration if it meant we address
gender discrimination in full.
Canada must now live up to its fiduciary and other legal duties and
obligations toward Aboriginal people and act in a way that lives up to the
honesty of the Crown. My grandchildren and many others are counting on Canada to
finally eliminate gender discrimination against Indian women and their
Honourable senators, I am prepared to support Bill C-3 in principal. I do
believe though that many issues have been missed by our present government in
the drafting of this bill and throughout its so-called negotiation phase.
Honourable senators, I am a believer in First Nations self-governance. I
believe that our elected First Nations leaders and elders should be vested in
determining who its band members should be, rather than this red tape,
bureaucratic process. Until this issue is addressed by government, the debate
over who is and who is not a First Nation member will never end.
Honourable senators, I strongly urge the government to consider this
The Hon. the Speaker: Not seeing any further debate, are honourable
senators ready for the question?
Some Hon. Senators: Question.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
(Motion agreed to and bill read second time.)
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
(On motion of Senator Brazeau, bill referred to the Standing Senate Committee
on Human Rights.)
On the Order:
Resuming debate on the motion of the Honourable Senator Mitchell,
seconded by the Honourable Senator Banks, for the second reading of Bill
S-221, An Act to amend the Income Tax Act (carbon offset tax credit).
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I have not finished gathering my notes on this bill, and I still have
a bit of work to do. I would therefore like to move adjournment of the debate
for the remainder of my time.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
(On motion of Senator Comeau, debate adjourned.)
On the Order:
Resuming debate on the motion of the Honourable Senator Hervieux-Payette,
P.C., seconded by the Honourable Senator Tardif, for the second reading of
Bill S-204, An Act to amend the Criminal Code (protection of children).
Hon. Donald Neil Plett: Honourable senators, I had planned to speak on
this matter today, but because of the time, I will try to speak to it on
Tuesday. I would like to adjourn this in my name for the duration of my time.
(On motion of Senator Plett, debate adjourned.)
On the Order:
Resuming debate on the motion of the Honourable Senator Tardif, seconded
by the Honourable Senator Rivest, for the second reading of Bill C-232, An
Act to amend the Supreme Court Act (understanding the official languages).
Hon. Claudette Tardif (Deputy Leader of the Opposition): Honourable
senators, I would like to ask a question of my colleague, the Honourable Senator
The honourable senator has assured this chamber on several occasions that
there are senators on his side who wish to speak to Bill C-232. Almost a month
ago, I raised the question as to when someone might speak on the honourable
senator's side and no one has yet spoken. No Conservative senator has spoken on
this issue in the last month even though the bill has been before us for 226
Can the honourable senator tell me when the Conservative senators will stop
delaying this bill, a bill which has been adopted by the elected majority in the
Hon. Gerald J. Comeau (Deputy Leader of the Government): I am happy to
answer this question. I believe Senator MacDonald will speak to this item next
week. Senator Meighen will then speak to it within the next two weeks. Senator
Champagne has spoken to it. Senator Angus has indicated that he will speak to it
within the next two weeks. I will speak to it within the next three weeks. We do
have a great number of senators who wish to address this item, and I presume
there will be others who intend to speak to this bill as well.
Given the far-reaching effects of this bill, which I will not get into now,
there will be plenty of movement on it.
Senator Tardif: As I said, I received that commitment from the
honourable senator and from Senator Meighen almost a month ago. Am I given to
understand that there is a commitment for some senators to speak to this next
week and the week after?
Senator Comeau: If we were not stuck with all the private members'
bills that seem to come out of the woodwork every day in this place, we might be
able to get to some of these bills in a more timely fashion. If the honourable
senator looks at the Order Paper, she will see the huge proliferation of bills
that seem to be coming from the honourable senator's side.
On the Order:
Resuming debate on the motion of the Honourable Senator Rivest, seconded
by the Honourable Senator Lang, for the second reading of Bill C-288, An Act
to amend the Income Tax Act (tax credit for new graduates working in
Hon. Gerald J. Comeau (Deputy Leader of the Government): I will repeat
almost verbatim the speech given by Senator Plett. Given the hour, I think we
will postpone debate on this bill at this time.
I move the adjournment for the duration of my time.
(On motion of Senator Comeau, debate adjourned.)
On the Order:
Resuming debate on the motion of the Honourable Senator Runciman,
seconded by the Honourable Senator Stewart Olsen, as amended:
That in the opinion of the Senate, the government should consider the
establishment of a tuition fund for the families of federal public safety
officers who lose their lives in the line of duty and that such a fund
should operate along the lines of the Constable Joe MacDonald Public Safety
Officers' Survivors Scholarship Fund, in place in the province of Ontario
Hon. Claudette Tardif (Deputy Leader of the Opposition): Honourable
senators, I have not yet completed my research on this issue. I would therefore
like to adjourn the debate in my name for the remainder of my time.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
(On motion of Senator Tardif, debate adjourned.)
Leave having been given to revert to Government Notices of Motions:
Hon. Gerald J. Comeau (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 Tuesday,
November 30, 2010 at 2 p.m.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
(The Senate adjourned until Tuesday, November 30, 2010, at 2 p.m.)