Debates of the Senate (Hansard)
1st Session, 41st Parliament,
Volume 148, Issue 128
Monday, December 10, 2012
The Honourable Noël A. Kinsella, Speaker
Monday, December 10, 2012
The Senate met at 6 p.m., the Speaker in the chair.
The Hon. the Speaker: Honourable senators, I wish to draw to your
attention the presence in our gallery of Jacques Chagnon, the speaker of the
Quebec National Assembly.
On behalf of all senators, I welcome you to the Senate of Canada.
Hon. Senators: Hear, hear.
The Hon. the Speaker: Honourable senators, I also wish to draw to your
attention the presence in the Governor General's gallery of Catherine Coutelle,
the chair of the France-Canada Interparliamentary Association; Claudine Lepage,
the chair of the Groupe d'amitié France-Canada of the French Senate; Corinne
Narassiguin, the chair of the Groupe d'amitié France-Canada of the National
Assembly of France; Marc Le Fur, the deputy speaker of the National Assembly of
France; Charles Revet, an alternate member of the Groupe d'amitié France-Canada
of the French Senate; Alexandre Michel, the executive secretary of the FCIA; and
Ilde Gorguet, the first secretary of the Embassy of France in Ottawa.
On behalf of all senators, I welcome you to the Senate of Canada.
Hon. Senators: Hear, hear.
Hon. A. Raynell Andreychuk: Honourable senators, I rise today, on
International Human Rights Day, to acknowledge the tenth anniversary of the
International Criminal Court.
On the July 1, 2002, the Rome Statute entered into force with the
ratification of the sixtieth country, establishing the ICC at The Hague. This
achievement was in many respects the outcome of years of work by
Parliamentarians for Global Action. Bringing parliamentarians together on a
non-partisan basis, PGA built understanding of what the court can do. It is not
retroactive, but complementary to the laws of nation states. It provides means
to stop impunity for the kinds of horrific crimes we have witnessed in the past.
Working with domestic jurisdictions, the PGA helped countries implement the
Rome Statue in their national systems and move towards a rules-based
international order. It is a central feature of the Rome Statute that it is
binding on all states that ratify it. Today, this spans 121 countries. It is
also central to the court's purpose that it handles only the world's most
heinous crimes: genocide, crimes against humanity and war crimes.
I noted this morning Canada's ongoing leadership in establishing the
International Day of the Girl and in providing almost $14 million to the fight
against sexual violence in emerging democracies.
The Rome Statute shares Canada's recognition of gender-based violence among
the gravest crimes. It lists rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization and other forms of sexual violence as weapons
of war. Such is the severity of the crimes that the ICC aims to eliminate.
It is critical that the ICC not limit its prosecutions to heads of government
or state. Indeed, anyone who commits such crimes — from presidents, government
officials and military generals to press officials and indeed any person — can
be brought to trial at The Hague. No one can hide behind their title or lack
thereof. This is critical to what I believe will be the ICC's highest
achievement, which is to set an international standard so widely recognized and
binding upon all people that ICC's very existence will act as a deterrent.
In July the ICC concluded its first trial. Thomas Lubanga Dyilo was sentenced
to 14 years for crimes committed in the Democratic Republic of Congo. The ruling
sent a strong message on the unacceptability of the use of children and rape in
armed conflict. Warlords will have to take note, but there is still more work to
Honourable senators, we as the Senate and the Parliament of Canada need a
renewed commitment to finish the universalization of this important court.
Hon. Joseph A. Day: Honourable senators, I rise to salute
International Human Rights Day. Sixty-four years ago today, the United Nations
unanimously adopted the Universal Declaration of Human Rights, which ranks high
among international instruments of all time.
John Peters Humphrey, a native of Hampton, New Brunswick, was the principal
author of the Universal Declaration of Human Rights. His original handwritten
draft is in the archives at McGill University, where he was a law professor for
A book entitled The Boy Who Was Bullied has recently been written by
Anne Scott, of the same community of Hampton, New Brunswick. The book will be
officially launched at the United Nations in New York on Wednesday of this week,
in commemoration of International Human Rights Day.
Scott's book tells the story of John Peters Humphrey, starting with his
childhood in Hampton, the tragedies he faced and his great achievements. The
book's target audience is children, but I believe we can all benefit from the
reading of this book, which sheds light on the pressing issue of bullying as a
human rights issue. By telling John Humphrey's story, Scott sends the message to
students that human rights education begins with them in the classrooms and the
The book highlights the many hardships that John Humphrey endured in his
early life. Both of his parents died when he was still a young child, and due to
a severe accidental burn his left arm was amputated when he was six years of
age. Because he was different, John was bullied and taunted as a child, in spite
of which, or perhaps because of which, he developed a keen sense of compassion
in his later years.
John Humphrey went on to become a professor and dean of law and became a
director of the United Nations Division for Human Rights. It was there that he
prepared the first draft of the Declaration of Human Rights, working with
several others, including Eleanor Roosevelt, who expressed her hope at the time
that the declaration would become the international Magna Carta of human rights.
It was adopted on 1948 on this day, December 10.
Copies of the book, The Boy Who Was Bullied, have been distributed in
New Brunswick schools in both of the province's official languages.
Honourable senators, it is important to remember that human rights are not
only meant to be protected in the international arena. We all have a commitment
to respect human rights and to uphold the fact that all human beings possess the
same rights, regardless of gender, race, or religious, cultural or ethnic
Scott's book educates young children in elementary and middle school about
the importance of standing up for human rights. She shows how in the case of
John Peters Humphrey, standing up against bullies and standing up for what is
right is defending human rights, and that anyone — whether a child or a
representative at the United Nations — has the power and the responsibility to
defend human rights.
John Humphrey's legacy lives on in the practice of respecting human rights in
Canada and worldwide and now, with Anne Scott's new book, The Boy Who Was
Bullied, that legacy will be enriched by educating and inspiring our youth
about the importance of respecting universal human rights, by taking a stand
against bullying and by promoting respect and dignity. Congratulations to Anne
Scott and best wishes for a successful launch of her book on Wednesday of this
week at the United Nations.
Hon. Asha Seth: Honourable senators, December 10 marks International
Human Rights Day. Today is also the last day of our 16 Days of Activism Against
Gender Violence campaign. In light of these events and last week's National Day
of Remembrance and Action on Violence Against Women, it is urgent that I bring
your awareness and attention to an issue of violence affecting women of many
During my medical career, I have witnessed a disproportionate number of
ethnic women who have suffered discrimination, violence and domestic abuse at
the hands of people they trusted. The children of abused women often suffer the
effects as well. Domestic abuse calls to the police in Toronto, where I live,
have nearly doubled from 2003 to approximately 6,500 in 2011.
What concerns me is that statistics prove nearly 40 per cent of South Asian
women have suffered domestic abuse — an alarming number we cannot ignore. I
believe we have an opportunity to protect women while maintaining cultural
sensitivities. Many South Asian women feel as though they cannot escape domestic
violence for fear of isolation from their community. We are seeing this pressure
placed on younger children. Women are forced to marry men, many times much older
than they are, often by marrying outside of the country. These are matters of
great concern to me, to our leaders and to our citizens.
Honourable senators, as we pay tribute to the families who have been affected
by ethnic gender-based violence, I urge you to consider what we can do to stop
the cycle of violence. I advise you that I will continue to look into these
matters because I feel passionate about protecting Canadian women from
Remember that God cannot be everywhere, so he created mothers.
Hon. Mobina S. B. Jaffer: Honourable senators, 64 years ago today, the
United Nations General Assembly adopted the Universal Declaration of Human
Rights. I want to thank honourable senators for supporting my motion for the
Senate to join the UN General Assembly in recognizing December 10 as Human
Rights Day. Every day we read about human rights violations that take place
around the world. Today, however, I want to speak about the rights of Canadian
Canada signed the Convention on the Rights of the Child over 23 years ago.
Article 19 of the convention declares that states have an obligation to take all
appropriate legislative, administrative, social and educational measures to
protect children from all forms of physical or mental violence.
Recently, the Standing Senate Committee on Human Rights visited Winnipeg,
where we were invited to attend a children's powwow. When we entered the Indian
and Metis Friendship Centre of Winnipeg, the hall was full of children and their
teachers. Some of the children were dressed in beautiful, colourful outfits.
After a while, they were joined by mothers, aunts, grandmothers,
grandfathers, great-grandmothers and great-grandfathers who also entered the
room dressed beautifully in the most colourful outfits. We all got involved in
the powwow. We visited arts and craft tables, chatted with the children, and
admired their outfits. I cannot describe to you the sense of the community
coming together, even as visitors. We felt like we belonged.
While we were there, drums were constantly played. Elders and adults were
teaching the young adults and children to play drums. Then the procession
started. One by one, elders, teachers, other adults and children joined in. I
marvelled at how even a two year old was dancing in her beautiful outfit to the
rhythm of the drums.
Then came the banners. At first, I could not read the banners, but when I was
able to read the message, I was in absolute disbelief. The banner said: "Powwow
to Honour Children Who Have Died as a Result of Violence."
Honourable senators, this was in downtown Winnipeg, a Canadian community
organization that was hosting a powwow to honour its children as a result of
violence. We witnessed an incredible celebration of life, of community and of
Honourable senators, I ask you to join me on this Human Rights Day and to
commit to doing more in Canada to protect the rights of our children. All our
children deserve to live their lives free from violence.
Hon. Roméo Antonius Dallaire: Honourable senators, it has been
mentioned that today is the 64th anniversary of the Universal Declaration of
Human Rights. I witnessed a mass abuse of human rights 18 years ago, when even
some of the signatory countries allowed these rights to be horribly abused in an
unprecedented manner through a genocide. This was a term that was believed to
have disappeared from the language when the foundations of these human rights
On the contrary, the international community allowed this violence to take
place and to happen again in other countries, such as Darfur. There are
currently 2.5 million people who, because of their African Sudanese ethnicity,
are being harassed, raped and killed by militias funded and supported by the
Sudanese government. These people are being prevented from returning to their
homeland, despite the fact that this is one of the fundamental rights included
in the declaration that we signed and promised to help implement.
It is true that it took 34 years for our own country to get its Charter, but
we have it nonetheless. However, there are still shortcomings in the
international community for which we should be more actively and determinedly
trying to find solutions.
I would like to applaud the initiative of the International Criminal Court in
The Hague that, with the help of the Rome Statute, led to the elimination of the
possibility of impunity. I would also like to applaud our country's initiative
with regard to many conventions, such as the Convention on the Rights of the
Child and the part of that convention that prevents us from recruiting, training
and using children as weapons of war or, in other words, child soldiers. Some 40
per cent of the 250,000 child soldiers reported annually are girls who are used
not only as weapons but also as bush wives and sexual objects.
Rape has now become a crime against humanity and is considered an act of
However, there are other initiatives that we did not follow through on. I am
referring, for example, to the Durban Programme of Action, which we abandoned.
We should have persevered and continued the discussion of the evolution of human
rights. By abandoning this debate, we abandoned many other initiatives in this
area. However, in this place, we have taken some initiatives that I would like
to point out to you.
I would like to call the attention of honourable senators to the All-Party
Parliamentary Group for the Prevention of Genocide and Other Crimes Against
Humanity, which meets regularly and will be meeting tomorrow morning at 7:30 in
Room 256-S. The Ambassador of Mali will come and explain that the civil war
going on in that country is religious-based and not only power-based.
We can continue to do more for human rights by engaging in the prevention of
massive abuses of human rights by involving ourselves more in genocide
prevention in this country. Thank you.
Hon. Kelvin Kenneth Ogilvie, Chair of the Standing Senate Committee on
Social Affairs, Science and Technology, presented the following report:
Monday, December 10, 2012
The Standing Senate Committee on Social Affairs, Science and Technology
has the honour to present its
Your committee, to which was referred Bill C-44, An Act to amend the
Canada Labour Code and the Employment Insurance Act and to make
consequential amendments to the Income Tax Act and the Income Tax
Regulations, has, in obedience to the order of reference of Tuesday,
December 4, 2012, examined the said bill and now reports the same without
amendment but with observations, which are appended to this report.
KELVIN K. OGILVIE
(For text of observations, see today's Journals of the Senate, p.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
(On motion of Senator Eaton, bill placed on the Orders of the Day for third
reading at the next sitting of the Senate.)
Hon. Kelvin Kenneth Ogilvie, Chair of the Standing Senate Committee on
Social Affairs, Science and Technology, presented the following report:
Monday, December 10, 2012
The Standing Senate Committee on Social Affairs, Science and Technology
has the honour to present its
Your committee, to which was referred Bill C-300, An Act respecting a
Federal Framework for Suicide Prevention, has, in obedience to the order of
reference of Thursday, November 1, 2012, examined the said bill and now
reports the same without amendment.
KELVIN K. OGILVIE
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
(On motion of Senator Ataullahjan, bill placed on the Orders of the Day for
third reading at the next sitting of the Senate.)
Hon. Terry M. Mercer: Honourable senators, I have the honour to table,
in both official languages, the report of the Canadian parliamentary delegation
of the Commonwealth Parliamentary Association to the Bilateral Visit to India,
held in New Delhi, Amritsar, Mumbai and Chennai, India, from February 17 to 26,
Hon. Terry M. Mercer: Honourable senators, when we have asked about
the F-35 program in the past, we have often been warned of the dangers that
withdrawing from the process would do to Canadian industry. In fact, the Prime
Minister himself had this to say, honourable senators:
I do find it disappointing, I find it sad, that some in Parliament are
backtracking on the F-35 and some are talking openly about cancelling the
contract, should they get the chance.
Cancelling a contract that way would be completely irresponsible. The
opposition parties must stop playing partisan games with these crucial
Could the Leader of the Government in the Senate explain how the Prime
Minister of Canada could make this statement in the middle of an election
campaign when he knew full well the problems with the joint strike fighter
program, especially now that we find ourselves only a year later going down the
exact road that he said would never happen?
Senator Munson: What is a billion?
Hon. Marjory LeBreton (Leader of the Government): I thank the
honourable senator for that question. The exact same question was asked by one
of the honourable senator's colleagues in the other place; I happened to be
watching Question Period earlier today. The Prime Minister answered the question
as I will answer it right now. The National Fighter Procurement Secretariat is
in place to ensure transparency and due diligence in the decision to replace our
CF-18s. We are committed to completing the seven-point plan and moving forward
with our comprehensive, transparent approach to replace Canada's CF-18 fleet.
Our seven-point plan includes a review of options that will not be constrained
by the statement of requirements.
As was reported in the other place when the Prime Minister answered the
question earlier, there will be a transparent, open report made on this before
Parliament adjourns for Christmas.
Senator Mercer: I am tempted to say this replaces the "Rick Mercer
Report" there is so much humour involved here.
I have a supplementary question, honourable senators. According to the
Department of National Defence, the consequences of withdrawing from the joint
strike fighter production and the follow-on development memorandum of
understanding would be that Canada will have to complete payments on all joint
activities that the partnership has already contracted. Additionally, if Canada
has already submitted a procurement request for aircraft, Canada would be
responsible for all the costs incurred and any other costs resulting from the
termination of the order. In addition, Canada's industrial plants with the prime
contractors would be suspended.
Can the government tell Canadians, if there is a monetary penalty, are they
on the hook now because the PMO has decided to look at other options?
Senator LeBreton: Many times I have received a question from the
honourable senator's colleague, Senator Moore, and I have put on the record a
few times that our seven-point plan includes a review of options.
The government has received a report from KPMG and, as I indicated, we will
be providing a comprehensive public update on the KPMG report. Before we jump to
conclusions about what is in the report or respond to some of the hysteria and
headlines in the media, let us wait to see what is presented before Parliament
before we rise for Christmas.
Senator Mercer: The government has maintained a come-hell-or-high-water stance on the Canadian participation in the F-35 program since
2006. Needless to say, Canadian businesses have taken the government at its word
and have geared their efforts for future contracts around the F-35 program.
Indeed, several were involved in a futures contract conference with Lockheed
Martin just last month.
Has the government considered their stake in this? Has the government
considered the stake that Canadian business has in this and the plans they have
put in and around the F-35 program?
Senator LeBreton: Senator Mercer is jumping around on this matter.
Bear in mind, honourable senators, that Canada's involvement in the F-35 was
started under the previous government.
Obviously, the government listened to the recommendation of the Auditor
General and put in place the seven-point plan. I would suggest that honourable
senators not be swayed by headlines about meetings that did not take place or
decisions that we are not aware of one way or the other, and to wait for the
report, which will be presented to Parliament before the House of Commons rises
Senator Mercer: Honourable senators, the Minister of Defence had
stated in no uncertain terms that the F-35 is Canada's only choice of aircraft
and to consider other options is to put our pilots in jeopardy. The minister
claimed that a competition had been held, and then he claimed we did not need
one. One was held, but we did not need it. The minister claimed that
interoperability was at stake. The minister said the plane would cost only $62
million per unit. The minister said all of these things and none of them proved
to be accurate.
Can the Leader of the Government in the Senate give me just one good reason
why the Minister of National Defence has not been fired?
Senator LeBreton: Honourable senators, the government will not
purchase a replacement for the aging CF-18s until our seven-point plan is
completed, including an independent verification of costs and a full options
analysis. The options analysis is a full evaluation of choices, not simply a
refresh of the work that was done before.
Honourable senators, I think most reasonable people would acknowledge that,
as a result of the Auditor General's report last spring, the government stopped
the process and set up the secretariat for the oversight. I would suggest to
honourable senators, without jumping to conclusions, that we let the secretariat
complete its work and see what KPMG has to say, which, of course, will be
released before we break for Christmas.
Hon. Jim Munson: My question is for the Leader of the Government in
the Senate. Here are words from then Associate Minister of National Defence,
Julian Fantino. In November 2011, he said:
We will purchase the F-35. We're on record. We're part of the crusade.
We're not backing down.
This is the minister at that time. Tellingly, Minister Fantino may have
overshadowed what was to come. Like the F-35 program, after some early
successes, these later crusades were largely failures.
The minister also added:
There's a plan A, there's a plan B, there's a plan C, there's a plan Z
and they're all F-35s.
I take it from this that the minister knows both his ABCs and that the F-35
was, at that time, the only option for Canada.
Despite the words about hysteria in the media, there are a lot of questions
of bungling and what has happened in this F-35 program. How does the leader
explain those comments, which were made not very long ago, in light of the
Senator LeBreton: Honourable senators, I was not talking about
hysteria in the media. I was talking about headlines in the newspapers in the
last few days.
Obviously, something did happen, honourable senators, and it was the Auditor
General's report. Senator Munson is quoting from the late fall of 2011; we are
dealing with the Auditor General's report from earlier this year. As a result of
the Auditor General's report, when he made a specific recommendation for the
full lifespan of the aircraft, the government put in place the National Fighter
Procurement Secretariat to look at the whole program to ensure transparency and
due diligence in the decision to replace the aging CF-18s. We are committed to
completing the seven-point plan and moving forward with a comprehensive and
transparent approach to replacing the CF-18s. Our seven-point plan, as I have
said many times, so it should not come as a surprise to anyone, includes a
review of the options that will not be constrained by the statement of
Again, we have only a few more days before we rise for Christmas. The
government is committed to providing KPMG's report, the comprehensive review of
the CF-18 replacement program, and I would ask honourable senators to await the
release of that report before jumping to any conclusions.
Hon. Joan Fraser: Honourable senators, I would like to come back to
that quotation from Mr. Fantino that my colleague Senator Munson read.
There is a sentence in it that strikes me as being perhaps very revealing
when he said, "We're part of the crusade." Can the leader tell us what he meant
by "the crusade"? Am I possibly correct that the whole concept of the purchase
of the F-35s was not just a rational defence procurement decision, but a
crusade? Is that what got us into the mess we are in now where the National
Post is telling us it is going to cost $45 billion?
Senator LeBreton: I would suggest that honourable senators wait until
we release the KPMG report.
With regard to Minister Fantino's choice of words, obviously, we have not
purchased any aircraft. This was a program that the previous government embarked
upon. It was a program that was paused because of the Auditor General's report,
which the government took very seriously. That is why we put in place the
National Fighter Procurement Secretariat to ensure transparency and due
diligence on the decision to replace the CF-18s.
I would suggest to the honourable senator, as I did to Senator Munson and
Senator Mercer, that Christmas is coming, Parliament will adjourn later this
week, and we do not have many more days to wait for the KPMG report. I would
appreciate a little patience. I am sure we will get the information and then be
able to properly assess where we go from here.
Senator Fraser: The leader keeps telling us to be patient and wait for
the KPMG report, but can she explain why we do not already have it? The
government has had it for some time now. Selected journalists appear to have
been apprised of its contents. Why not Parliament?
Senator LeBreton: I do not see any evidence that journalists have the
report. The fact of the matter is the government has the report, will be
responding to the report, and, as indicated, will be responding to it before we
rise for Christmas.
Hon. Jane Cordy: Honourable senators, the Leader of the Government in
the Senate has spoken about the process to ensure transparency and due
diligence, so can she let the chamber know when the government received the KPMG
Senator LeBreton: No, I cannot.
Senator Cordy: Does she not know when the government received the
report? She spoke about the importance of transparency and due diligence. Does
she know when the government received the report?
Senator LeBreton: I stand by the answer I gave a few moments ago: No,
Senator Cordy: I guess she will not.
Senator LeBreton: No, I said "cannot."
Senator Cordy: So much for transparency.
It is a shame that the government has to bring in a special process to ensure
transparency and due diligence. One would hope the government would always be
transparent and conduct its due diligence, but I guess they have to bring in a
special process to make that happen.
Was there a contract signed for the F-35s?
Senator LeBreton: The fact is that we are being transparent and open.
The Auditor General clearly indicated that he wanted the full lifespan costs for
the replacement, including operational costs.
It is very clear, as we have said many times, all members of the government,
that no contracts have been signed. The fact of the matter is that when the
Auditor General brought in his report earlier this year, the government
obviously realized that there had to be some pause to look at the whole program.
We remember the stories in the newspapers about Public Works and National
Obviously, it was necessary to put the secretariat in place and call in an
independent, outside organization like KPMG. They have submitted their report.
As I have indicated many times during this Question Period, that report will be
fully released before Parliament rises for Christmas.
Senator Cordy: On December 13, 2010, Minister MacKay said in the other
Mr. Speaker, let us look at the actual contract. What the Canadian
government has committed to is a $9 billion contract for the acquisition of
65 fifth generation aircraft.
The Prime Minister also made reference to a contract being signed. Was there
or was there not a contract signed?
Senator LeBreton: I think it is pretty clear, and we have made it
pretty clear, that no contract has been signed.
Senator Cordy: It really is not very clear. We have been asking
questions for two years now and we have not been getting any answers. Senator
Tkachuk says it is ridiculous to ask questions. We asked them before; we did not
get the answers. We are asking them now; we are still not getting answers.
Could the leader tell us, in the spirit of openness and accountability, how
much money the government has spent to date on the F-35s?
Senator LeBreton: Again, when the Auditor General reported last
spring, the government brought in a seven-point plan, put in place an oversight
secretariat and called in KPMG, like any responsible government would do. That
is what we did.
The KPMG report, as the government, the Prime Minister, the Minister of
National Defence and the Associate Minister of National Defence, Mr. Valcourt,
have all said, will be tabled in Parliament before we rise for Christmas.
Hon. Roméo Antonius Dallaire: Honourable senators, let us take a look,
if we may, at this problem from maybe 35,000 feet, from a higher level, inasmuch
as this is where we want to be in the battle space with this issue. There is not
necessarily a question on the contractual arrangement because I am of the
opinion that maybe we are going through this process because in the fiscal
framework of the Canada First Defence Strategy, this aircraft is unaffordable.
By delaying it with another process for a couple of years, it may fall within an
affordable line at that time.
However, it seems to me that this project is also indicative of many other
projects that are putting in jeopardy the Canada First Defence Strategy and
putting in even more jeopardy the government's defence policy at a time when we
have been expecting an update of that, if not a rewrite — in fact, it could use
a rewrite — and that has been delayed also. The minister has been putting that
off, and we are not sure why that is so. Maybe it is because of the budgetary
requirements and that they are still trying to figure out the full depth of
budget cuts they want to do in Defence.
To the minister, is it fact that the procurement program or, put another way,
the capital program behind the Canada First Defence Strategy is absolutely
unaffordable, far beyond simply the budget cuts, that this project, like many
others, has been moved to the right or downscaled, that it now requires a review
by the government and that the government is stalling in wanting to give us that
Senator LeBreton: No money has been spent on a contract to replace the
With regard to the Department of National Defence, honourable senators, since
we took office, the defence budget has grown substantially every year. We have
delivered planes, helicopters, trucks and tanks; we have committed to care for
ill and injured personnel; and we have invested in infrastructure to meet the
needs of our men and women in uniform as they work and train. We did not, like
the previous government, send them off to Afghanistan ill-equipped with the
wrong uniforms and vehicles that were not armoured.
With regard to procurement, our focus in the future is on procuring necessary
equipment at the right price while protecting taxpayers. Unlike the previous
government, as I mentioned a moment ago, we actually buy equipment for the
military. For example, we have delivered four C-17 Globemasters, 17 new Hercules
aircraft, 1,300 new medium-support vehicles, and Leopard 2 tanks.
Therefore, honourable senators, as I have pointed out before in terms of the
budgetary obligations of the government, all departments are contributing to it,
but I would argue strenuously that the Department of National Defence has been
very well looked after in the budgeting of this government.
Senator Dallaire: Let me put it this way: This government better have
done that because while we were at war, they were in power and they did not
decide to pull us out; they decided to continue the war effort. Therefore, yes,
to put equipment in the hands of the troops at that time, not to say it was done
under duress, but it was done under absolute requirement because we were
actually facing an enemy.
That capital program did not start the day they came to power. It started
years beforehand, and in fact the Liberal Party in 2002 commenced the
revitalization of the air force and the army, and this government accelerated it
under those conditions, absolutely.
It is interesting that in 1987 the Conservative government brought in a white
paper, and two years later it crashed because of budgetary concerns. It was
unaffordable. At that time, there was 3 per cent annual growth. In 2008, this
government brought in the Canada First Defence Strategy. In 2010, they started
chopping that one as well. In the same light, that strategy required 2 per cent
annual growth and it was unaffordable. We argued that it was unaffordable, but
they said no, it is affordable. Now we have budget cuts on top of that, and we
are seeing these projects being downscaled and pushed to the right.
Without a policy framework, this government will continue giving us these
nuts and bolts responses to significant expenditures and requirements to be met
by the forces.
Can the leader tell us where the new defence policy framework for all this
stuff that is going on sits today and whether she will ask the minister to table
it or present it soon?
Senator LeBreton: Honourable senators, it was the previous government
that sent Canada to war in Afghanistan. They sent them into the desert with
green uniforms. There was no heavy-lift aircraft capability to get our equipment
there. The land-use vehicles they were using were like tin cans. They did not
protect anyone. They did not have proper tanks.
When we came into government, all this we committed to the Canadian Armed
Forces, including getting heavy-lift aircraft. We did not have to stand in line
and wait for the Russians to come and pick up our equipment. We were also
capable, with the C-17s, of responding immediately to disasters like Haiti,
unlike what the previous government did during the tsunami in Indonesia.
Honourable senators, I think it has been very clear that the monies budgeted
to the Department of National Defence have been properly utilized. They have
provided the equipment and the backup for the men and women in our forces.
With regard to the budgets, all departments have scaled back on expenditures.
I can assure honourable senators that the Department of National Defence, as I
mentioned a moment ago with regard to our procurement, is completely capable of
fulfilling all its duties within the mandated budget it has been given.
Senator Dallaire: Just a few clarifications, if I may. In terms of the
C-17 purchase, the project had been in existence for 10 years and was making its
way, just as the F-35 will be 10 years in gestation, because those major
projects need time. Yes, the present government acquired them while in power.
The tanks were already there. They were upgraded, and then new-generation tanks
were purchased, which was fine, to replace the upgraded ones. The LAV IIIs were
already there, and there was a need to upgrade because of the threat of that
mission. The government did that, but that was also already in the mill.
The government has implemented the capital program that the Liberal Party
created and has accelerated it. That is fine. I am not fighting that; I am just
asking whether it is affordable. Is the leader able to say that the Canada First
Defence Strategy is affordable? We are seeing all those projects moving to the
right and being downscaled; and this F-35 exercise, to me, is simply moving the
project to the right a couple of years because the government does not have the
funding envelope in the years it had planned to be able to expend that amount of
Can the leader say that all that stuff is not putting the Canada First
Defence Strategy in jeopardy? The minister himself said that he wanted a review
and that he wanted to table a review, but we are still waiting for it; it is
months late. Can the leader tell us when the review will come out?
Senator LeBreton: I hope everyone noted that Senator Dallaire talked
about the F-35.
Honourable senators, when we came into government, we increased funding and
support for the Canadian Armed Forces. We well remember the words of the former
Chief of the Defence Staff, "the decade of darkness." When one talks about
coming into office, what our government did not do is something that the former
government did when they came into government in 1993, when they scrapped the
helicopter program at great cost to the Canadian taxpayer.
Some Hon. Senators: Shame!
Senator Dallaire: I think it is important to read General Hillier's
books, because the decade of darkness we talk about is the 1990s. One of the
reasons we ended up, as the leader articulated, in a decade of darkness is that
by 1993 this country was going broke and in fact did not have the economic
credibility to buy a jeep, let alone to buy sophisticated equipment. Yes,
massive cuts happened in the 1990s and created that situation in the Department
of Defence, which made it very difficult for them to achieve the missions.
Fine; it was recognized in 2002. Capital programs were built up. The funding
line that the government took over had already been escalated by the Liberal
Party, as was the capital program, with the only exception being the Chinooks.
The Chinooks had been sold to the Dutch and we were not looking at replacement
at that time. The government brought in Chinooks, yet we have still not received
them. We just rented six, and one got shot down. The war is over, but we are
still waiting for the Chinooks.
Could the leader put the question to the minister whether he will present a
modified policy paper on the Canada First Defence Strategy, which is now deemed
to be unaffordable?
Senator LeBreton: White papers, green papers, blue papers; they are
all useless. There is no doubt, honourable senators, and I think it is obviously
acknowledged by many people, that there has not been a government — the previous
government or the government before that or the government before that — that
has made a commitment to the Canadian Armed Forces to the degree that this
Hon. Claude Carignan (Deputy Leader of the Government): Honourable
senators, pursuant to rule 4-13(3), I would like to inform the Senate that, when
we proceed to Government Business, the Senate will address the items in the
following order: Bill C-45, Bill C-24, Bill S-12, Bill C-27, Bill C-28, Motion
No. 53, committee reports 1 to 5 and, lastly, Inquiry No. 3.
Hon. JoAnne L. Buth moved second reading of Bill C-45, A second Act to
implement certain provisions of the budget tabled in Parliament on March 29,
2012 and other measures.
She said: Honourable senators, I am honoured to sponsor and commence debate
on Bill C-45, the jobs and growth act, 2012, legislation to implement parts of
Canada's Economic Action Plan 2012.
When I first read this bill, I was impressed with how the various components
provide for the individual, for businesses and for our country. This legislation
will protect the most vulnerable in our society, provide support for small
businesses and ensure that Canada will maintain its economic record — an
economic record born from the sound fiscal plans of our Conservative government.
With the global economic recovery still fragile, our government remains
focused on ensuring that Canada continues to offer the best environment to
create jobs and help businesses grow. Jobs sustain us, provide for a better
future and keep our economy strong.
It is a simple concept, but without jobs, there are no taxes to provide for
our health and social programs and to keep our economy going. On that front, our
performance has demonstrated that we are on the right track for the Canadian
economy and for Canadian families.
Canada has one of the best economic records in the industrialized world, and
all Canadians are benefitting from it as we once again face economic uncertainty
beyond our borders.
You will recall how in 2009, in an unprecedented global crisis, our
government responded with Canada's Economic Action Plan. The plan supported the
economy, protected Canadian jobs during the recession and invested in long-term
growth. The plan's successes quickly became clear.
For example, since July 2009, employment in Canada has increased by over
880,000 — the strongest job growth among G-7 countries over the recovery period,
with over 90 per cent of jobs created in full-time positions. In fact, 59,300
jobs alone were created this past month, in November.
Honourable senators, there are more positive statements about our successes.
The World Economic Forum says our banks are the soundest in the world. Forbes
Magazine ranked Canada as the best country in the world to do business. The
OECD and the IMF predict our economy will be among the leaders of the
industrialized world over the next two years. Our net debt-to-GDP ratio remains
the lowest in the G-7, by far. All three of the major credit rating agencies —
Moody's, Fitch, and Standard and Poor's — have reaffirmed Canada's top credit
rating. The list goes on and on.
What is more, a growing number of international leaders are pointing to
Canada as an exemplary model for the global economy. In the words of German
Chancellor Angela Merkel:
Canada's path of great budgetary discipline and a very heavy emphasis on
growth and overcoming the crisis, not living on borrowed money, can be an
example for the way in which problems on the other side of the Atlantic can
be addressed. This is also the right solution for Europe.
While praise for our achievements is encouraging, even a cursory glance at
news headlines about the economic turmoil in Europe and the United States — our
largest trading partners — underscores the need to avoid becoming complacent
about our economic future. There are many challenges and uncertainties still
confronting the economy and Canada is not immune to these global pressures.
Honourable senators, it is for these very reasons that we introduced Canada's
Economic Action Plan 2012 and why its implementation, which includes Bill C-45,
is so fundamental to Canada's continued economic well-being.
Bill C-45, the proposed jobs and growth act, 2012, includes initiatives that
will build a strong economy and create jobs; support Canadian families and
communities; promote clean energy and enhance the neutrality of the tax system;
and respect taxpayers' dollars. Specifically, this legislation will build a
strong economy and create jobs by extending the job-creating Hiring Credit for
Small Business, which will benefit over 500,000 employers and help them create
jobs; promoting interprovincial trade; improving the legislative framework
governing Canada's financial institutions; facilitating cross-border travel;
removing red tape and reducing fees for Canada's grain farmers; and supporting
Canada's commercial aviation sector.
The bill supports families and communities by improving Registered Disability
Savings Plans; helping Canadians save for retirement by implementing the tax
framework for Pooled Registered Pension Plans; improving the administration of
the Canada Pension Plan; and strengthening the Canadian Environmental Assessment
Bill C-45 promotes clean energy and enhances neutrality of the tax system by,
among other measures, expanding tax relief for investment in clean energy
generation equipment and phasing out tax preferences for the mining and oil and
gas sectors. The bill also respects taxpayers' dollars through changes such as
taking landmark action to ensure the pension plans for federal public sector
employees are sustainable and financially responsible; closing tax loopholes;
and eliminating duplication.
In my remaining time, I want to highlight just a few of the plan's key
initiatives in more detail, starting with key reforms to the Registered
Disability Savings Plan, or RDSP.
In Budget 2007, we announced the introduction of the RDSP to help parents and
caregivers save to ensure the long-term financial security of children with a
severe disability. The government reviewed the RDSP program in 2011 to ensure
that it continues to meet the needs of Canadians with disabilities and their
families. Based on feedback received during the review, the proposed jobs and
growth act, 2012, proposes a number of measures to improve the plan, including
providing greater flexibility to make withdrawals from certain RDSPs.
Under current rules, any Canada Disability Savings Grants, or CDSGs, and
Canada Disability Savings Bonds, CDSBs, paid into an RDSP in the preceding 10
years generally must be repaid to the government if any amount is withdrawn from
the RDSP; if the RDSP is terminated or deregistered; or the RDSP beneficiary
ceases to be eligible for the Disability Tax Credit or passes away. This is
known as the "10-year repayment rule."
To provide greater access to RDSP savings for small withdrawals, while still
supporting the long-term savings objectives of these plans, Bill C-45 proposes
to introduce a proportional repayment rule that will apply when a withdrawal is
made from an RDSP.
The proportional repayment rule will require that for each $1 withdrawn from
an RDSP, $3 of any CDSGs or CDSBs paid into the plan in the 10 years preceding
the withdrawal be repaid, up to a maximum that would be repaid under existing
Similarly, today's legislation proposes changes to the rules governing
maximum and minimum withdrawals from RDSPs. These changes will provide greater
flexibility in making withdrawals from an RDSP and will ensure that RDSP assets
are used to support the beneficiary during their lifetime.
I want to stress for senators how important this program and these
improvements are to Canadians with disabilities and their families. In the words
of the Toronto Star's Alison Griffiths:
The RDSP . . . means that the disabled have a shot at accumulating a
retirement nest egg, rarely possible for a group with low or non-existent
Honourable senators, clearly this bill provides essential tax relief for the
most vulnerable Canadians, but it also provides a new opportunity for many more
Canadians to save for their retirement.
Today, I am very pleased to note that the government is also implementing
changes to Canada's pension landscape that will make saving for retirement
easier for millions of Canadians.
Bill C-45 will make changes to the Income Tax Act and the Income Tax
Regulations to accommodate Pooled Registered Pension Plans, or PRPPs, a new
low-cost private pension option for the millions of Canadians currently without
access to a workplace pension plan, including employers, employees and the
This is important because it is estimated that more than 60 per cent of
Canadians do not have access to a workplace pension plan. While participation in
retirement savings vehicles like pension plans and Registered Retirement Savings
Plans, or RRSPs, is reasonably high for middle- and higher-income earners, some
Canadians may not be taking full advantage of these personal retirement savings
With this initiative, our government is helping to ensure that our retirement
income system remains effective and well-balanced in helping Canadians achieve
their retirement goals, while securing its long-term strength and
Honourable senators, these are all important changes that will ensure that
PRPPs will be a reality in the very near future. In the words of the Canadian
Federation of Independent Business:
RPPs will be an excellent addition to the retirement savings options for
small business owners and their employees. Small firms tell us that the main
reasons 80 per cent of them do not have any form of company retirement plan
for the business owner or their employees are the costs and administrative
burden of offering a plan. . . . we expect PRPPs to move the ball forward on
Looking to the future, it is also important to focus on the drivers of growth
and job creation: innovation, investment, education, skills and communities.
The new measures in Economic Action Plan 2012 will strengthen and draw upon
entrepreneurship to drive Canada's economy. Canada's businesses, entrepreneurs
and innovators have proven time and again that they are up to the task, provided
they are given the opportunity.
Before coming to the Senate, I worked in one of the most innovative
agricultural commodities — canola. Canola was designed by Canadian researchers
and now provides a healthy culinary oil for Canadians and consumers around the
world. I personally know that the support of this government for innovation is
very important for the development of new ideas, new industries and new jobs.
For starters, this transformational agenda includes a new approach to
supporting entrepreneurs, innovators and world-class research. As a world
leader in post-secondary research, combined with a highly skilled workforce,
Canada has the strong fundamentals required for groundbreaking innovation. Our
government provides significant resources to support research, development and
technology. In fact, Canada invests more in higher education research and
development as a share of the economy than any other G7 country.
Our Scientific Research and Experimental Development Tax Incentive Program,
commonly known as SR&ED, which provided more than $3.6 billion in tax assistance
in 2012, is currently one of the most generous systems in the industrialized
world. Bill C-45 proposes design improvements that will better align the tax
credits received with the actual business expenditures on SR&ED projects, as
well as a measured reduction in the general tax credit rate.
These improvements will affect the calculation of overhead expenditures and
arm's-length contract payments. First, to limit instances where the rules result
in tax credits being provided for overhead costs that exceed the actual costs
incurred, today's legislation proposes to gradually reduce the "prescribed proxy
amount" — used to compute overhead expenditures under the so-called "proxy
method" — from 65 per cent to 55 per cent of direct labour costs.
Second, to remove recognition from SR&ED relief for the profit element of
arm's-length contract payments, today's bill proposes to allow only 80 per cent
of these contract payments to be used for the purposes of calculating the SR&ED
tax credits. This change is consistent with the current tax treatment of non-arm's-length contracts and will target the tax credits to SR&ED expenditures
incurred, as opposed to profit margins.
The legislation before us today also proposes a reduction in the general
SR&ED investment tax credit rate. The recent corporate income tax rate
reductions, from over 22 per cent in 2007 to 15 per cent in 2012, have
effectively increased the relative generosity of the SR&ED tax incentive program
and have generated growing pools of unused investment tax credits. Effective
January 1, 2014, the general SR&ED investment tax credit will be reduced from 20
per cent to 15 per cent.
I would like to assure you that the savings generated by these measures will
be invested in programs to provide direct support for business innovation in
Finally, honourable senators, this past August, our government also launched
a study to better understand why firms choose to hire SR&ED consultants to
prepare their SR&ED claims on a contingency fee basis and determine whether any
action is required. Small and medium-sized businesses sometimes rely on tax
preparers charging on a contingency fee basis to prepare their SR&ED claims.
Commentators have suggested that these fees may be as high as 30 per cent of
SR&ED benefits, or maybe even more. The government is concerned that high
contingency fees charged by tax preparers may be diminishing the benefits of the
SR&ED tax incentive program to Canadian businesses and the economy.
Honourable senators, we are making it easier for Canadian businesses to
compete successfully in an interconnected global marketplace and more attractive
for others to invest here in Canada. The end result, of course, is more and
better jobs for Canadians and a healthy and thriving economy. However, at the
same time, it is important to strike a balance between our economic and our
environmental priorities. Canada is an energy superpower with one of the world's
largest resource endowments of both traditional and emerging sources of energy.
We are increasingly regarded as a secure and dependable supplier of a wide range
of energy products.
Since 2006, the Government of Canada has taken significant steps to establish
our country as a global clean energy leader through regulatory actions,
investments in technology and innovation, and broad-based incentives. The
government has also supported these sectors through the tax system, by expanding
eligibility for the accelerated capital cost allowance for clean energy
generation equipment. The accelerated CCA for clean energy generation equipment
applies to a broad range of specified equipment that generates or conserves
energy by using a renewable energy source, using fuels from waste or making
efficient use of fossil fuels. Through the jobs and growth act, 2012, the
government proposes to expand this initiative.
Waste-fuelled thermal energy equipment produces heat using waste sources.
Today's legislation proposes to expand the eligibility of the accelerated CCA
for clean energy equipment to allow waste-fuelled thermal energy equipment to be
used in a broader range of applications, including space and water heating. For
example, wood waste could be used as an alternative to heating oil for space and
water heating in a shopping centre.
Clearly, today's act — along with Economic Action Plan 2012 — will further
unleash the potential of Canadian businesses and entrepreneurs to innovate and
thrive in the modern economy for the benefit of all Canadians for generations to
Honourable senators, through this comprehensive and ambitious plan, we will
maintain and strengthen our advantages by continuing to pursue those strategies
that made us so resilient in the first place: responsibility, discipline and
This bill marks an important milestone in our long-term commitment to jobs,
growth and long-term prosperity and a brighter future for all Canadians.
Hon. Joseph A. Day: I wonder if the honourable senator would entertain
Senator Buth: I would be pleased to do so.
Senator Day: Thank you. I followed the honourable senator's speech
with a great deal of interest, as she might understand, and I thank her very
much for her presentation as the sponsor of the bill. However, when she got to
the SR&ED, the Scientific Research and Experimental Development program, she
talked about the contingency fee initiative. I did not recall that being
discussed when we dealt with the bill, but I might have missed it. Could the
honourable senator please elaborate on that aspect?
Senator Buth: For non-arm's-length contracts under the SR&ED tax
credit program, companies could claim the entire amount of the contract under
SR&ED. What this government is doing, essentially, is reducing the amount that
can be claimed to 80 per cent so that it does not include the profit component
of the non-arm's-length contract. That makes it now consistent with arm's-length
contracts under the legislation.
Senator Day: I thank the honourable senator. I understand the 20 per
cent non-arm's length. That is also the contingency fee aspect that she dealt
with; that is, the non-arm's-length contract is one item; the contingency fee is
the other. It was the contingency that I did not understand. If they are tied
together, however, I understand where it was.
Senator Buth: Sorry, honourable senators. I mentioned what the
government is now doing in terms of contingency fees. Some consultants provide
assistance to businesses for their SR&ED applications, so they charge
contingency fees. That is not included in the legislation, but it was a comment
that the government has now entered into consultations to determine what types
of fees are being charged by consultants for preparing the SR&ED tax credits and
whether the government should take a look at whether those fees are excessive.
Senator Day: I thank the honourable senator for that comment. That is
helpful. I thought maybe I had been out of the room when we had discussed that
when dealing with the bill.
The Hon. the Speaker: Continuing debate?
Senator Day: Honourable senators, I will begin by congratulating
Senator Buth on her first speech dealing with a budget implementation bill as
sponsor of the bill. I would also like to congratulate Senator L. Smith, for I
think since the last time I spoke on a budget implementation bill, Senator L.
Smith has joined the committee as deputy chair. I congratulate him and thank him
and the other new members of the Finance Committee for agreeing to serve on this
very important committee of the Senate dealing with the fundamental aspect of
parliamentary oversight of the government's request to spend money.
It is critically important that we spend some time dealing with bills that
relate to finance. It is also critically important that we understand those
matters, because one of our fundamental roles as parliamentarians is the
oversight, on behalf of the people of Canada, of government requests for the
spending of funds.
Bill C-45 that we are dealing with is the second budget implementation bill
for this year, honourable senators. Senator Buth has read out the title to you,
but I will take the liberty of doing so again. The title is "A second Act to
implement certain provisions of the budget tabled in Parliament on March 29,
2012 and other measures."
Honourable senators, it is as it has been in the past. I wish I could stand
up and say that I do not have to talk about this deal anymore because the
government has seen the light, but they have not.
As is indicated by the title, there are "other measures" in this bill that
make our role quite different from the traditional role that we had in dealing
with finance bills.
Honourable senators will know that we cannot begin the process with respect
to finance here in the Senate. We have an oversight role, the same way that the
House of Commons has an oversight role of the executive with respect to this.
However, because of party discipline, that oversight tends to be pretty weak in
a majority government. Therefore, the oversight role that comes here is even
more critical and more important from the point of view of the public, so that
they can know that the public purse is being protected by requests from the
The "other measures" that appear in this bill, honourable senators, have
resulted in us changing the way we deal with bills like this budget
In the past, we had a tradition that we would recognize, scrutinize and study
these bills. I am looking at several honourable senators who have been on the
Finance Committee in the past. We might have felt that an amendment would be
appropriate, but it would not have been deemed appropriate for us to amend a
finance bill. We would study it. We would make observations, if observations
were appropriate. However, a finance bill is government policy in the other
place. It is a matter of confidence. Therefore, we would deal with these bills
in quite a different manner than a normal bill. We would have no hesitation in
amending any other bill that came through other than a finance bill.
The government has decided to change the way they are handling budget
implementation now, with a finance bill. They have done so by putting in other
matters, many of which, admittedly, have nothing to do with the budget or with
finance; it is just a convenient way to deal with some other matters.
I want to tell honourable senators that I have no difficulty in recognizing
the importance of omnibus bills. I would support an annual one or two omnibus
bills when an omnibus bill is dealing with a number of small matters that would
not warrant a single standalone piece of legislation, whether it be an amendment
or a correction. That kind of thing comes from many, many different departments.
We know that, and we know that the Department of Justice has a number of
individuals who pick up all these small, little pieces. They keep putting them
into one spot, and that one spot could go into an omnibus bill that we could
then deal with.
However, honourable senators, in order for the omnibus bill to move through
quickly, governments in the past have decided that, "Well, there are only a few
of them initially, so, okay, we will just tie it in with finance. We know that
budget implementation and finance have to be moved through quickly, so we can
just tie these other ones in there. They will not get a full hearing as a
result, and they will move them through nice and quickly."
That is how this began. It was something that maybe innocently began when
there were not enough to have a standalone omnibus bill. However, honourable
senators, this has grown into something very serious. I have spoken on this in
the past, and many others have, as well.
We received a bill that is 414 pages, and a good portion of this has nothing
to do with finance, budget implementation or a budget. There are 516 clauses,
and there are 60 different pieces of legislation that are amended by Bill C-45.
Honourable senators, we now have to adjust our practice. That is what I would
like to spend some time talking about today. We are in the process of adjusting
our practice to meet the change in practice of the executive branch that has put
to the House of Commons, on short notice, a bill like this, following which the
House of Commons sent it to us last Thursday. They are expecting to have it back
in the next two or three days. That is an insult to the role that we have to
play as overseers of the public purse.
Honourable senators, how will we adjust to this particular matter? One of the
ways is to do a pre-study, and that is an adjustment. That is an adjustment
because we are normally a chamber of sober second thought. We normally look at
the changes that are proposed to the executive's proposed legislation in the
form of a bill. The House of Commons will make some amendments, and they come
over here. They do not go back up to the executive and get rewritten; they come
When we do a pre-study, we lose the advantage of that. We lose that role that
is critical to Parliament. We lose the role that the Senate was created to
perform. We are giving up on that in order to adjust to a new practice.
Senator Mitchell: It is an assault on democracy.
Senator Day: This has not happened only this year. This has been
happening for a number of years.
Honourable senators, Senator Murray spoke about this when he was in this
chamber. I will read what he said regarding amendments to the Navigable Waters
Protection Act. I point this one out in particular, because honourable senators
will find, when I speak at third reading on this particular matter, that it is a
piece of legislation that has arisen again. Yet, Senator Murray originally spoke
to it in 2009:
The amendments to [that legislation and other proposed legislation] are
far-reaching. In some cases, there are fundamental changes; in a few cases,
there are historic changes. Most important, there are strongly held
differences of opinion on these issues among those Canadians who are most
knowledgeable, most concerned and most directly affected by these proposals.
. . .
In the interests of sound public policy and, indeed, in the interests of
the democratic values we espouse, we have a duty to hear them. Their
concerns about adverse legislation should not be brushed aside by sneak
attack, which is what happens when extraneous measures are forced through in
an omnibus budget implementation bill.
"Omnibus budget implementation" — two things being put together that he
describes as a sneak attack.
What is happening is not that a budget or a stimulus bill is being passed
because, indeed, it will be passed. What is happening is we will be
encouraging this government to tread on the absolute democratic rights of
Canadians to have all legislation heard, considered, vetted and given the
appropriate thought. Canadians have a right to demand this of us.
Those, honourable senators, are comments made two years ago by Senator Yoine
I do not know if this gentleman went to St. FX, but in 2005, another Nova
Honourable senators, we have before us a massive omnibus bill of some 23
This was in June 2005.
Bill C-43 ought to have come before us in at least three or more separate
bills, one to deal with the budget measures per se, one to implement the
offshore agreements that were not mentioned by my learned colleague and one
to provide the legal framework for the government's Kyoto plan.
That, honourable senators, was a statement against omnibus budget bills by
Senator Donald H. Oliver in 2005, and I think at the time I was agreeing with
him. That was in 2005. That is merely, honourable senators, to point out that
this is not a new practice. His adjective was "massive" omnibus bill. It is very
important to understand that I have no objection to an omnibus bill. My
objection is to tying omnibus to budget implementation to strike it through.
That is where the problem lies, honourable senators.
What Senator Oliver was referring to was a massive omnibus bill that was
slightly over 100 pages. Honourable senators, we now have one that is well over
Senator Mercer: Four hundred pages! If the other one was massive, what
adjective can you give to this one?
Senator Day: Where will we be if this continues?
Senator Mercer: It is gargantuan!
Senator Day: I have suggested in the past how to deal with this, but
let me read to you Observation No. 5 from one of the Finance Committee reports.
In that particular matter, the Finance Committee is suggesting options,
honourable senators, as to what could be done. One of the recommendations
suggested that options that might be considered by the Senate for dealing with
such omnibus budget bills in the future include dividing the bill into coherent
parts and dealing with them separately allowing committees to do their job
Senator Mercer: Good plan.
Senator Day: Another suggested deleting all non-budgetary provisions
and proceeding to consider only those parts of the bill that are budgetary in
Senator Mercer: I like that one.
Senator Day: Another observation proposed defeating the bill at second
reading on the grounds that it is an affront to Parliament. That is where we are
right now, we are at second reading, honourable senators, and I want honourable
senators to remember that one.
The observations continued by suggesting the establishment of a new rule of
the Senate prohibiting the introduction of budget implementation bills that
contain non-budgetary measures.
I hope honourable senators are listening to that one as well because
something must be done, honourable senators, or the integrity of Parliament will
suffer. There are four options, honourable senators.
I want honourable senators to remember that for this particular bill one of
those options was to divide the bill. That is what Senator Oliver was talking
about — divide the bill into various portions.
Senator Mercer: We are listening, Don.
Senator Day: This particular bill, honourable senators, was divided.
It was at one time Bill C-45 and Bill C-46. Bill C-46 dealt with parliamentary
pensions. That was taken off and a separate bill was created. The precedent is
clearly established that that can be done at the early stages. That would be a
reason why we would want to know what is in these bills to try to encourage that
to happen. I think it is important, honourable senators, to recognize that has
happened in this bill.
Honourable senators, there is another way that we could instruct the
committee. In our normal process, this bill will now be sent to committee after
second reading. One way is to defeat the bill at second reading. Another way is
to instruct the committee to divide the bill. It is clearly authorized under the
rules to instruct the committee to divide the bill. That could either be a
mandatory order or an optional order for the committee to consider that.
Remember that the bill was split once before it even got here, but there is
precedent for the Senate, when it receives the bill, to do its normal work, to
instruct the committee to which the bill will be sent to look after that by way
of dividing it.
Honourable senators, if those options do not appear terribly exciting for
whatever reason, I would suggest that the pre-study is one of the processes that
we are beginning to adopt with respect to this action by the government of
including omnibus bills with budget bills. One of the steps we are taking here
is to move toward more frequent pre-study. I know that there are many who object
to that, and I understand that and have heard those arguments in this chamber
before. However, it is a self-defence mechanism; it is a practice we are
developing to be able to defend the rights of the people of Canada.
I know we are dealing with the principle of the bill at second reading and I
will not get into any of the details but I can talk about the process and
procedure. In this case, six different committees were authorized by this
chamber to look at portions of the bill. That was a compromise that we made
between both sides of this chamber in recognition that there is absolutely no
way we would ever do any work on this bill that would be meaningful if we waited
to receive it from the House of Commons, as we received it less than a week ago.
Another matter we may want to consider further is why we are getting these
bills so late in time.
Some Hon. Senators: Hear, hear.
Senator Day: This bill is not the only one. This is certainly one of
the more important ones.
Finance looked into the major portions of the bill. We had 12 two-hour
meetings on the bill, honourable senators. Banking had five meetings; Energy had
six meetings, Aboriginal Peoples had four meetings; Transport had four meetings;
and Agriculture had three meetings. The total for the Senate is 34 meetings,
almost 50 hours of consideration of this particular bill, and 139 witnesses.
That information is important to put on the record as an example of the
Senate trying, under difficult circumstances, to do its job in this particular
Honourable senators, I think we should thank the other committees that have
looked into this particular bill and the portions thereof. The members of the
Finance Committee and I would like to thank all the members of the other
committees that came before our committee and told us about what they found in
the bill, what challenges there were and what witnesses had been brought before
them so that we in the Finance Committee would be in a position to deal on a
clause-by-clause basis with the entire bill.
This bill will not be done clause by clause by six different committees; it
will be done by, I expect, the Finance Committee. We are now in a position to do
clause by clause on this bill when the bill is sent to us. However, that does
not mean we have done a job that we would like to stand up and say we are really
proud of. There are many other items we would have liked to look into, but to do
the job that we would expect to do with any other piece of legislation with
respect to all of the aspects of this particular bill, honourable senators, we
would not be finished until next May or June. There are 60 or 70 statutes that
have been amended. There is no way we could do so, but at least we know what is
in the bill. We have superficial knowledge of what is in the bill. That is why I
asked Senator Buth that question because I thought I had a bit of a feeling for
what was in the bill, having gone through the 50 hours of hearings on it. I
could not remember the contingency aspect, but as she explained in reviewing the
one aspect, there was some work the government was doing in addition to what in
fact is in the bill.
Honourable senators, I would submit that at second reading, on principle,
this is not the kind of bill we want to encourage. There are options that we
have, and I have gone over those options with honourable senators. If honourable
senators see fit to send the bill to the Finance Committee, then the committee
has done its due diligence to the extent that we could handle the bill on a
Hon. Terry M. Mercer: Would the honourable senator accept a question?
Senator Day: Yes.
Senator Mercer: Honourable senators, that was an impressive speech,
and I thank Senator Day and the committee for all their hard work. They had 34
meetings over 49 hours and 139 witnesses. Could Senator Day tell me how many
amendments were proposed to the bill?
Senator Day: The amendments at this stage would be coming from the
House of Commons or they would be proposed during this second reading debate. I
have not proposed any amendments because if I proposed an amendment to one
portion, that would diminish the other portions. There are so many amendments
that should be proposed to this bill. I am aware that over 3,000 amendments were
proposed at committee stage and at third reading debate in the House of Commons.
Senator Mercer: During all these witnesses and all these hours of
meetings, there have been no amendments made. Six different committees had
meetings on parts of this bill. Did any of those committees attach observations
to their reports back to the Finance Committee?
Senator Day: Each of the committees prepared reports. The reports have
been made available and in fact tabled here for each of us to look at. I hope
that the committees will speak on those reports and tie them into debate at
third reading, when we get to third reading on Bill C-45.
Senator Mercer: How about the observations?
Senator Day: The report is in itself an observation. The reports are
here; there are five of them. We in the Finance Committee did not file a report.
Hon. Grant Mitchell: Honourable senators, I would like to build on the
presentation by my colleague Senator Day. I would like to begin by saying that I
always enjoyed Senator Gerstein's presentations; he is a happy warrior. He was
usually the sponsor of the government's budget bills and gave a very positive
version of events and the statistical and economic analysis, and I must say that
Senator Buth has certainly followed in that tradition. She is a happy warrior.
She has certainly risen to the occasion and found those bits and pieces of data
that somehow seem to support the idea that this Conservative government is
actually competent enough to manage an economy or do very much of anything else.
I am provoked to get to my feet and fundamentally argue that there is very
little evidence to suggest that they have done any kind of capable job, let
alone a competent one, with the economy or with any number of other initiatives.
I would like to outline that to further the debate and to clarify some
unfortunate misunderstandings that have been perpetrated by Senator Buth.
I begin with a rhetorical question: Why does anyone believe that a
Conservative government can actually manage an economy? All the evidence is to
the contrary. Since this government took over, unemployment is up somewhere
between 20 and 25 per cent. Do honourable senators realize that 1.4 million
Canadians are unemployed in this country today? This government, which stakes
everything on creating jobs and development and economic growth, has got 1.4
million Canadians unemployed.
When Senator Buth talks about how our GDP percentage of whatever compares
with the G8, just imagine what it means in human terms that 1.4 million people
are unemployed. That is exactly the case. Not only that, but when it comes to
the secondary target they have, which is economic growth, do honourable senators
know what the economic growth in Canada was in the third quarter of this year,
in the three months leading up to September? It was 0.1 per cent for that
quarter. When factoring in the full three quarters, we are annualizing a 0.6 per
cent GDP growth. This idea that somehow Canada has the strongest economy in the
whole world just — if it were not for northern Alberta, it would even be worse.
U.S. growth this year is going to be 2.7 per cent. This economy that they
have been giving advice to — did the Prime Minister not go down and give advice
to the U.S. government on the economy? Maybe he should have taken some of his
own advice because whatever he said seems to be working there, but it is sure
not working here.
Unemployment is up 25 per cent. Youth unemployment is at about 15 per cent.
There are 1.4 million people unemployed. The government has run record deficits.
They have turned a $12 billion surplus around to a $56 billion deficit at the
peak. Now, they continuously miss their deficit reduction targets. They were
just out by 30 per cent this year. It was going to be 21. I think it is over 19
and now it is going to be up $7 billion.
What can we believe? It is not just the F-35 data one cannot believe; it is
also anything to do, it seems to me, with fiscal management: a $150 billion
increase in debt to this point, give or take; it might be $130 billion, as it
depends whose figures are used. It is projected to be upwards of $200 billion.
What part of all these figures would indicate to anyone that this government
is competent to run an economy? Which one? I do not see it.
They will say, "It is not really our fault," because that is what they are so
good at. They do not get that leadership is not about making excuses; leadership
is about getting results. They will say, "You know what, there is a worldwide
recession and we are doing better than everybody else. By the way, the banks are
so strong." I love that one. Who was the Prime Minister and what was he saying
in opposition about how we should change the banks, restructure them and
deregulate them? We would be in a fine pickle then. At least we have sustained
banks because of proper fiscal management of the economy by the Liberal
What they forget is that Mr. Chrétien and Mr. Martin, who ran nine
consecutive surplus budgets, were confronted with the 1998 meltdown of the
European banking system. They were confronted with 9/11 and the collapse of the
stock market. Stock markets in North America were cut more than in half. They
were burdened by a $42 billion — I know you do not like to hear this, but it is
true. They were burdened by a $42-billion deficit that we had to recover from.
Thank God we had 13 years of Liberal government. It is just too bad we do not
have it right now, because maybe 1.4 million people would not be unemployed.
Some Hon. Senators: Hear, hear!
Senator Mitchell: Let us go on. The government says it has this
objective: The most important thing we can do — and they may well be right — is
to diversify oil and gas markets for our oil and gas products. Of course, there
is a good deal of urgency in that; we have a single export market for our oil
and gas. That is the U.S., and it is very likely to be self-sufficient in both
of those products within — and this is Mr. Prentice saying this, not me — five,
ten or fifteen years. One would think that if the government's stated objective
was to diversify markets and get a pipeline built, if they had seven years in
power, if they had a prime minister who calls himself an economist and knows how
to run a country, he would at least have been able to move that pipeline project
along. Are we any closer to getting a pipeline to diversifying our markets than
we were seven years ago? Absolutely not.
Why is that? I do not believe that they have been competent — no leadership —
to run that file, and it is ending up pretty much like where our economy is
I should point out some other economic figures. I will come back to my point
about the pipeline.
Canada is not even in the top third of OECD countries when one compares the
total central government debt as a percentage of GDP, and it is even worse if
one compares all of the debt of government in the country. We are not even the
fiftieth percentile when it comes to domestic growth, GDP growth this year.
I go back to how it is that this government has so incompetently handled the
pipeline file. First, they do not get that the world has changed, that now it
all comes down to social licence. If the government is sending the wrong
messages, it does not matter how hard Enbridge tries to prove that it can built
a pipeline safely with environmental responsibility; when the government is
sending these messages over and above that, they are establishing an almost
impossible situation within which to gain social licence. What they have to
realize, and they have not, is that you will not get those projects unless you
get social licence, and you will not get social licence unless you establish
once and for all that you can do the environment and deal with climate change.
When they talk about shutting down the offshore spills office in B.C. — and
they shut it down — when the single greatest problem people have with that
pipeline is offshore spills, what kind of message does that send? The senators
here and the ministers over there get up and start to attack environmental
groups, foreign foundations that fund environmental initiative and debate, when
Keystone is hinging on getting environmental support. It needs environmental
support if it is ever going to be built. It needs to prove its environmental
bona fides. What possible good does it do to send a message attacking these
environmental groups? I notice that the senators over the other way and even the
minister may finally be getting the message that you do not start attacking
those people when you are trying to gain social licence and establish the
credibility on the environment.
When you shut down the National Round Table on the Environment and the
Economy, when you shut down the Experimental Lakes Area, when you gut the
environmental process, what does that do? It sends a message to the people, the
people of B.C., the people of Canada, the international public, that they are
not going to give you the credibility because you are not building the
credibility on the environment. You will not get the social licence. I think it
has been a disaster, and this government has been incompetent in its ability to
move that along.
Second, what is profoundly missing is any sense of national leadership. The
premiers of B.C. and Alberta are at odds over the pipeline. One would expect
that perhaps they would be; they represent provincial interests. Premier Clark
gets paid to do that for B.C. and Premier Redford gets paid to do that for
Alberta, but who is representing the national interest? Where is the Prime
Minister? When the premiers asked to meet with him to establish some sense of
arbitration, some process of mediation, where is the Prime Minister? Some of the
most significant oil energy leaders in the country are saying the Prime Minister
should fulfill this role.
The premiers asked to meet with the Prime Minister at the November conference
in Halifax. The Prime Minister turned it down. We are one of the only Western
industrialized nations that do not have a national energy strategy or a national
environment strategy. How can it be that a government can meet the kind of
challenges facing this country on the economy, the environment and energy if the
Prime Minister has cut and run? The Prime Minister is nowhere to be seen. He has
a role to lead. There is no national leadership. He cannot manage the economy
and cannot even build a pipeline in Canada.
Senator Buth said this is an energy superpower. The Standing Senate Committee
on Energy, the Environment and Natural Resources pointed out that that status,
if it exists at all, is absolutely in peril. The only way you get out of that
peril is through national leadership, and there is none. Unbelievable.
Senator Mahovlich: It sounds like we are on the Titanic.
Senator Mitchell: Third — and this is a kind of a micro-level
illustration of how poorly the government can manage basic government
responsibilities — is meat. Four years ago 22 people died on this government's
watch because of problems with listeriosis. We have recently had the spectre of
an E. coli outbreak, which has not killed anyone but has certainly made them ill
and has certainly damaged the agricultural economy's ability to export and so
on. It is not that this was a surprise. The government knew it had some problems
in this sector. It is not that they say they do not have the resources, because
Minister Ritz has said over and again that we have more money, millions; we have
hired hundreds and hundreds more people. It was not a surprise; they have
experience; they have money; they have people. What do they not have? They do
not have competent management. What would it take? What would that minister have
to do to lose his job? I know, I know. Why do you not stand up and tell us how
much you hate those environmental NGOs, because you did such a good job of
sending the right message around the world by saying that?
I can go on, of course, but I would like to finish by saying that if ever
there was an indication of clear incompetence, it is a government that refuses
to accept science. Climate change is a huge issue. If honourable senators think
dealing with climate change will hurt an economy, just talk with the people in
New York and see how badly climate changes hurt economies.
If honourable senators talk to Justice Cohen, who has attributed the
disappearance of 9 million sockeye salmon three years ago in large part to
climate change, and talk to people on the East Coast fishery who do not have
jobs, and talk to people in the forestry industry who have lost jobs, and talk
to the people of the North who see their community and their way or life and
their surroundings melting away and with it their economy and their jobs, the
fact is that we need leadership on climate change. We need a national
environmental strategy. We need a national energy strategy. We need some
leadership on unemployment. We have 1.4 million Canadians unemployed. I do not
know where it is that Senator Buth can actually stand there and say that somehow
she is working with an efficient, competent, capable government, because all the
evidence is absolutely to the contrary. It is on that basis that I find myself
having to vote against this bill.
I mean it!
The Hon. the Speaker: 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?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
(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 Buth, bill referred to the Standing Senate Committee on
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons with Bill C-50, An Act for granting to Her
Majesty certain sums of money for the federal public administration for the
financial year ending March 31, 2013.
(Bill read first time.)
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
(On motion of Senator Carignan, bill placed on the Orders of the Day for
second reading two days hence.)
Hon. Linda Frum moved third reading of Bill S-12, An Act to amend the
Statutory Instruments Act and to make consequential amendments to the Statutory
Hon. Mac Harb: As honourable senators who have read Bill S-12 will
know, it has three main provisions. It gives regulation makers express power to
use open or ambulatory incorporation by reference in regulations without any
parliamentary oversight; it puts an obligation on regulation makers to ensure
that the document is accessible; and it provides for an exception to a citizen's
liability unless, at the time of the alleged contravention, the incorporated
document was accessible as required by proposed section 18.3 or it was otherwise
accessible to that person as stipulated in proposed section 18.6.
Unfortunately, that is not all that Bill S-12 will do if passed in its
present form. As I stated in my comments at second reading, Bill S-12, as
presented, undermines democratic principles by eroding Parliament's oversight of
legislation, and it will make criminals out of otherwise law-abiding citizens
who will not have adequate access to the content of Canadian laws.
When Justice Minister Nicholson appeared before the Legal and Constitutional
Affairs Committee, he was asked about the proposed lack of parliamentary
oversight on the use of incorporation by reference. He replied that
incorporation by reference is already being used by Canadian regulation makers
and that this bill would not really make much of a practical difference. In
fact, I agree. I found that it has been used at least 170 times since 2006 and,
more often than not, without the express authorization of Parliament.
This bill in its present form opens the doors for unlimited use of open
incorporation by reference, this in direct contrast to the recommendation of the
Standing Joint Committee on Scrutiny of Regulations and the established
practices of other jurisdictions, such as Ontario and Manitoba here in Canada
and in other places such as Australia and New Zealand, which have laws that
limit the use of open incorporation to specific instances determined on a
Which approach is better, one would ask. In fact, the Chief Legislative
Counsel of the Department of Justice, John Mark Keyes, pointed out to the
That is the very question that before this committee and before these
houses; namely, which of those approaches is the better one?
I would argue that the best approach is one that protects the constitutional
power of parliamentary oversight and the right of Canadians to have access to
the laws under which they are governed. The unfettered use of open incorporation
by reference without limit on sub-delegation and clear guidelines on its use
does neither, and it can never be seen to be the best approach.
My colleagues on the Senate Legal and Constitutional Affairs Committee and
the witnesses who appeared before the committee raised some very serious
concerns. Even those witnesses who were generally in favour of a clear federal
policy on the use of incorporation by reference found serious flaws in Bill
Ultimately, amendments were presented that would have mitigated some of the
worst excesses of the bill and protected both Parliament's legislative authority
and Canadians' rights. Unfortunately, these amendments were voted down by the
government members on the committee.
In his statement to the committee, Minister Nicholson claimed:
[S-12] is a response to the concerns expressed by the Standing Joint
Committee on Scrutiny of Regulations and aims to create the necessary legal
certainty around the use of this drafting technique.
The bill provides certainty all right, but what is certain is that the
government wants Parliament to give it carte blanche by eliminating
parliamentary oversight through the increased use of open incorporation by
In no way does this bill as presented respond to the joint committee's
concerns about the ill-advised and illegal use of open incorporation by
reference. In fact, this bill does just the opposite. The joint committee worked
diligently in a bipartisan fashion to uphold the principle of parliamentary
legislative authority and to help regulation makers avoid the pitfalls
associated with sub-delegation. While Parliament is empowered to delegate its
authority as it sees fit, Bill S-12 gives these delegates express authority to
use open incorporation by reference in regulations without parliamentary
oversight. This, in turn, hands legislative authority to a third party when
external material as amended from time to time is incorporated by reference. The
future evolution of the rule or regulation is out of the regulation makers'
hands and is never subject to a parliamentary review.
At committee, witnesses from the Canadian Standards Council explained how
they currently ensure that international regulations that were incorporated by
reference met Canadian standards, not only technical standards but also in terms
of official languages requirements. This process may not happen under the new
legislation. We would have no control over the continued application of the
rules as they change from time to time.
In an attempt to limit the damage that could be caused by a loss of oversight
over federal law, Senator Fraser introduced an amendment, moving:
THAT Bill S-12 be amended in clause 2,
(a) on page 1, by adding after line 13, the following:
"(1.1) In this section, "document" means any federal or provincial
(b) by replacing lines 18 to 2 on page 1, and lines 1 to 7 on page
2, with the following:
"be incorporated only if it is a regulation". . .
Subsections (a) and (b), but particularly (a), of the
proposed amendment were designed to address the joint committee's concern over
open incorporation by reference of foreign materials, in particular, without
some degree of Canadian supervision.
The amendment as presented by my colleague would allow the express use of
incorporation by reference, either static or ambulatory, of anything that comes
from federal or provincial legislation; in other words, from sources that are
readily accessible to Canadians and in both official languages. It would also
prevent a loss of control over the intent of legislation to a foreign
Honourable senators, Robert White of Consumer Health Products Canada, who
also was a witness, pointed out to the committee that there is certainly no
legal certainty in the ambiguity of what constitutes a document in the terms of
this legislation. He called for appropriate safeguards to govern the use of this
new act and drew attention to the ambiguity of the term "document" when he said:
. . . we would suggest amending proposed section 18.1 by adding a clause
that would say something to the effect that a document or part of a document
incorporated by reference does not include guidance documents that are
intended to provide clarity for stakeholders around the regulation or parts
of a regulation's intent. . . .
The guidance documents are put together by regulators, but they have
never had any oversight through Parliament.
Mr. White also expressed his concerns about what the term "accessibility"
meant in practical terms, and he pointed out that this vagueness would make
complying with the legislation challenging for the members of the health
products industry that he represents.
Under the Criminal Code, ignorance of the law cannot be used as a defence.
Therefore, the onus is on the citizen to be aware of laws and regulations and to
obey them. To facilitate this, the government has an equal responsibility to
ensure that the laws and regulations are accessible for its citizens. We were
reminded in committee that, although Bill S-12 makes life much easier for
regulators, it makes it much harder for the industry and private citizens who
may have difficulty accessing the current versions of the integrated documents
and knowing which version to use at any given time.
The new clause 18.3(1) states:
The regulation-making authority shall ensure that a document, index, rate
or number that is incorporated by reference is accessible.
According to the minister, people will now be protected by law if a court
deems that the regulations incorporated by reference are not accessible.
However, it is ridiculous that citizens would have to spend time and money on
court challenges or could be unduly prosecuted simply because the wording of the
bill is unclear, particularly the undefined expression "is accessible" in
proposed clause 18.3 and the ambiguous expression "otherwise accessible" in
proposed clause 18.6.
The bill does not define the term "accessible." As a result of the bill's
vague wording, which leaves much to be desired, and because the incorporated
documents change over time, citizens will be unintentionally breaking Canadian
The ambiguity of the legislation in Bill S-12 undercuts the minister's
assurances. In fact, when Senator Jaffer asked how parliamentarians would be
made aware of problems with accessibility to Canadian regulations due to the use
of open incorporation by reference, the minister could only reply, "If it is not
working or people do not have access, you will probably hear about it."
Honourable senators, this is not very reassuring. Surely it would be prudent
to clarify what is meant by "accessible" before passing legislation that is
simply setting up businesses and individual Canadians for confusion and undue
The amendment that was presented to the committee by my colleague Senator
Fraser included a call for guidelines governing the use of open or static
incorporation by reference by adding the following to clause 2 in the bill:
(c) on page 4, by adding after line 7 the following:
"18.8 The Governor-in-Council shall, by order, publish guidelines
establishing standards in relation to the following:
(a) which documents may be considered eligible for
incorporation by reference in a regulation; and
(b) which documents should be precluded from being
incorporated by reference;
(c) how the content of incorporated documents is to be
made available in both official languages;
(d) how incorporated documents are to be made accessible
to the public; and
(e) how relevant information will be communicated to
interested groups and the general public."
These proposed guidelines are good ones. The government members on the
committee should have adopted them. Similar to those enacted in New Zealand,
these suggestions are vital to protect Parliament's authority and to ensure
Canadians have access to the law.
Another witness, John Walter, CEO of the Standards Council of Canada,
appeared before the committee and spoke about the benefits of the use of open
and static incorporation by reference to his organization. However, he too
stressed the need for guidelines on how and when we use these tools.
. . . we would suggest that there needs to be a government guideline or
policy that outlines how these options should be considered and when a
static or an ambulatory process would be best . . . there certainly needs to
be a policy to advise regulators how to use this static or ambulatory
reference, and I would suggest that part of that policy or guideline should
then include how that is communicated to Canadians.
That is very sage advice to the committee.
What we have before us is an ill-advised proposed legislation, a flawed bill.
It is apparent, from all the witnesses and from all the research this side of
the Senate has done, that if open incorporation by reference is to be used as a
drafting technique by regulation makers in Canada, it is essential that
Parliament approve its use on a case-by-case basis.
It is equally important that Parliament set out specific guidelines outlining
how and when the regulation-making authority or the government should use open
or static incorporation by reference.
Honourable senators, I deeply regret that the government has decided to
introduce this bill at this time in Parliament, because the government is
ignoring the will of Parliament as expressed repeatedly by the Standing Joint
Committee for the Scrutiny of Regulations and its reports adopted by Parliament
in this house more than once before. They have ignored what this house and the
other house have told them not to ignore. In fact, I believe they have ignored
the Canadian Constitution and the right of Parliament to be supreme.
The adoption of the amendment as proposed by Senator Fraser would have gone a
long way towards ensuring that this legislation actually fulfilled its goal of
improving the management of regulations in an effective and responsible manner.
Instead, we are left with a vague and imprecise law that will weaken Parliament
and put Canadians at risk.
Hon. Terry M. Mercer: Would the honourable senator take a question?
Senator Harb: Yes, I will.
Senator Mercer: Honourable senators, traditionally, or by practice,
every bill that is drafted and that comes before the other place or this place
is sent to an internal committee, I understand, at the Department of Justice to
review whether or not the bill is constitutional. Does the honourable senator
know whether that was done in this case?
Senator Harb: That is an interesting question. The truth of the matter
is whether they should be doing it at all. Whenever Parliament gives authority
to the government to do something, the Parliament is supreme. Parliament can
take that authority away. As we know, in our system we have a situation where
there is a minister who practically is in a conflict of interest by voting on a
bill that impacts his Crown, his government. He is voting on a bill in order to
give him more authority.
As honourable senators can see, if we really wanted to talk about whether
Parliament is able, in a sense, to oversee what government does, the answer is
yes and no. In the present form of the democratic system that we have, there is
a minister who is both a minister but also a member of Parliament. Instead of
the Parliament itself deciding on what takes place in the end, once the
legislation is passed, now we will have Parliament deciding on the bigger
picture; and when it comes to the tricky details, it is left to the Crown, to
the minister, to his agent, to do whatever fits in terms of their overall
As far as I am concerned, the answer to the honourable senator's question is
that this is a very ill-advised move. Parliament on the other side and this
side, since the 1970s, has consistently taken the same position, namely, that
the government should never have unfettered access to making regulations without
the express authority of Parliament. We have to keep that in mind.
Here the situation is that it used to be considered by Parliament, in the
Senate and the House of Commons, as an illegal act on the part of the
government, over all those years, but finally the executive came to Parliament
and said, "Excuse me. I am the boss here. I now want you to allow me to make
legal what you previously considered to be illegal." They said, "Therefore, from
here on in, you cannot tell me that what I am doing here with regulations is
outside of my authority. It is now because you gave it to me."
Mind you, honourable senators, we can take it away at a later date. That is
the argument of the government, but how could we? As long as ministers are
voting on those laws, one cannot do it. One cannot really give Parliament its
express authority as it was set out in the Constitution, and that is the
Senator Mercer: It would seem to me, honourable senators, that we
continue to hear about open, transparent and accountable government, but this is
going entirely in the opposite direction. More and more power is being shifted
from the two chambers that are in this building to the Langevin Block across the
road, which houses the Prime Minister's Office and the Privy Council Office. Am
Senator Harb: It is a slippery trend, really. When one looks
historically at what happened, the government in the past used to use this
technique on and off. We used to tell them to stop, but if we look at the time
since this government came to power in 2006 up until now, it has been used more
than ever before. In fact, the statistic that we looked at is 170 times. That is
a lot of times. We have to ask ourselves: If we really want to delegate
something, why do we not set guidelines, as my colleague Senator Fraser has
said? Why do we not set under what terms these kinds of amendments can be done
and how I, as a Canadian who is governed by these rules, will be able to have
access to them? They will not be put in the Canada Gazette, so I will not
know what is in the regulations. What happens if those documents that are put in
the regulations change from time to time? Which version will I go and look at?
Worse, what happens if one makes reference to a document that deals with a trade
arrangement with another country? Those arrangements change from time to time.
Am I to jump on a plane and go to London or Brussels or China or elsewhere in
order to dig and find out which document I am dealing with? How will one ensure
that they are up to date? This is all very serious.
In fairness to the Justice Department, the chief legislative counsel, John
Mark Keyes, was very honest. He told the committee, "Listen, it is up to you.
You decide. You tell me what you want to do. One thing is for sure: The
committee and Parliament have told us that they wanted clarity. They do not want
us to do it." However, now the government has somehow decided that they want to
I remind honourable senators on the other side that there will be a time when
the government will change. The very same senators who are really pushing for
this bill might turn around and say, "Sorry, that was a bad move that we made."
When we talk about the halls of democracy and about parliamentary oversight, we
have to keep that in mind. We have to exercise the oversight that the
Constitution has allowed us to exercise. Do not give it away. It can be
delegated. Yes, we can delegate anything we want to within the rules of the law.
This is being delegated to the executive, but should it be? The answer is no, so
why are we doing it?
Senator Mercer: I have a great deal of respect for Senator Harb's term
here in the Senate and for his previous role in the other place. As he said,
this type of thing has come up in the past where the executive branch wants to
have more power and Parliament has said no. What was the role of various
caucuses in saying no to the leadership of governments in the past when they
wanted to take it? My understanding of the history is that members of Parliament
and senators who are members of various caucuses have said to their own
leadership, "Hold it, now; you will not get away with it." Is that your
recollection as well?
Senator Harb: Honourable senators, I do not talk about what goes on in
caucus because of caucus confidentiality, but obviously that would be the place
where I would rebel as a member of Parliament. I will stand up to my leaders and
say, "What happened here? Why are you trying to take away my authority? This is
the one time I can decide on what goes on." The frustrating thing about it is
that this Senate has the opportunity to turn it down. Here, we do not have that
conflict. Senator LeBreton is the only one, and maybe she will abstain and not
vote. Allow senators to vote the way they like, freely and democratically,
because this is the chamber of sober second thought, and see how we will turn
down a bill that goes against our position because we have already taken a
position. This Senate has already taken a position against the move to allow the
administration to proceed with amendments to regulations, from time to time,
without the express authority of Parliament.
This house and the other house have already adopted the report of the
committee. Basically, we are now reversing ourselves. I do not think that any of
my colleagues on the other side or on this side would want to reverse themselves
on a fundamental issue such as this one, that is, parliamentary authority and
the right of Parliament to have oversight over what goes on with the bureaucracy
and the executive.
Hon. Joan Fraser: Honourable senators, Senator Harb is right. As far
as I can see, this bill is the culmination of a long-standing battle between the
civil servants and Parliament, and it is a source of disappointment to me that
the government decided that the civil servants should win.
It is fairly obvious to anybody who has been around the Hill for any
particular length of time that, for many civil servants on many occasions,
Parliament is a nuisance and very inconvenient, if I may borrow a word from
Senator Day's comments on Bill C-45. They wish we would go away. Well, they are
sending us away with this bill, and let me explain why I find this particular
bill, as formulated, so distressing and worrying.
This bill allows regulators to incorporate in regulations — and we know that
regulations have the force of law for all intents and purposes — basically
anything they want — any document, any index, any rate, any standard. It would
be one thing if we were just talking about, as Senator Harb suggested,
documents, rates, indices or standards that come from a Canadian source.
However, in this case, they are throwing the whole world open. There is no
limitation on the documents, rates, indices, standards and what have you that
the regulators will be able to incorporate in regulations. What is worse, they
can use this wonderful phrase "ambulatory incorporation." What that means is
that they can incorporate a foreign document not only as it stands today but
also as it may be amended, from time to time, in the future.
We do incorporate quite a lot of foreign material right now, and much of it
comes from the United States and probably from Europe, trading partners with
whom our systems have a great deal in common. However, this government — not the
first but perhaps the most active — is hell-bent on signing trade agreements
with almost anything that moves on the face of the earth: China, Panama,
everything in the Pacific and a long list of countries whose names Senator Downe
knows better than I do.
Honourable senators, I do not know much about the Chinese regulatory system,
but I will bet you that 99.99 per cent of Canadians do not know much about it
either and do not know how to ascertain if some Chinese standard that we have
incorporated is later changed by the powers that be in Beijing.
How will we know about that? How will we know if the change is in our
interest? There is an assumption underlying this bill that all these future
changes will be good, modern and adapted to the realities of a changing world.
Our trading partners sometimes do not want to improve the level of their
regulation; they want to diminish it so they can be more competitive against us.
What will we do when that happens? Half the time we will not know until it is
This is a bad bill. It could have been a perfectly good one if, as the joint
committee had so often recommended, we confined our incorporation by reference
to Canadian, federal and provincial sources. That is not what we are doing. We
are saying it is a free-for-all; come and get it. Some people will, and we will
live to rue the day.
The Hon. the Speaker: Are honourable senators ready for the question?
Some Hon. Senators: Question.
The Hon. the Speaker: It was moved by Senator Frum, seconded by
Senator Fortin-Duplessis, that Bill S-12 be read a third time.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Hon. the Speaker: Carried, on division.
Some Hon. Senators: No!
The Hon. the Speaker: Order, please. I will put the question to the
It was moved by Senator Frum, seconded by Senator Fortin-Duplessis, that
Bill S-12 be read a third time. Those in favour of the motion will signify by
Some Hon. Senators: Yea.
The Hon. the Speaker: Those opposed to the motion will significant by
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the yeas have it.
And two honourable senators having risen:
The Hon. the Speaker: The whips will advise as to the time of bell.
It will be a 30-minute bell. Call in the senators. The vote will take place
at nine o'clock.
Motion agreed to and bill read third time and passed on the following
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
Hon. John D. Wallace, pursuant to notice of December 4, 2012, moved:
That, pursuant to section 3 of the Statutes Repeal Act, S.C. 2008,
c. 20, the Senate resolve that the following Act and the provisions of the
other Acts listed below, which have not come into force in the period since
their adoption, not be repealed:
1. Agricultural Marketing Programs Act, S.C. 1997, c. 20:
-sections 44 and 45;
2. An Act to amend the Canada Grain Act and the Agriculture and
Agri-Food Administrative Monetary Penalties Act and to repeal the Grain
Futures Act, S.C. 1998, c. 22:
-sections 1(1) and (3), 2 to 5, 6(1) and (2), 7, 9, 10, 13 to 16,
18 to 23, 24(2) and (3), and 26 to 28;
3. An Act to implement the Agreement on Internal Trade, S.C.
1996, c. 17:
-sections 17 and 18;
4. Budget Implementation Act, 1998, S.C. 1998, c. 21:
-sections 131 and 132;
5. Canada Grain Act, R.S.C 1985, c. G-10:
-paragraphs (d) and (e) of the definition
"elevator" in section 2, and subsections 55(2) and (3);
6. Canada Marine Act, S.C. 1998, c. 10:
-sections 140, 178, 185 and 201;
7. Comprehensive Nuclear Test-Ban Treaty Implementation Act,
S.C. 1998, c. 32;
8. Contraventions Act, S.C. 1992, c. 47:
-sections 8(1)(d), 9, 10, 12 to 16, 17(1) to (3), 18, 19, 21(1),
22, 23, 25, 26, 28 to 38, 40, 41, 44 to 47, 50 to 53, 56, 57, 60 to
62, 84 with respect to sections 1, 2.1, 2.2, 3, 4, 5, 7, 7.1, 9 to
12, 14 and 16 of the Schedule, and section 85;
9. Firearms Act, S.C. 1995, c. 39:
-paragraph 24(2)(d), sections 39, 42 to 46, 48 and 53;
10. Marine Liability Act, S.C. 2001, c. 6:
11. Modernization of Benefits and Obligations Act, S.C. 2000,
-sections 89, 90, 107(1) and (3), and 109;
12. Preclearance Act, S.C. 1999, c. 20:
13. Public Sector Pension Investment Board Act, S.C. 1999, c.
-sections 155, 157, 158, and 161(1) and (4);
14. Yukon Act, S.C. 2002, c. 7:
-sections 70 to 75, 77, 117(2), 167, 168, 210, 211, 221, 227, 233
He said: Honourable senators, the Statutes Repeal Act was passed with
unanimous support in both houses of Parliament and received Royal Assent on June
18, 2008. It came into force two years later on June 18, 2010. Section 2 of the
act requires that the Minister of Justice table an annual report before both
houses of Parliament on any of their first five sitting days in each calendar
year. Each annual report must list the acts and provisions not yet in force that
were assented to nine years or more before December 31 of the previous calendar
This is the second year of the implementation of this act. The first annual
report was tabled on February 3, 2011, and listed a total of 45 pieces of
legislation involving 19 departments and agencies. The second annual report was
tabled on February 1 and 2, 2012, and listed a total of 20 pieces of legislation
involving 10 departments and agencies.
Section 3 of the Statutes Repeal Act provides that the act and provisions
listed in the second annual report will be repealed on December 31, 2012,
unless, before that date, they are brought into force or one of the houses of
Parliament adopts a resolution exempting them from repeal.
I am speaking today in support of the motion that this chamber adopt a
resolution before December 31 of this year, exempting the one act and provisions
in 13 other acts that are listed in the second annual report from being repealed
on December 31, 2012.
The purpose of the Statutes Repeal Act is to encourage the government to give
active consideration to the coming into force of acts and provisions that have
not been brought into force within 10 years of being assented to.
In keeping with this purpose and the intention to ensure, as much as
possible, that the will of Parliament is respected, deferrals are being
requested only in the following circumstances: first, when there is an
operational need; second, when there is a need to await the occurrence of some
event that is out of the government's control; third, when there could be
federal-provincial implications; or four, when there could be international
Eight ministers have requested the deferral of the repeal of the act and the
provisions in 13 other acts identified in the second annual report. They are the
Ministers of Aboriginal Affairs and Northern Development, Agriculture and
Agri-Food, Finance, Foreign Affairs, Justice, Public Safety and Transport, as
well as the President of the Treasury Board. I will now set out the reasons for
the requested deferrals by each of these ministers.
The Minister of Aboriginal Affairs and Northern Development is requesting
deferrals concerning provisions in the Yukon Act, S.C. 2002, c. 7. Sections 70
to 75 of the Yukon Act provide for the Yukon government to appoint its own
Auditor General. The provisions were the subject of much discussion between
Canada and Yukon, and it is anticipated that these provisions may be brought
into force in the foreseeable future.
The rest of the provisions of the Yukon Act are expected to be brought into
force when the Yukon legislature enacts surface rights legislation to replace
the current federal Yukon Surface Rights Board Act. The provisions are intended
to deal with amendments to federal legislation that will be required when the
federal Yukon Surface Rights Board Act is repealed once section 283 of the Yukon
Act is brought into force.
The Minister of Agriculture and Agri-Food is requesting deferrals concerning
provisions in three acts. The provisions in the following two acts should be
considered together: An Act to amend the Canada Grain Act and the Agriculture
and Agri-Food Administrative Monetary Penalties Act and to repeal the Grain
Futures Act, S.C. 1998, c. 22 and the Canada Grain Act, R.S., c. G-10. The
government has indicated its intention to modernize the Canada Grain Act.
Deferral of the repeal of provisions in these acts is being sought so that these
reforms can be made comprehensively through government bills.
The third act for which the Minister of Agriculture and Agri-Food is
requesting a deferral is the Agricultural Marketing Programs Act, S.C. 1997, c.
20. The not-in-force provisions of that act will, when brought into force,
repeal certain obsolete statutes that that act replaced. When all debts under
these obsolete statutes have been paid off, it will be possible to bring the
provisions of the Agricultural Marketing Programs Act into force.
The Minister of Finance is requesting deferrals concerning provisions in two
acts. First, there is the Budget Implementation Act 1998, S.C. 1998, c. 21.
Sections 131 and 132 of the act modify section 1 of Article XV of Schedule I to
the Bretton Woods and Related Agreements Act and add a Schedule "M" to Schedule
1 to that act. The deferral is necessary because Canada ratified the
International Monetary Fund decision, and when the United States finally agreed,
triggering the threshold number of votes, the decision came into force at the
international level in 2009. Canada will likely want to take steps to bring this
into force to reflect our international commitment.
The second deferral concerns an Act to Implement the Agreement on Internal
Trade, S.C. 1996, c. 17. The amendments that are not yet in force provide for a
regulation-making authority in the context of legislation related to the
Agreement on Internal Trade. Deferral from automatic repeal of these provisions
is required as these and other provisions of the Agreement on Internal Trade
will be revisited in the near future.
The Minister of Foreign Affairs is also requesting deferrals concerning
provisions in two acts. The first request concerns the Comprehensive Nuclear
Test-Ban Treaty Implementation Act, S.C. 1998, c. 32. This act is the only
entire act for which deferral is being sought. This act will be brought into
force as soon as the Comprehensive Nuclear Test-Ban Treaty itself comes into
force. However, there is no real expectation that the treaty will enter into
force in the next few years. It is vital that the act not be repealed so that
the treaty can be implemented in Canada when it enters into force and, in the
meantime, Canada can continue to demonstrate a commitment to its implementation.
The second deferral concerns the Preclearance Act, S.C. 1999, c. 20. Section
37 of the Preclearance Act must be saved from repeal. This provision may be
useful and necessary in the future to meet Canada's border needs. It is
important to note that the preclearance officers referred to in section 37 are
persons authorized by the United States to preclear in Canada and that the
Preclearance Act is the result of a bilateral treaty with the United States.
Under Article X of the Agreement between the Government of Canada and the
Government of the United States of America on Air Transport Preclearance, a
preclearance officer shall enjoy immunity from the civil and administrative
jurisdiction of the host party with respect to acts performed or omitted to be
performed in the course of his or her official duties.
The Minister of Justice is requesting the deferral of provisions in two acts.
The first of these acts is the Contraventions Act, S.C. 1992, c. 47, in respect
of which the Minister of Justice has entered into agreements with several
provinces to implement the federal contraventions regime by incorporating the
existing procedural provincial schemes in conformity. The department is still in
negotiations with three provinces, which have not yet signed an agreement. Even
though the Department of Justice remains determined to implement the regime
throughout the country, it may need the listed provisions to implement an
autonomous federal ticketing scheme in those provinces with which it would not
have successfully signed an agreement.
The second act is the Modernization of Benefits and Obligations Act, S.C.
2000, c. 12, which is a comprehensive act amending some 68 federal statutes to
ensure equal treatment of married and common-law relationships in federal law
regarding both benefits and obligations. Several provisions in the act were
brought into force early in 2012, and work is continuing to bring into force the
remaining five provisions. These five provisions are needed to achieve
consistency throughout federal legislation.
The Minister of Public Safety is requesting deferrals concerning provisions
in one act, the Firearms Act, S.C. 1995, c. 39. Given the government's ongoing
review of the current firearms legislative framework, the Minister of Public
Safety has requested that the repeal of those provisions be deferred to allow
the government sufficient time to examine the potential impacts of that repeal.
The Minister of Transport is requesting deferrals concerning provisions in
two acts. The first act is the Marine Liability Act, S.C. 2001, c. 6. Section 45
will give effect to the Hamburg Rules, which is an international convention on
the carriage of goods by sea adopted by the UN in 1978, if it comes into force.
The Marine Liability Act contains a provision to bring into force the Hamburg
Rules when a sufficient number of Canada's trading partners have ratified them.
Therefore, section 45 of the Marine Liability Act should not be repealed at this
Next is the Canada Marine Act, S.C. 1998, c. 10. There are many reasons for
not repealing the four listed provisions of that act.
Section 140 of the Canada Marine Act enables Canada to enter into agreements
with any person to ensure ferry service between North Sydney, Nova Scotia, and
Port-aux-Basques, Newfoundland and Labrador, in accordance with section 32 of
the Terms of Union of Newfoundland with Canada, a constitutional obligation of
Canada vis-à-vis Newfoundland.
The minister would retain the existing legislative option provided by section
178 to create Jacques Cartier and Champlain Bridges Incorporated, JCCBI, a Crown
parent corporation, with an order of the Governor-in-Council. Section 185 of the
Canada Marine Act amends Schedule III to the Municipal Grants Act, replaced with
the Payments in Lieu of Taxes Act in 2000, by adding JCCBI to Schedule III,
thereby exempting JCCBI from the payment of real property taxes.
Section 201 of the Canada Marine Act would repeal the Harbour Commissions
Act, which is the governing legislation for the Canadian harbour commissions.
Since the Oshawa Harbour Commission continues to be governed by the Harbour
Commissions Act and the Oshawa Harbor Commission By-laws made under that act,
until such time as it becomes a port authority, the Harbour Commissions Act
should not be repealed under section 201 of the Canada Marine Act. Therefore,
section 201 of that act should not be repealed.
The President of Treasury Board is requesting deferrals concerning provisions
in one act: the Public Sector Pension Investment Board Act, S. C. 1999, c. 34.
The provisions concern pension and related benefits for the Canadian Forces.
They amend definitions and repeal provisions of the Canadian Forces
Superannuation Act. Regulations are required to set out the many substantive
pension benefit provisions. Any pension amendments for the Canadian Forces must
take into account the pension arrangements for the public service under the
Public Service Superannuation Act. Extensive consultation between the Canadian
Forces and Treasury Board is required. While that consultation is under way, a
deferral from automatic repeal will allow the departments time to complete the
work and make arrangements to have the provisions come into force if that is the
The Statutes Repeal Act provides that any deferrals would be temporary. As a
result, any act and provisions for which deferral of repeal is obtained by
December 31 of this year will appear again in next year's annual report. They
will be repealed on December 31, 2013, unless they are brought into force or
exempted again for another year by that date.
It is important that the resolution be adopted before December 31, 2012.
Otherwise, the act and provisions listed in the motion will be repealed
automatically on December 31, 2012, along with all other provisions mentioned in
the second annual report that have not come into force or otherwise been
The repeal of the act and the provisions listed in the motion could lead to
inconsistency in federal legislation. The repeal of certain provisions could
even result in federal-provincial stresses. The repeal of other provisions could
create challenges under the Canadian Charter of Rights and Freedoms, and the
repeal of yet others could blemish Canada's international reputation.
If a resolution is not adopted by December 31, 2012, federal departments
would need to address the resulting legislative gaps by introducing new bills.
Those bills would have to proceed through the entire legislative process from
policy formulation to Royal Assent, which would be costly and time-consuming.
In conclusion, I urge honourable senators to support the motion and vote in
favour of a resolution that the act and provisions listed in the motion not be
automatically repealed on December 31 of this year.
Hon. Joan Fraser: Would Senator Wallace accept a couple of questions?
Senator Wallace: Yes.
Senator Fraser: I betray my ignorance. The honourable senator has
referred to deferrals. Would adoption of this motion give permanent deferral or
a one-year deferral only?
Senator Wallace: Honourable senators, it would be a one-year deferral.
When the list reappears next year, those dealt with through the year would be
removed. Any for which we would be granting deferrals now would reappear and
have to be dealt with in one year's time if they are still on the list.
Senator Fraser: Honourable senators, I have been frantically scanning
Item No. 9, the Firearms Act, thanks to the Internet, to figure out what is
happening. I am truly confused. I do not quite understand why some of these
things are not in force. I am unsure, but it looks to me as if perhaps one or
two of the things not now in force will be allowed to lapse. Could the
honourable senator explain in a little more detail what is happening with the
For example, section 53 refers to the importation of prohibited firearms for
the purpose of re-export. For the life of me, I cannot understand why that would
not be in force and what the implications would be of continuing to have it on
the books but not in force. That is one example of how I am royally confused
about the Firearms Act requirements.
Senator Wallace: Honourable senators, as I mentioned, four different
criteria could apply to why the deferral is being requested. The Firearms Act
arises because of an operational need, and a number of issues are being dealt
with in respect of the Firearms Act. I can say only that in integrating all of
those and determining how they will work together, operational issues are still
being worked out, so they cannot proceed with them. I cannot give honourable
senators an indication of when that might change, but it is being worked on.
Senator Fraser: Honourable senators, if no one else wishes to speak, I
will take the adjournment.
Hon. Joseph A. Day: Honourable senators, I have one question for
Senator Wallace in relation to his comments on the Canada Marine Act.
Preliminary to that, my recollection is that Senator Banks was a proponent of
the Statutes Repeal Act. I presume that quite a list of statutes will be
repealed and that the ones in the motion were selected by various government
departments to not be repealed automatically. Is that correct?
Senator Wallace: Yes, but it is not that they were selected.
Honourable senators may recall from when we went through the same exercise last
year that it is simply a listing of any acts that have received Royal Assent but
have not been brought into force. It is a case of looking at them and listing
the ones that fall into that category. Any that fall between the ninth year
following Royal Assent and the tenth year automatically appear on this list.
Last year we had 45 on the list, and it was reduced to 20. Action was taken on a
number of them. Once they come into force, they just drop off the list. There is
no discretionary factor determining what is on and what is off. It is simply
whether they fall between the ninth and tenth year that they have received Royal
Assent but have not been brought into force.
Senator Day: There would be quite a group of those that the government
does not want to put on this list — and this is a sort of double negative — but
not repealed, otherwise they would be repealed.
The one I am concerned about is No. 6, Canada Marine Act, and the honourable
senator is saying "please do not repeal section 140." I understood his
explanation was that dealt with giving the government authority to enter into
arrangements with any companies or individuals in relation to transportation
links between the Maritimes and Newfoundland. Why would that section not have
been put in force and effect giving the government authority, from time to time,
to enter into any arrangements that they deem to be appropriate?
Senator Wallace: Honourable senators, I understand the reason for it.
Again, it comes back to the fact that we have these four criteria that can apply
to the request for the repeal. There is an operational need and there are
details to be worked out that would relate to that ferry service and they are
not at a point where they feel it can be brought into force at this point. It is
continuing, but it is just not at that point right now. It is because of
Hon. James S. Cowan (Leader of the Opposition): Honourable senators,
as I understand the effect of Senator Banks' bill, which we adopted, it was that
providing 10 years went by and the government did not ask for this exemption,
then the bill would cease to be on the books. Is that correct?
Senator Wallace: Yes, that is correct.
Senator Cowan: My next question relates to where I thought Senator Day
was going. Are there any bills that have fallen off the books as a result of
having passed the 10-year mark, or are approaching the 10-year mark, that the
government does not want to keep on the books to which any of the four criteria
apply? Are there any other bills?
Senator Day: Yes, there are quite a few of those.
Senator Cowan: Have any bills fallen off the books as a result of not
being included in this list and not having been brought into force in the past
Senator Wallace: No, I do not believe so, honourable senators.
Senator Cowan: Thank you.
(On motion of Senator Fraser, debate adjourned.)
On the Order:
Resuming debate on the inquiry of the Honourable Senator Carignan calling
the attention of the Senate to the budget entitled, Economic Action Plan
2012: Jobs, Growth, and Long-Term Prosperity, tabled in the House of
Commons on March 29, 2012, by the Minister of Finance, the Honourable James
M. Flaherty, P.C., M.P., and in the Senate on April 2, 2012.
Hon. Claude Carignan (Deputy Leader of the Government): Honourable
senators, because we are currently studying Bill C-45, this inquiry should no
longer be on the Order Paper. I therefore request that this inquiry be withdrawn
from the Order Paper.
The Hon. the Speaker: Honourable senators, I assume that no other
senator will have to speak. I must advise the house that if Senator Carignan
chooses to speak, it has the effect of closing the debate.
The Honourable Senator Carignan was asking that the matter be withdrawn.
Honourable senators, is it agreed?
Hon. Senators: Agreed.
Hon. Donald H. Oliver rose pursuant to notice of November 8, 2012:
That he will call the attention of the Senate to the state of diversity
in the Senate of Canada and its administration and, in particular, to how we
can address the barriers facing the advancement of visible minorities in the
Senate workforce and increase their representation by focusing on hiring,
retention and promotion.
He said: Honourable senators, I had intended to speak tonight and, indeed,
have been ready to speak for more than three weeks. In view of the hour, I would
like to say only one thing.
This is December 10 and it commemorates the day in 1948 when the United
Nations General Assembly adopted the Universal Declaration of Human Rights.
Article 7 is one of the things that I would like to talk about and it states:
All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against
any discrimination in violation of this Declaration and against any
incitement to such discrimination.
With those opening remarks, honourable senators, I would like to adjourn
further debate for the rest of my time at a future sitting.
(On motion of Senator Oliver, debate adjourned.)
(The Senate adjourned until Tuesday, December 11, 2012, at 2 p.m.)