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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 31 - Evidence - Evening sitting


OTTAWA, Wednesday, September 23, 1998

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-37, to amend the Judges Act and to make consequential amendments to other Acts, met this day at 7:12 p.m. to give consideration to the bill.

Senator Pierre Claude Nolin (Acting Chairman) in the Chair.

[English]

The Acting Chairman: Honourable senators, we will now continue our study of Bill C-37. I am pleased to recognize as a witness our colleague from the House of Commons, Mr. Robinson. Please proceed, Mr. Robinson.

Mr. Svend J. Robinson, M.P., (Burnaby--Douglas): Honourable senators, I will try to be brief. I know you are familiar with the issue I will be raising before your committee, so I need not give you a lengthy background of the purpose of my proposed amendment. Suffice it to say that, at the time I initially proposed that the government accept this amendment, around May of this year, the Minister of Justice responded that it was inappropriate because the government had not made a decision on the question of an appeal of the Ontario Court of Appeal decision in Rosenberg. For that reason, substantively, the government was not prepared to move forward.

As members of the committee are, I trust, aware, the Rosenberg decision was allowed to stand and, to the credit of the government, I would say, they decided not to appeal that decision.

The effect of that is that the Ontario Court of Appeal read the words "of the same sex" into the relevant provision, the definition of "spouse" in the Income Tax Act. That particular definition extended the benefit of registration of pension plans to heterosexual couples involved in a common-law relationship, and the effect of the decision was to extend that to gay or lesbian partners.

I then mentioned to the minister that, if the government was not prepared to introduce an amendment, I would myself table an amendment in the House to add the words "or the same sex" to the proposed definition. The Table in the house advised me that would be out of order as it would require a Royal Recommendation because it would involve the expenditure of funds. Therefore, I did not move ahead on that.

Subsequently, I have written to the Clerk of the House and have communicated extensively with the officers of the House about alternative wording that I believe, in fact, would not require the Royal Recommendation.

I will be pleased to leave with the clerk of the committee a copy of my letter to the clerk in which I cite the precedent for this. In 1992, the Public Service Superannuation Act was being debated in the House when I moved an amendment. Instead of adding the words "or the same sex," I simply suggested deleting the words "of the opposite sex." That amendment was studied by the chair of the day and was ruled to be in order.

The Acting Chairman: We understand that. We are discussing the possibility of introducing an amendment although we do not have one before us. One of our members will be required to submit such an amendment when we reach our clause-by-clause study. I am open to your suggestions as to the wording of that amendment.

Mr. Robinson: I was not in any way suggesting that, were it to be in order, it would be done automatically, Mr. Chairman.

Senator Grafstein: To which clause are you referring?

Senator Cools: Clause 1.

Mr. Robinson: It is the definition. The current definition states that surviving spouse includes a person of the opposite sex who has cohabited with a judge in a conjugal relationship. Initially, I proposed that we add the words, "or the same sex," so that the definition would read, "of the opposite sex or the same sex," because that was the formulation in Rosenberg by the Ontario Court of Appeal. However, because that was ruled out of order, I looked for a precedent that might be in order, and if the words "of the opposite sex" were simply deleted, then the effect of that, I am advised, would be to allow for the inclusion of same-sex partners without the difficulty of a Royal Recommendation being required for the amendment.

That is what I am appealing to the committee to do. I ask you to look at the substance of this issue. The committee is very familiar with this because I have circulated my letter. I hope I do not have to make a lengthy argument as to the wisdom of the substance of this amendment. There are gay and lesbian people in all walks of life. There certainly are gay and lesbian judges involved in committed, loving, long-term relationships, and those folks are not asking for any special rights or privileges. We are talking about equal rights here.

I would appeal to this committee, if this can be done procedurally, to recognize the wisdom of the decision of the Ontario Court of Appeal in Rosenberg, as well as the wisdom of the decision in Vriend of the Supreme Court of Canada and in Egan and Nesbitt.

Lastly, Mr. Chairman, I would draw to the attention of the committee the response of Madam Justice Abella to the suggestion by the federal government that this should take some time. I was not here for the evidence of the minister, but I suspect that this is an argument that you may have heard. She probably said that the government is looking at a whole range of options including other relationships, dependency, and so on. The Ontario Court of Appeal deals with that and says the government relies on its inherent right to address equality issues incrementally, but this suggestion is rejected by Justice Iacobucci in Vriend who stated that groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. He went on to say that, if the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will then be reduced to little more than empty words.

If it is the desire of the government to move forward on a fairly major and comprehensive re-examination of relationships, certainly they can do that. In the meantime, I would suggest to the committee that there is an injustice here with respect to the relationships of gay and lesbian partners that I hope this committee will, in its wisdom, see fit to address, should it be procedurally possible to do so.

Senator Grafstein: The minister seemed to be sympathetic to your proposal save and except the Royal Recommendation issue and the question of "incrementalism." In effect, we were told by the minister that we would have to hear opposing evidence. It would be beyond the power of the Senate to introduce an amendment at this juncture because it impinges on the Royal Recommendation provision. That was the argument put forward by the minister. It might be useful for you to read her testimony and give us some alternative response to that because that is a pretty strong opinion which we received from the chief law officer of the Crown.

It is not that some of us are not unsympathetic to your position, quite frankly, but that barrier has been placed in our way. If, somehow, we can be convinced otherwise, I am sure some members at least might be interested in pursuing this in a form of a change or at least taking a stronger position.

Turning to the definition for a moment, section 2 of the Judges Act states that a surviving spouse in relation to a judge, includes a person "of the opposite sex," but it does not necessarily exclude a person of the same sex.

Senator Lewis: You mean "includes"?

Senator Grafstein: No, no. It includes a person of the opposite sex who has cohabited with the judge in a conjugal relationship for one year. However, my question is this: Under the common law, does "surviving spouse" include a surviving spouse of the same sex?

The Acting Chairman: There is no definition of spouse. Even if the commission referred to a definition of spouse, there is no definition of spouse in the act.

Senator Grafstein: Having in mind that there is now clear precedent in subordinate legislation that a same-sex spouse is included for benefit purposes, do we have enough at common law to define "surviving spouse" as a person of the same sex who takes on the indicia of a spousal relationship?

If that is the case, Mr. Chairman, it may very well be that we do not have to make any changes, that it is a question of implementation and recommendation.

Perhaps you are more familiar with these definitional codes than I am I and you could assist the committee.

Mr. Robinson: That is an excellent question. Frankly, that is not a construction that I thought would be possible, for two reasons. I am putting on my legislative drafting hat which is ancient and tattered. However, I believe that, generally, when it states "includes" that is basically direction as to what is encompassed and is not intended to leave out other possible categories. If that were the case, it could literally include anyone who is a spouse under common law.

My other concern is that the only hook that could be used would be that somehow there is a common-law precedent, and there is not. Certainly, the common law is not well enough established around the definition of spouse. This is a very new area of the law. Indeed, it is only recently that legislatures have redefined "spouse" in this way, so there is no body of common law. More important, I believe that, because there is an explicit reference as it now stands to a person of the opposite sex, a judge looking at that would say, "No, the legislators have explicitly excluded that relationship."

The Acting Chairman: Mr. Robinson, if you have documentation or letters that you are willing to share with the committee, we will have them circulated in both official languages.

Mr. Robinson: I will leave with the clerk of the committee my letter to the clerk of the House of Commons on the procedural question and the admissibility of the amendment deleting those words. Perhaps the clerk will be in a position to get some procedural advice and follow up.

Senator Cools: Mr. Chairman, perhaps we could get some clarification on this business because there is nothing in the fact that this bill had a Royal Recommendation that would preclude either supporting it or not supporting it on the substance of the issue, or that would preclude an amendment from us. The argument that the Senate cannot amend a bill with a Royal Recommendation is a pretty tired one. Perhaps we could hear some evidence from someone who really knows the subject matter, perhaps even our own Senator Stewart, because that argument is frequently used. I submit that some members of the House of Commons have more confidence in that argument than do senators.

Mr. Robinson: Certainly, if senators are prepared to challenge that convention, it is not a challenge I would reject.

Senator Beaudoin: I understand the argument. However, I disagree because of the French text. In French it is so clear cut that there is absolutely no possibility of achieving what you want without an amendment.

[Translation]

It states that this includes a person of the opposite sex who has cohabited with the judge for at least one month immediately before the judge's death. If you leave out "of the opposite sex," it reads "includes a person who has cohabited with the judge...

[English]

-- you achieve your goal. However, if you do not do that, I cannot see how you will achieve your goal. In French it is more clear cut that you have to amend.

Senator Grafstein: Except that "conjoint survivant" is broader than "surviving spouse," is it not?

The Acting Chairman: No.

Senator Beaudoin: In French, if you amend it, you achieve your goal. However, you cannot do that indirectly.

Senator Grafstein: That is not my question. Are the French words "conjoint survivant" broader in meaning than "surviving spouse"?

The Acting Chairman: No. They have the same meaning.

Senator Grafstein: Is it exactly the same?

Senator Beaudoin: That is my question too.

The Acting Chairman: We should restrict ourselves to questions of the witness.

Will you share with us any documents that you have, Mr. Robinson?

Mr. Robinson: Of course.

The Acting Chairman: We will seek advice and we will inform you of our decision.

Senator Beaudoin: "S'entend" is absolute. In English, "include" is not absolute.

Senator Grafstein: That is right. There is a difference between the drafting of the English and the French versions. I am, by no means, a French expert, but on the face of it, it is different.

Senator Beaudoin: "S'entend" is stronger than "include."

The Acting Chairman: Is that a question to the witness?

Senator Grafstein: We are talking of drafting.

Senator Beaudoin: I understand what the witness wants. I cannot see how, because of the French text, which is equal, he will achieve his goal without an amendment. That is all I am saying.

Mr. Robinson: I agree. Certainly, if the committee wants to be clear in its objective, to avoid any doubt --

[Translation]

These words must be eliminated in both official languages.

[English]

Senator Joyal: My first point relates to the word, "conjoint." When we use the word "conjoint," we refer to someone who lives with someone else who may or may not be bound in the legal context of a marriage. "Conjoint" includes those who are "époux" or "épouse" and those who live in a common-law situation. When someone introduces me to his or her "conjoint," the person could be married, could be unmarried, could be living common law, or could be someone who has gone through the formal structure of a wedding.

When I am introduced to someone I am told, "voici mon époux" or "voici mon épouse," know that I am being introduced to people who have gone through a legal marriage ceremony.

The phrase, "conjoint survivant," is very broad. The definition here has four elements. First, the person has to be of the opposite sex. Second, consideration must be given to the date of death of the judge. Third, the relationship must have existed for at least a year. Fourth, it must be on the same kind of common-law situation.

Mr. Robinson suggests that we should delete the reference to the sex of the person; in other words, we should delete one of the four elements of the definition. However, could it be argued in a court that the definition "conjoint survivant" or "surviving spouse" is not limiting but illustrative?

This is exactly Senator Grafstein's point. Is it a definition that is inclusive of every situation? Is it no more than what is defined there? Is it an example of the elements that the court will take into consideration in concluding that the person in front of the court is the surviving spouse? That is the question.

As I read this, you must have the four elements there, and it is inclusive. You cannot go beyond that. However, that could be argued.

Senator Grafstein: In drafting terms, if you wanted to do that, instead of saying "includes," you would say "means to include." "Includes" leaves it open.

Senator Joyal: There is a difference between the French and the English. Perhaps there is another way to amend it, which is to leave the four elements but to have "entre autres sentences."

Senator Beaudoin: It is already there.

The Acting Chairman: Colleagues, we do not want to embark on that.

Senator Joyal: That is another way of achieving it. You understand the point.

My second point relates to what Mr. Robinson said about the Royal Recommendation. There is a principle in law which we were all taught when we were in law school: You cannot do indirectly what you cannot do directly. Therefore, if we believe that by deleting the words "of the opposite sex," we, in fact, achieve the objective of the amendment, the end result is the same. Theoretically, we would add people who, at the beginning, were not contemplated to benefit by this legislation. We achieve the result we want with that. Personally, I would certainly favour that, and many colleagues around the table made that point to the Minister of Justice. However, are we not infringing upon that fundamental principle and, in fact, are we not doing indirectly what we cannot do directly? The end result is the same.

If our interpretation of the definition is right, that it is limited only to a person of the opposite sex, if we delete those words, we add other people. We add people of the same sex. Even though only one person would be covered by that legislation as it now stands, nevertheless it would mean that there would be more money available to that person. In other words, we would increase government spending.

I would like to have the information you received from the clerk of the house on the appropriation, as well as the explanation he gave you that, by deleting one word and adding nothing, you would be achieving indirectly what you cannot achieve directly. I would have to wrestle with the principle in law that you should not be able to do by a trick what you cannot do openly. That is my point, which I am sure you understand.

Mr. Robinson: Absolutely, and may I say that it is a pleasure to sit at this table with this honourable senator after almost 20 years when I previously shared a table with him when he very ably co-chaired the committee which drafted the Charter of Rights in 1980-1981.

Senator Joyal: Especially section 15.

Mr. Robinson: Yes.

I take your point. If this were strictly a legal proceeding, I think the case would be made beyond a doubt. However, Senator Cools alluded to the fact that we are not dealing with a legal proceeding here but parliamentary proceedings and precedents. As Senator Joyal is well aware, Parliament tends to operate more on the basis of precedent than strict, black-letter law.

I have drawn to the attention of the clerk that, indeed, there is a clear precedent for the deletion of those words "of the opposite sex" from legislation that would, in fact, involve, it could be argued, a far more significant expenditure of funds. It was an amendment that I proposed to the Public Service Superannuation Act for pensions for all public servants, and that was studied carefully by the house and by the clerk. Following that, the amendments were ruled in order. There is the precedent. That is all I am saying.

I do not quarrel at all with the senator's interpretation of law. However, I would hope that, at the very least, this committee would seek procedural guidance with respect to the fact that that precedent was, indeed, established, and whether that would be persuasive in these circumstances.

The Acting Chairman: As I understand that, an amendment that involves the expenditure of more money is not permissible here. That is our problem.

Senator Beaudoin: If you interpret "Royal Recommendation" too strictly, it means that the Senate could never amend a bill, and I cannot accept that.

Senator Cools: The bill already has its Royal Recommendation. We have nothing to worry about.

Senator Beaudoin: We have the power to amend. However, because of the Royal Recommendation, we cannot. It is quite debatable. The bill specifically states:

His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out...

If we amend this, the Royal Recommendation stands.

Senator Cools: If we amend the bill, the Royal Recommendation will be nullified.

Senator Beaudoin: If you accept the other theory, the Senate could never amend a bill without returning it to the House of Commons.

Senator Cools: That is right.

Mr. Robinson: If I may just add one point: Historically, the Senate has been particularly concerned about rights issues, ensuring that the Bill of Rights and then the Charter of Rights applies, and some of us look to the Senate for that guidance. As long as the Senate continues to exist, we look for that kind of guidance, being particularly vigilant on equality issues -- making sure the Charter applies, and making sure that the Bill of Rights applies.

This would mean that you as senators could never amend equality legislation if, for example, groups with disabilities were left out. If any group were left out of legislation, you would have to say, "Well no, we cannot do that because, if we include them in this legislation, that could cost some extra money." Surely it is an extraordinary constraint on the powers of the Senate and this body to say that. Sometimes equality costs money.

Senator Beaudoin: We amend the Criminal Code sometimes, and that may be more costly because of our amendments. We do that nearly every month.

Senator Cools: We do it all the time.

Mr. Robinson: I wanted to flag that, particularly in dealing with issues of equality where you are talking about a group that has been left out. It may be gays and lesbians today, but tomorrow it may be another group. You are accepting that your hands are tied and that you cannot rectify that by means of an amendment. That, I would submit, is rather dangerous.

Senator Grafstein: I have a small "p" political question. We are seized of this matter. What happened in the other place apart from your proposed amendment? Where were the rest of the people concerned with minority rights on this issue in the other place? I have not read the transcript of the other place. I should, and I will, but I have not.

Mr. Robinson: I was not able to put forward the amendment, but the issue itself was certainly raised in the course of debate when the bill came back from committee.

Senator Grafstein: More precisely, my question is: What happened in committee? It is one thing to bring it back to the house, but the more appropriate place to raise the issue would be in committee.

Mr. Robinson: It was raised by one member of the committee, by Mr. Mancini, and the minister indicated that, because the government had not yet decided whether to appeal the Rosenberg decision, they were not prepared to amend the legislation. That would, in a sense, be prejudging their position. The committee meetings were before the decision on Rosenberg.

Senator Joyal: On the same point, the report stated that the committee sat on May 27, and the judgment was released on April 23. It was during the 30-day appeal period in which the government must make a decision. In other words, the bill left the committee before the expiration of the appeal period. That is probably why no one wished to act upon it.

Mr. Robinson: I see that the next delegation from REAL Women is here to support the amendment, and I would be glad to yield the floor to them.

The Acting Speaker: Will we receive your documentation?

Mr. Robinson: Yes.

The Acting Speaker: I now invite the panel from REAL Women of Canada to come to the table.

Ms C. Gwendolyn Landolt, National Vice-President, REAL Women of Canada: Honourable senators, REAL Women of Canada has taken a tremendous interest in the Judges Act because the judiciary is fundamental to our democratic system. It protects us as men, women and children. We have read this bill with some concern because we do believe much of what the previous speakers -- the three political scientists -- have said. They mentioned much of what we want to talk about.

Was the committee dealing with this compensation for judges? This committee appears to be an attack on the sovereignty of Parliament. If the decision of the commission is not adhered to, it will be brought before the courts. Then, of course, the judges themselves will be deciding on their own compensation. That was never the intention of section 100 of the Constitution Act which provides, as you know, that Parliament will fix the salaries and benefits of the judiciary.

We are gravely concerned. Mr. Justice La Forest said in a dissenting judgment that there does seem to be a mischaracterization. At paragraph 316 he said that it appears there has been no contextual authority for the decision that the commission would speak, and that Parliament must obey, and if not, then it would have to go to court. This appears to be drawn from another system that we do not understand.

It seems that Parliament must decide the salaries. Since 1981, for example, we have had section 26 of the Judges Act, which set up a commission. Sometimes the commission's reports were not accepted. In 1983, the Lang commission recommendations were not accepted, and it may well be that the Scott commission recommendations of 1995 will or will not be accepted. However, Parliament should fix salaries and benefits.

Our concern lies with the fact that this particular commission is troublesome to us. Prior to that, before this amendment, the commission was simply appointed by the Minister of Justice. We now have a Governor in Council appointing these individuals, but these individuals are representatives from the judiciary -- one from the Minister of Justice, and then a third person, who the two others will appoint as chairman. This seems not to be a separation between the executive and the judiciary at all. It appears to be a mutual society, which is not satisfactory.

Earlier this afternoon, Senator Grafstein suggested that perhaps a committee of both Houses of Parliament should handle this, rather than a commission set up under this act. Because of this, we suggest that at the very least speakers of both Houses should be involved. There should be some parliamentary involvement. However, after listening to what the senator said this afternoon, I am inclined to agree that his suggestion is even more appropriate.

Our concern is that this was an in-house decision and that the recommendations were really made by the judiciary, with the backing of the Minister of Justice. We know that all judges in Canada are appointed through the recommendation of the Minister of Justice. With respect to Mr. Scott's commission of 1995, we know that he was on the Justice Minister's advisory committee to appoint judges, and now we find him determining their salary. It seems to be a very cozy, intimate relationship, one that is not at arm's length at all. The judges themselves would appear to be, all in one, handling this with the executive arm of the Ministry of Justice, but Parliament is not involved.

We want to raise this issue. Again, this issue was spoken to very well by the three political scientists who appeared before the committee earlier. However, I do wish to reiterate that this is an absolutely trying moment for us. This proposed legislation is not satisfactory. It is not what was intended in the Constitution Act, 1967. It may be convenient for the judges, but it certainly is not right, proper and constitutionally correct, as Mr. Justice La Forest said so aptly in his decision.

It is puzzling to me because Mr. Justice Lamer in the decision re Provincial Court Judges did say that there must be a separation between the executive, the legislative and the judiciary. It would appear his decision overrides the ultimate statement that he made at page 80 of his own judgment. He seems to buy his practical recommendation of this compensation committee. He was, in fact, ambivalent. He was not clear and concise.

We have prepared a detailed brief which the clerk of the committee has kindly agreed to distribute to all members of the committee. She has also agreed to distribute our brief in both official languages at a later date.

I will not go into a lot of detail, but I did want to make an important point. We think that if the commission is in effect, as it was with the Lang commission in 1983, that it should be a non-binding commission and that Parliament must ultimately make the decision.

Although this next point was not actually dealt with in the Judges Act, if we are concerned about the independence of the judiciary, which Bill C-37 is attempting to deal with, why was the very serious matter of the appointment of judges not dealt with? We brought in our Charter of Rights in 1982, and the judges became so much more powerful. However, we still retained our old-fashioned method of appointing judges. We are way out of step. We are the only democracy in the western world that has this old-fashioned system of appointing a judge by a recommendation from the Prime Minister. This system is outdated. Times have changed, and we must move along to a new appointment system.

I do not wish to belabour the Scott commission, but because of Mr. Scott's intimacy with the Department of Justice and his history of being on the judicial advisory committee to the Minister of Justice, how impartial are his recommendations with regard to the salaries of judges? Under this new provision, the recommendation under the Judges Act, the Chief Justice of Canada, for example, will make $225,000 annually in salary, which is far more, I think, than any of you make, but also far more than the Prime Minister makes. A puisne judge would make $175,000 in the superior court, which is very generous. However, consider that the average lawyer in Canada, according to the 1996 statistics from StatsCan, makes $81,700. A lawyer would more than double his or her income by an appointment, which would be very nice.

It is significant that Martin Friedland, who was requested by the Canadian Judicial Council to produce a report and study of judges' salaries, stated in his report, which was filed in May 1995, that Mr. Scott said the purpose of these generous salaries was to encourage people to accept appointments to the bench.

However, Mr. Friedland, in a report commissioned by the judiciary itself, made a very significant point. It is not the salaries; it is the pensions that the lawyers want through their appointment. Eighty per cent of the judges' pension is paid by the taxpayer and only 7 per cent of his salary, according to Mr. Friedland. It is not the salary that is important. If you had to put money in RRSPs, you could imagine the amount of money that would be involved.

As a national women's organization, we were extremely pained by the provision in this act dealing with spousal benefits. As women, we are concerned that a legally married wife could be treated with discrimination in situations when a judge cohabits with another woman -- and, there are more male judges than female judges -- for a period of one year. In Ontario, one must have at least a three-year common-law relationship before it is recognized in law. With this bill, once a judge cohabits with a new partner for one year, the woman who had been married to him for 30 or 40 years and is the mother of his children loses out.

There are several provisions in the bill that we are concerned about with regard to judges' pensions. I have gone into the details in our brief. For example, when a judge separates from his wife, enters into a new relationship and dies shortly thereafter, the annuity that he agreed to with the legal spouse may well be lost because it stops with his death and a new annuity takes place.

Another problem concerns the one-sixth lump sum payment in salary -- and, I heard part of the Minister of Justice's comments about this -- that goes to the person with whom the judge is co-habiting at the time of death. Again, this is painful to us, as women. We are thinking of women who have many years of marriage behind them. This amount will be considerable. For example, a puisne judge makes $175,000 per year, and one-sixth of that amount represents more than simply burial expenses. The judge's children by the legal marriage and the judge's former spouse will not be included in this award. At the very least, it should be prorated according to the time they have spent together.

We realize that times change, and traditional marriages today are often relegated to the back door in this modern society. However, there are 8 million people in Canada who are living in traditional marriages. That is to say, the vast majority of people enter into traditional marriage, not because they are forced to do so, but because it suits them and it works best for them. Under this legislation, women who committed themselves to the obligation of marriage, which is the very framework of our society, will suffer discrimination and be pushed aside by someone who, after a brief period of one year, will receive numerous recognitions and financial benefits. That is painful for us, as women, and we find it discriminatory.

We know that people enter into common-law relationships, but we wonder about this one-year period. The minister said that the Canadian Pension Plan also stipulates a one-year period before benefits can be received. However, surveys involving the CPP have recognized that this is unfair. In fact, one of our members has experienced difficulty with that stipulation. She lived with a man for 25 years who then left her and remarried. He now lives with a woman in a common-law relationship and within one year this woman will receive the CPP. That seems unfair. We see the same happening again here with the Judges Act.

When we talk about equality and fairness, we must look at what is fair to everyone. Spouses in a traditional marriage -- and, it could be a man married to a female judge, too -- seem to be facing discrimination and a lack of respect and dignity.

I should like to go on to the question of a common-law relationship as it relates to what the previous speaker, Mr. Robinson, said about same-sex marriages. In his enthusiasm for his cause, he has probably misrepresented the legal situation. The legal situation with regard to same-sex relationships is, first, that the judgment handed down in April by Madam Justice Abella stated that she would deal only with the particular provision of the Income Tax Act, not the broader issue of same-sex marriages.

Second, she did not refer to the leading case on same-sex marriages, the Nesbit and Egan case that was handed down in May 1996, which said specifically that same sex arrangements are not the same as traditional marriages because traditional marriages produce the next generation, which is the foundation of society; whereas same-sex relationships, because of obvious biological differences, cannot make this significant contribution. Because of the importance of the traditional marriage to the future of our society, the state has chosen to give special benefits and recognition to those people who chose the traditional marriage. Based on that decision of the Supreme Court of Canada, homosexual and lesbian relationships are not an equality issue. They are two different arrangements. Society has given benefits to the traditional family simply because it is important for the future of society.

It is also significant that Mr. Robinson mentioned that the Rosenberg case was not appealed to the Supreme Court of Canada by the federal government. That was not done because the issue in the Rosenberg case dealing with same sex benefits was already argued on March 18 in the M v. H case, which will be the definitive decision on same sex relations when it comes to whether they are equal to or different from the traditional marriage. Why would they appeal a decision by a provincial court when they already argued it in the Supreme Court of Canada one month previously?

Any decision in regard to same sex relationships by this committee would be extremely premature simply because the Supreme Court decision in Nesbit and Egan already addressed that issue; and, second, the definitive decision is yet to be handed down in the M v. H case. They are still grappling with it.

The traditional marriage of men and women has been the norm for the major religions and the major cultures of the world. To say that the traditional marriage is exactly the same as a lesbian and a homosexual association is to take our whole civilization as we know it and turn it upside down under the heading of "equality" when it is not equality because they are two different relationships.

This is a significant decision that cannot be trivialized by simply mending it through a committee decision when it is already before the Supreme Court. It will involve a dramatic change in our society that is counter to religious beliefs and cultures worldwide.

In February of this year the European court, which is supposed to be a progressive court, handed down a decision wherein they stated that same-sex marriages or relationships are not the same as traditional marriages. In our national organization, some of us are single, some are married, some are divorced and some are separated. We are the same as everyone else. However, we believe that we must preserve the traditional understanding of marriage. If we do not do so, then the traditional marriage is simply an alternative lifestyle not to be recognized for its particular contribution to our society. Furthermore, the sacrifices made by couples, past and future generations, who enter into traditional marriages are denigrated and lost because it no longer matters. People can live in any relationship and have it sanctified by law, but the traditional marriage should be placed in another category.

With regard to the common-law relationship as set in the Judges' Act, the Supreme Court of Canada in Nesbitt and Egan said that the common-law relationship is, in fact, comparable to the traditional marriage for the basic and significant reason that the common-law relationship also produces children. They are men and women and, therefore, the Supreme Court's decision was that the common-law relationship may well be comparable to the traditional marriage.

However, we would suggest that a one-year common-law relationship is insignificant as compared to the duration of a traditional marriage. We find it fundamentally discriminatory against women and men who enter into marriage, committed to the obligations, duty and sacrifices, to be shoved aside by this legislation because someone has lived with another person for a one-year period.

That summarizes much of what was said by the three political scientists. We support much of what they say and we are building on what they have said.

We are open to questions.

Senator Beaudoin: You referred to the judicial compensation and benefits commission and to section 100 of the Constitution. There is no doubt that Parliament has the direct power to legislate in respect of the salaries, the pensions, and the treatment of judges. It is also true that this proposed legislation must be passed by the Parliament of Canada.

Would you say that Parliament does not have the power to establish a commission to help Parliament in this difficult field of remuneration so that it may be more fair and more in line with the realities of life? It is perfectly legal to do that, unless you tell me that Parliament is losing its authority in doing this, but I do not believe that is the case. As a matter of fact, we may amend that next year.

Ms Landolt: I would agree with you, senator. We do not object to the establishment of a commission per se as long as Parliament reserves the right to say yes or no to any recommendations, and they have done so since 1981. They have often disregarded recommendations. Our concern relates to the make-up of this commission. First, it is not at arm's length; and, second, it must not be binding. To say that they are simply helping Parliament would be very well put and, in that respect, we would agree with you. There is nothing wrong with the establishment of the commission itself, just as there is nothing wrong with the Canadian Judicial Council. As long as this is at arm's length and it is not binding, we would not object to it at all. We would just carry on as we did in 1981 under section 26 of the Judges' Act.

Senator Beaudoin: Is it, in your opinion, definitely and absolutely binding?

Ms Landolt: Mr. Justice Lamer's decision troubled us greatly. I can read the quote. I believe it is significant.

Senator Beaudoin: That is the one you read a moment ago. If it is tantamount to an amendment to section 100 of the Constitution, I would agree with you.

Ms Landolt: What he said was tantamount to that. His actual words are very important and they are found at page 4 of our brief. Mr. Justice Lamer said:

...to avoid the possibility of, or the appearance of, political interference through economic manipulation, a body, such as a commission, must be interposed between the judiciary and other branches of government.

With regard to the decision of the commission he then went on to say:

The recommendations of the commission would not be binding on the executive or the legislature. Nevertheless, though those recommendations are non-binding, they should not be set aside lightly, and, if the executive or the legislature chooses to depart from them, it has to justify its decision -- if it need be, in a court of law.

That is what concerns us. That seems pretty clear to us that what he is saying is that the final decision lies with the judiciary.

Senator Cools: That is what he is saying.

Senator Beaudoin: I agree with you, it is pretty strong.

The Acting Chairman: We are not here to judge Justice Lamer.

Senator Beaudoin: The fact is that he used the words "not binding" and he refers to the burden of proof and he says that, if the executive goes against the suggestion or the recommendation then it must justify that even before a court of justice.

Senator Cools: That is pretty clear.

Senator Beaudoin: I would have said that very differently.

Ms Landolt: A judge in a court of law could say that is not a reasonable decision and knock out Parliament's decision. The judges would have the ultimate say. On one hand he is saying it is not binding but he ties it up very nicely in the next sentence by saying, "You better do what I say or we can throw it out."

Senator Beaudoin: We can still plead before the same judge that he has said that it is not binding.

Senator Cools: Her point is that Parliament should not be in that position.

The Acting Chairman: Let us ask questions.

Senator Grafstein: I put exactly that question to Professor Ziegel and the others. I was referring to the first reading of the bill. I did not see the bill as passed by the house, but there is a provision there that says, in effect, there will be a commission and a report. The Attorney General is required to report at a certain time but, between that time and when he must submit his final report, a report will go to the house and the house must debate that and, in effect, it goes back.

However, I agree with you that, notwithstanding that intermediate step, and I did not have that in front of me when I was dealing with Professor Ziegel, it still puts the ultimate decision in the hands of the court for the right to review whether or not the process was due process. They decide due process principles. Having said that, it is an interesting point.

I would like to turn to your much more difficult question of equality under the Charter as it applies to different relationships. This is a very strange provision because a surviving spouse is defined, again, as a person of the opposite sex -- lay that question aside whether it is same sex or opposite sex -- who has cohabited with a judge in a conjugal relationship for at least one year.

If I recall the common law correctly, a common-law relationship must be established for a reasonable period of time, and that notion of a reasonable period of time was imported into our property rights, provincially, from California. In effect, in Ontario, a common-law relationship exists if the parties have cohabited for three years. Is it three years?

Ms Landolt: It is three years in Ontario.

Senator Joyal: I believe it is the same in Quebec.

Senator Grafstein: It takes three years to establish proprietary rights, but this seems to be even shorter than that. This presents a problem because in the question of the fairness of specifying a non-secular relationship as opposed to a secular relationship, there must be some parity. The one year appears to be difficult to justify.

Where you draw the line is difficult as well. The line we have drawn in Ontario on community-property rights is at three years. That is an appropriate issue for us to deliberate on and I thank you for bringing that to our attention.

I wish to deal with the question of same-sex relationships, and there is no question at all that this is an evolving value. In other words, if you examined that value 20 years ago, that is, pre-Charter, there would have been a different consensus in the country about what is equal in society, never mind equal under the law.

Today, I think one must recognize that there is a growing consensus that secular versus non-secular relationships have some sort of equal status and same-sex versus opposite-sex relationships are moving in that direction, whether some of us or some groups in society like it or not.

The Acting Chairman: We are referring to producing and non-producing relationships.

Senator Grafstein: Yes. I understand the witness' position, but even if I were to accept your position, the factual basis is changing under our feet as we move along. I want to take you through my thinking and then you can respond.

Earlier we heard the minister talk about dependency. I assume from what you say that, on the question of a dependent receiving remuneration from the state after the active partner deceases, you would not have any objection as to whether it is male or female?

Ms Landolt: We have two concerns. First, as I mentioned, we wish to recognize the traditional marriage because the traditional marriage is the future on which the whole of Canada is based in common-law. We want to give it recognition as a social policy to encourage the birth of children because we need that. We have one of the lowest birth rates. We are not even reproducing ourselves and immigration is not filling the gap.

That is important and that is a social policy which legislators must determine. Heretofore, relationships have always been a legislative matter. What has happened in Canada does not include all people. It is not the general population that is going for same-sex marriages. An Angus Reid poll in 1982, a Gallop poll in 1992, and an Angus Reid poll in 1994 said that the majority of Canadians feel that the traditional marriage must have priority. They think that same-sex marriage is not good for children; it is not good for family structure; it is not good for society. If people want to have such a relationship, it is their business; nobody will stop them. However, the Canadian population does not go for it.

Who is going for it? Some of the appointed members of the court. Madam Justice Rosalie Abella did not base her judgment in Rosenberg on any precedent or any law. In fact, she ignored the Supreme Court of Canada's binding precedent and said that she did not agree with it, so she threw it out.

In every case in Canada on same-sex benefits, there has never been produced evidence that they have suffered discrimination. It has never been proven that they have suffered discrimination in their relationships. In fact, the Rosenberg case dealt with RRSPs and whether a same-sex couple could get the same RRSP benefits. The court was shown that there was no difference in financial return if you listed your partner as a spouse or as a beneficiary. So that is not the problem.

Senator Grafstein: I follow your argument, but you are not quite addressing my proposition.

Ms Landolt: Let me finish my second point. First, we want to raise the traditional family as a priority. A same-sex relationship would just be an alternative lifestyle.

Second, there is only so much money to go around. You must take money away from one pot to fill in the other pot. We need a practical solution. Again, this is a matter of social policy. Do we want to give everyone the same benefit or do we want to recognize the contribution of the traditional family?

There is one thing I do find with same-sex marriages. It is discriminatory to give benefits to them but not to a mother and her son living together, or two brothers or two sisters. That is the ultimate discrimination if two homosexuals get benefits and not brothers or sisters or mothers and sons. Have I missed your point?

Senator Grafstein: No, we are getting closer, but for the fact that a relationship does not produce an offspring, and you say that that is the higher architectonic to which we should be addressing ourselves. I can make a convincing argument to say that, under the Charter, what is important is not respect for a different relationship but the question of giving sustenance and providing equality for a dependent relationship. For instance, a judge in the United States Supreme Court -- and there was some controversy about this -- was appointed in the last decade. He was a bachelor who lived with his mother. As I thought through the Attorney General's comments, my response was to wonder why that mother, who has supported her son, should not be considered his dependent should she survive him?

Ms Landolt: You are perfectly logical, Senator Grafstein.

Senator Grafstein: You have raised the point that our limited resources are stretched with major objectives. I saw a personal example just last week. A very wealthy friend of mine has a younger wife who is a judge, an excellent judge. She was not appointed for the purposes of receiving, in effect, her pension in the event of her premature demise; on the contrary. We have moved from an appropriate base that nobody could say is discriminatory -- that is dependency -- to a situation of recognizing relationships without any requirement.

It is interesting. There is not even a requirement for a conjugal relationship. We say cohabitation does not necessarily mean a conjugal relationship. This is quite a strange bill.

Ms Landolt: It is very strange.

Senator Grafstein: Your points give us pause but I am not sure that I can agree with you that, with the changing value structure, we can treat a spousal relationship, same sex or opposite sex, in the way you are suggesting. I think things are moving too quickly.

Ms Landolt: Perhaps not with the public, but certainly with some judges and their ideology.

Senator Grafstein: No, I am not talking about the judges. I am talking about public opinion.

Ms Landolt: I do not know what you are gauging. I can only go by two national pollsters. I would not know better than anyone else, but that is what the polls are saying.

Senator Grafstein: The military in the United States is the most democratic organization in that country. There was a lot of controversy about this but same-sex relationships are recognized.

Senator Cools: Could I have a clarification, Senator Grafstein? Many of us would have sympathy for the case you have just described of the judge and his mother. Did you say that the standard should be widened to dependency?

Senator Grafstein: My problem is that we are trapped by the construction of this bill. It does not make dependency as a condition precedent to a benefit. The state gives the benefit for the relationship, not for the dependency.

Ms Landolt: Senator Grafstein, I would not want anyone to get the idea that we are opposed to the dependency concept. Obviously, in the example you give, it seems sensible. Our problem is one of practicality. Financially, do we have a big enough pot?

Second, where does this put the traditional marriage which historically has always been recognized because, without it, there is no future. That is the only reason why you give special benefits. By making same-sex benefits the same as those for heterosexual couples, you are discriminating against all these people who are in dependency relationships and who could use this extra funding.

It is a very strange world we are living in. We are pickpocketing and giving some people benefits and not others. That is a concern.

Senator Fraser: As the chairman has indicated, I am a new senator and, as such, I may be lacking some background.

However, I would like to clarify my understanding of your position on the question of survivor benefits. I think I understand your position on same-sex couples, and I am not talking about them. I am talking about heterosexual couples. I am not quite sure whether what I hear coming from you is an objection to common-law unions or an objection to striking long-time wives off the rolls after they have been divorced.

Let me explain. As I understand this bill, in apportioning survivor's benefits as between a common-law spouse and the preceding but not divorced spouse, the apportionment would be done in proportion to the length of each relationship. That is to say, a wife who had been with a husband for 25 years and a woman who had been his common-law spouse for one year would share accordingly. The wife would get 25/26ths of the benefits, which does not strike me as jettisoning anything.

Ms Landolt: It is not that straightforward. If it were, there would be no problem. I would understand that.

The Acting Chairman: Senator Fraser had not finished her question.

Senator Fraser: No, I had not.

It seems to me that where the long-standing wife gets jettisoned -- and this is why I am asking you to bear in on precisely which point it is that disturbs you more -- is where she gets cut off after divorce and, if she marries someone and is married for 24 hours and he dies on his honeymoon, she gets it all.

Ms Landolt: As to the question of just getting a pension, we have no problems with that.

Senator Fraser: What is reasonable?

Ms Landolt: If he -- if the judge -- and I am using "he" while it could also be "she" --

Senator Fraser: You are worried about women and are therefore worried about male judges' survivors.

Ms Landolt: If it is just a matter of prorating the pension between the two, there is no problem. However, there are more subtle complications in the bill. The complications I see are with, for example, clause 52 of the bill which states that the surviving spouse will receive an annuity. That surviving spouse will be the one with whom he is living at the time of death. There is no provision under clause 52 for a divorced spouse. She is left out in the cold.

If a judge leaves his wife, for example, and lives with someone else, what happens to that one-sixth? She does not receive one-sixth of his income at the time of his death. What happens when a judge divorces his wife or separates and it is set out in their separation agreement that she would receive part of his pension, for example, $150,000? What would happen if he dies and this bill has become law? The previous agreement would be wiped out because this measure would supersede the original agreement. There are different categories of wives and relationships.

It is all so complicated. I do not think anyone thought about that.

Senator Fraser: If I understood what we were told earlier today, along with the clarification I received from the staff member, in fact, this bill would not supersede separation agreements.

Ms Landolt: With respect, I will say there is a major quibble among lawyers because the legislation would supersede the marriage agreement. It just happens that a legislative act would take over.

Senator Grafstein: Please refer to clause 9 of the bill which would replace section 44(4) of the act.

The Acting Chairman: I think your question is addressed in that clause.

Ms Landolt: A separation agreement is different from a divorce settlement. To me, separation agreement simply means an agreement between two parties. It is an agreement between the husband and wife. However, it is not the same as a divorce settlement which the court decrees. No one calls a court order a separation agreement. The court decrees that there should be maintenance, for example, in a specific amount per month.

Senator Grafstein: We should consider that question, Mr. Chairman. It states "a separation agreement entered into in accordance with applicable provincial law." As opposed to talking about the divorce agreement, separation is a generic term that applies to a separation between parties, whether it is a divorce or separation. We should look at that as a question of drafting.

Clearly, I read this to mean a separation agreement, be it divorce or separation, that is entered into freely by two parties; and, in that process, is he or she, depending on who it is, waives entitlement.

Ms Landolt: "Separation agreement" means one thing to me, while "divorce settlement" means another. It states, "under provincial law." It is ambiguous, I have to admit. "Under provincial law" means that there is legislation for separation agreements as well as legislation with regard to divorce settlements.

Senator Grafstein: We will ask our law experts to advise us.

Senator Cools: The issue that I find a little odd -- as you say, it is a bizarre bill at any rate -- is that it is not unusual for individuals to enter into separation agreements and then later on there is a change in circumstances and the person goes back to court to have a change in the separation agreement. What this does, and the witness is perfectly right, is that it supersedes the ability of any person to return to court and say that, because there has been a change in circumstances, they believe they made a mistake. It blocks that, and that is unusual.

Ms Landolt: I would like to comment on a point raised by the senator. It is a very complex problem. We are reading it as women and asking this committee to re-examine and revisit these provisions, bearing in mind that the long-standing wife and children do matter.

The Acting Chairman: Ms Landolt, do you think a lawyer who is advising the wife of a judge would advise her to waive that right? I doubt it.

Senator Cools: It happens.

Ms Sophie Joannou, Treasurer, REAL Women of Canada: What happens when the husband leaves his wife after 25 years, after having fooled around for 10 years or 15 years, and he then decides to enter into a common-law relationship and after one year he dies? The pension that was accumulated in the 10 or 15 years will then be prorated to the common-law spouse. Is that fair to the first wife and their children?

The Acting Chairman: The first marriage was interrupted because of a divorce or separation.

Ms Joannou: Yes, and then he does not enter into any permanent relationship for 10 or 15 years and then enters into a common-law relationship.

The Acting Chairman: We have the answer to that.

Ms Joannou: What is it?

The Acting Chairman: When the marriage still exists, it is prorated between the married spouse and the common-law spouse.

Ms Joannou: It is the date of separation, even though you are not divorced, that counts for prorating.

The Acting Chairman: If there is some question in the minds of my colleagues, we will ask those questions of the officials of the department.

Senator Sparrow: On the yearly salary, the minister stated that the purpose for that was to pay funeral expenses, et cetera. You made the comment when you were talking about several hundred thousand dollars, one-sixth is a lot of money. Indeed, it is.

It seems to me it is an unusual provision. Normally, in wills made by anyone, the first provision is to pay for any funeral expenses or debts. When the minister made that statement, it was just off the top of her head. It seems to me highly unusual that that provision would be in a bill. Under the Senate provisions and so on, it says that the payout goes to your estate, and it seems to me that, if there were any benefits, they would normally go to an estate, and from that the funeral expenses and any other expenses would be paid. It does not say here, as the minister said, that the money will be used for that purpose. The money may go to the person who cohabitated with the judge for one year, and she may take the money and disappear. That can easily happen. That may be a concern of your group.

There must be something unusual -- such as an individual case -- that would prompt that type of provision in the bill.

Ms Landolt: When we saw that, senator, our reaction was: Why does this common-law wife of one year get this money? It is like a bouquet of flowers presented to her for one year's cohabitation. Our concern was for the other people involved, the children? What about the legal wife or former wife? It does not seem to make sense to us. It seems to be giving a benefit to someone who is just lucky to live with that man for one year. She gets all this money handed to her for what? You are right that funeral expenses are always covered out of the estate. She is just given a gratuitous gift, thanks to this act. Again, it is deprivation and discrimination against a long-standing wife and children.

Senator Sparrow: No judge will die in poverty.

Ms Landolt: If he has too many wives, he may.

Senator Sparrow: I would think that should be examined.

The Acting Chairman: Thank you, Ms Landolt.

Honourable senators, before we retire for the night, I have a suggestion to make. We have been in touch with Mr. Scott, the chair of the commission, and he is prepared to appear before our committee as a witness next week. We could perhaps hear him next Wednesday, if that is agreeable. Do your wish that we invite him to appear? We are open to suggestions to hear other witnesses as well.

Senator Cools: Could we speak for a moment about the issue of compensation for witnesses' transportation?

The Acting Chairman: We can discuss that amongst ourselves. We have rules on that.

Senator Joyal: I have a question which I wish to share with my colleagues. According to the testimony we received this afternoon, it seems that the suggestion put forward in the bill on the establishment of a commission removes part of the responsibility of the Parliament of Canada as it relates to remuneration for judges. Would it not be advisable to get a comparative analysis of how other Commonwealth systems have dealt with the issue of paying judges in a way that protects the principle of independence, the freedom of decisions, and so on, and which is consistent with the sovereignty of Parliament? In the establishment of a commission there is certainly a very important principle at stake. I do not think that discussion took place in the other place.

Before voting on that, I would be interested in knowing how other common-law systems have dealt with that issue, even though they might not have, in their constitutions, a section similar to our section 100 which very directly vests the responsibility with the Parliament of Canada. Perhaps in other countries they do not have that kind of clear-cut responsibility. In some instances, it might be in the hands of the executive. I do not know.

It is a question I wished to entertain with our witnesses, especially Professor Ziegler. When Senator Lewis raised this question, it was touched on by Professor Ziegler in the last answer. He mentioned New Zealand, Australia and the U.K, but only in a general way.

As far as I can see, and according to our witnesses and the reading we have been doing, it seems that the report of the triennial commission has not been acted upon for all kinds of reasons. That prompted dissatisfaction among the judiciary. They felt that the Parliament of Canada was not acting according to the expectation of the learned justices.

I believe that, if we are to change the system in a fundamental way, we should know how other systems have been tackling this issue. If witnesses could attend to explain comparative systems, I would certainly not feel that it would be a waste of time. Intellectually, I would find it satisfactory. It is so fundamental that I think it is worth taking an hour or so of our time to discuss that.

The Acting Chairman: When we have a steering committee meeting on Tuesday next when the chair is back we will raise that issue, as well as any suggestions that Senator Cools or other senators might wish to make. As I said at the beginning, we have more time now to study the bill.

Senator Grafstein: Perhaps we could do a little research on section 101 -- where did it come from; what was the history of that; what was the extent of this. In my mind, the statement was clearly put in to assert Parliament's supremacy over judge-made law. My memory might be foggy, but my recall is that there was a tremendous debate in the country, particularly among the provinces, about not having a charter. I remember particularly Mr. Sterling Lyon in Manitoba, who made the strong case that this would subvert Parliament. I thought Joe Clark made that argument quite effectively.

Having said all of that, one of the ways I believe that the Government of Canada dealt with that issue was to say that judges would not be given a mandate to become, in effect, politicians and usurp the powers of Parliament. As I recall, that was the origin of that section. It would be very useful if we could have some evidence on that question. I have not read the P.E.I. decision completely, but that does not appear to have been dealt with fully.

The Supreme Court of Canada has -- I do not like to say this out of school -- a way of muting the issues that tend to subvert their conclusions. I hope that is not on the record anywhere.

The Acting Chairman: We take that as a suggestion.

Senator Grafstein: It would be useful to have that information because it would put us back to phase 1, if I may call it that, and we would know what was the effect of that section and what we will be doing by including this particular clause. There might be another way of coming at the existing system by issuing a mandate that they must report within a given period of time. That might be a simple answer to all of this.

Senator Beaudoin: It was a different world in 1867.

Senator Cools: Perhaps we could also give some consideration to the particular issues that Senator Stewart raised in his question yesterday on the floor of the chamber, in particular looking at the peculiar parliamentary issues. Section 100 has been with us since 1867 and it has an antecedent existence in the Act of Union. What we should be looking at is the origin of section 53(1) of the Judges Act, how it has developed from its inception, and how it is being used right now, which is the point that I think Senator Stewart supported last night.

That is a parliamentary question. That is not a legal question.

Senator Beaudoin: Section 100 has been around since before Confederation.

Senator Grafstein: It was used as a defence during that debate to say this will not happen.

Senator Cools: It was.

The Acting Chairman: We can see in our group we have pro-charter senators and maybe lukewarm supporters.

I thank the witnesses. We will adjourn.

The committee adjourned.