Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
2nd Session, 35th Parliament,
Volume 135, Issue 18
Tuesday, May 14, 1996
The Honourable Gildas L. Molgat, Speaker
- THE SENATE
- SENATORS' STATEMENTS
- ROUTINE PROCEEDINGS
- QUESTION
PERIOD
- Justice
- Sale of Airbus Aircraft to Air Canada-Alleged Conspiracy to Defraud Federal Government-Role of Royal Canadian Mounted Police in Investigation-Government Position
- Sale of Airbus Aircraft to Air Canada-Alleged Conspiracy to Defraud Federal Government-Endorsement of Investigation-Government Position
- Sale of Airbus Aircraft to Air Canada-Alleged Conspiracy to Defraud Federal Government-Endorsement of Investigation-Level at Which Decision Taken-Government Position
- Goods
and Services Tax
- Harmonization with Provincial Sales Taxes-Powers of Proposed Canada Revenue Commission-Request for Particulars
- Harmonization with Provincial Sales Taxes-Situation of Contract Employees at Summerside Centre-Government Position
- Harmonization with Provincial Sales Taxes-Studies Conducted on Adverse Effects-Request for Answer
- Canada Census
- Public Works and Government Services
- The Economy
- The Senate
- Answers to Order Paper Questions Tabled
- Justice
- ORDERS
OF THE DAY
- Law Commission of Canada Bill
- Pearson International Airport Agreements Bill
- Business of the Senate
- Criminal Code
- Canadian Association of Former Parliamentarians Bill
- Child Abuse and Neglect
- Pearson International Airport Agreements Bill
- Cape Breton Development Corporation
- Pearson International Airport Agreements Bill
- Employment Insurance Bill
- Agreement on Internal Trade Implementation Bill
THE SENAT)
Tuesday, May 14, 1996
The Senate met at 2:00 p.m., the Speaker in the Chair.Prayers.
Pages Exchange Program with House of Commons
The Hon. the Speaker: Honourable senators, I should like to introduce two House of Commons pages who have been selected to participate in the exchange program with the Senate for this week.[Translation]
Adèle Séguin, from Sudbury, Ontario, is enroled in the Faculty of Arts at the University of Ottawa. She will major in communications. I welcome her. By the way, perhaps she could help me with my communication skills.
[English]
Honourable senators, Hillary Stedwill, from Regina, Saskatchewan, is pursuing his studies also at the University of Ottawa. He is enroled in the Faculty of Arts and is majoring in English. Welcome to the Senate.
SENATORS' STATEMENTS
The Senate
Inauguration of In-House Publication
Hon. Colin Kenny: Honourable senators, this is a happy and significant day in the Senate's existence. It is a benchmark in our progress. On their desks today, honourable senators will find inaugural issues of Debates of the Senate, Journals of the Senate and Order Paper and Notice Paper, all of which were printed in-house. These documents used to be produced for us under contract by the Canada Communication Group, formerly the Queen's Printer. From now on, they will be produced completely by employees of the Senate.This transition began months ago under my predecessor, the late Senator Earl Hastings. He asked Senator Cohen to review the findings of a staff committee on official Senate documents. Among the options was having Hansard and other documents printed by a private company. That option was rejected because the staff committee concluded that it would be less expensive to do our own printing, provided we purchased the appropriate technology and gave our staff the proper training.
Therefore, after due deliberation, the Internal Economy Committee introduced a Supplementary Estimate, and the Senate purchased a new printing system at a cost of $875,000. With this equipment, the Senate will save more than $600,000 per year in printing costs. Those savings, which had been predicted by the staff committee, were confirmed by an independent auditor who specializes in technical audits. The capital investment to produce Hansard will be completely recovered in less than 18 months, and the quality and appearance will remain the same. In the future, the only printing done outside of the Senate will be of a specialized nature, such as embossed invitations for the opening of Parliament.
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I know honourable senators will join with Senator Di Nino, the members of the Standing Committee on Internal Economy, Budgets and Administration and me in recognizing the work done by so many of our staff in bringing this project to a successful conclusion. I wish to single out a few individuals for special recognition, some of whom are sitting in the gallery above us. I wish to congratulate Jean-Guy Béland, Chief of Printing, and equipment operators Gil Gorley, Jean-Marc Gagnon and Robert Ethier. Our appreciation also goes to Richard Greene, Clerk Assistant; Jean Pierre Lavoie, Director of Services; Hélène Bouchard, Chief of Computer Services; and Michael Shreve, Coordinator of Senate Publications.
People's Republic of China
Renewal by United States of China's Most Favoured Nation Status
Hon. Jack Austin: Honourable senators, I wish to speak for a few moments about our strategic relationship with China. Almost unnoticed, time is running out on one of the most significant world strategic and trade issues. I refer to the relationship between the United States and China, particularly to the pending decision to be made by President Clinton on whether to extend the most favoured nation treatment to China for a further year.U.S. trade law requires the President to make an annual decision on whether to renew China's MFN status, and the deadline this year is June 4. Congress has retained for itself, in the law, the right to overrule the President's decision. This is an election year in the U.S., and U.S.-China relations are not tranquil.
In 1995, China held a favourable balance of trade with the U.S. of over $35 billion U.S., second only to Japan. That fact is exacerbated by disputes over intellectual property practices, alleged transfer of sensitive nuclear devices, human rights issues, the threats to Taiwan, and the future democratic status of Hong Kong. Also in play is the U.S. position on China's World Trade Organization accession requirements and China's role in the Spratley Islands dispute. Add to this cocktail the rise of protectionist rhetoric in the U.S., along with U.S. moves toward a more bilateral view of their trade interests.
There can be no doubt that withdrawal of MFN treatment would seriously hurt the Chinese economy and China's emergence as a member of the international trading community. Huge damage would be done to Hong Kong and to Taiwan as well. Indeed, it could be the end of Hong Kong as an international financial and trading centre, as well as a beachhead for democracy in Asia.
The U.S. would also do enormous damage to its own economy, with consumer prices pushed up and jobs lost in both the export and import industries. China would retaliate, with a consequent disruption of Asian and world trade patterns. What bothers the U.S. is that, regardless of the enormity of the impact on world trade of the withdrawal of the MFN treatment, the threat is not taken seriously by China. The U.S. is frustrated in its search to find leverage to influence China's behaviour.
As a result of the problem of disproportionate cost, the real value to the U.S. of the MFN threat is low. It would make sense for Congress to cancel the MFN review law and seek to make China a rules-abiding member of the international trade community through encouragement rather than through threats. The U.S. must know that neither Canada, Japan nor Europe would follow its decision to bar China from world trade. Unilateral sanctions by the U.S. would not work. This should be the last time that the U.S. allows itself to go through such an ineffective domestic debate.
The trading world, including the United States, must recognize that its strategic interest is in having China as a full and participating member. We are talking about one-quarter of the world's population. China's economy is growing by over 10 per cent GDP every year. According to the World Bank, by the year 2010 China's economy will be the largest in absolute size, although not per capita.
The inclusion of China in the world trading system must come step by step and trading issue by trading issue. There are no home runs in this game. A peaceful world is constantly in the process of being created. The idea of some that China is an enemy of world peace is wrong. It has every reason to want to secure world peace. Its future prosperity depends on world peace. Let me repeat the words of Chancellor Helmut Schmidt, in talking many years ago about West German policy toward East Germany and Russia. He said:
Anyone who pictures others as enemies cannot bring about peace. Anyone who refuses to sit down and talk with others, and who will not listen to them cannot understand them.
Approximately eight years have passed since either the President or Premier of China has been welcomed in Washington, and since either the President or the Vice President of the United States has visited Beijing. This year, President Clinton has travelled to Tokyo, Seoul and Moscow, but has avoided Beijing. President Yeltsin of Russia has just returned from a visit to Beijing, where relations were described as the best that they had been in 40 years.
The Hon. the Speaker: Honourable Senator Austin, I must advise you that your three-minute time period has expired for your senator's statement.
Senator Austin: May I continue for a moment?
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Austin: China has not made it easy for the United States, or any country in the western democracies. The issues of China's human rights record, pressure on Taiwan and Hong Kong, and transfer of nuclear technologies are matters of concern, but they cannot be reasons to shun serious engagement with China. On the contrary, the United States has all the more reason to pursue a regular, high-level dialogue with China.
Canada has followed the right course with China. We are making every effort to integrate this rising country into the international system. Prime Minister Chrétien, nine of Canada's premiers, and many of the federal ministers have visited China within the last two years, to engage China in a dialogue concerning world trade issues, global and regional security, management of the environment, the development of China's legal system, human rights and governance issues, to name a few. In turn, we have received equally high-level visits from China, including Premier Li Peng last October, and National People's Congress Chairman, Qiao Shi in April, hosted by Senate Speaker Gil Molgat.
Our relationship with China requires patience, persistence, purposefulness and goodwill. It is an effort which would be of greater benefit if the United States would adopt it. The first step is to abandon the annual MFN review law.
Organ Donor Program
Hon. John G. Bryden: Honourable senators, this afternoon, I should like to bring honourable senators' attention to an article which appeared in the Telegraph-Journal on Tuesday, May 7, 1996. I would recommend it to you all. It is entitled, "The most precious of gifts; the ultimate price."It has received much favourable comment in New Brunswick, and has been referred to with approval by other media, including Maritime Noon, the mid-day CBC radio program out of Halifax.
The article is by Senator Simard. It is a personal yet objective account of his encounter with his imminent death and the miracle of a virtually last-minute organ transplant that saved his life and, among other things, sent him back here to continue to harass members on this side.
His article is also an eloquent endorsement of the Canadian medicare system, the expertise of our medical profession, and the life-giving miracle of the organ donor program. It is a long article. I hope honourable senators will read it, but I should like to provide a few quotations from Senator Simard's article. He states:
Most of all, I want you to understand that I am alive today because an ordinary person signed the back of his driver's licence, and agreed to donate his organs in the case of sudden death...
Although no organ transplants are performed in New Brunswick's hospitals, our provincial health system provides an excellent donor program with centres that make sure organs are procured, preserved and forwarded to specialized hospitals in Halifax and Quebec. There is solidand rational economic reasoning behind the fact that no transplant procedures are done here. The small population simply could not support a program that requires between 20 to 25 transplants of each organ a year to be feasible. It is, in fact, a tribute to the professionalism of the province's medical community that they are ready to do without what is a very glamorous field of medicine so that better care can be provided at affordable costs to all Canadians.
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This is one obvious reason we have to be proud of Canada's Medicare system. With goodwill and good sense, it does work for everybody, provides high quality care with the latest in advanced technology, and our transplant specialists can hold their own with the best in the world. I am a walking billboard to the excellence of their work. And we should never accept to take a back seat to other countries, like the U.S.A., where the quality of care is directly linked to the individual's ability to pay.
New Brunswickers, of course, are fully eligible for the procedure in the neighbouring provinces.
Politics fade fast in the hospital. It puts things in their proper perspective. If my doctor had been a card-carrying Liberal, I would have voted for him.
The Senator concludes, on a very important note:
But I can never forget that, were it not for a stranger with a deep sense of humanity and total altruism, I would not be here today.
Hon. Senators: Hear, hear!
ROUTINE PROCEEDINGS
Department of Public Works and Government Services Bill
Report of Committee
Hon. Pierre De Bané, Deputy Chairman of the Standing Senate Committee on National Finance, presented the following report:Tuesday, May 14, 1996
The Standing Senate Committee on National Finance has the honour to present its
FOURTH REPORT
Your Committee, to which was referred Bill C-7, to establish the Department of Public Works and Government Services and to amend and repeal certain Acts has, in obedience to the Order of Reference of Thursday, March 28, 1996, examined the said Bill and now reports the same without amendment.Respectfully submitted,
DAVID TKACHUK
Chairman
On motion of Senator De Bané, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.
Special Committee on constitutional amendments Bill
Report of Committee Tabled
Hon. Noël A. Kinsella: Honourable senators, pursuant to rule 104 of the Rules of the Senate, I have the honour to table the final report of the Special Committee of the Senate on Bill C-110, respecting constitutional amendments. That report relates to expenses incurred by the committee during the First Session of the Thirty-fifth Parliament.(For text of report, see today's Journals of the Senate.)
Adjournment
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, with leave of the Senate, and notwithstanding rule 58(1)(h), I move:That when the Senate adjourns today, it do stand adjourned until Wednesday, May 15, 1996 at one thirty o'clock in the afternoon.
The Hon. the Speaker: Honourable senators, is leave granted?
Hon. Senators: Agreed.
Motion agreed to.
Canadian Human Rights Act
Bill To Amend-First Reading
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-33, to amend the Canadian Human Rights Act.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On motion of Senator Graham, bill placed on the Orders of the Day for second reading at the next sitting of the Senate.
Social Affairs, Science and Technology
Committee Authorized to Meet During Sitting of the Senate
Hon. Mabel M. DeWare, with leave of the Senate and notwithstanding rule 58(1)(a), moved:That the Standing Senate Committee on Social Affairs, Science and Technology have power to sit at four o'clock in the afternoon today, May 14, 1996, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
The Hon. the Speaker: Honourable senators, is leave granted?
Hon. Senators: Agreed.
Motion agreed to.
QUESTION PERIOD
Justice
Sale of Airbus Aircraft to Air Canada-Alleged Conspiracy to Defraud Federal Government-Role of Royal Canadian Mounted Police in Investigation-Government Position
Hon. Richard J. Doyle: Honourable senators, my question today is directed to the Leader of the Government in the Senate, and has to do with the Royal Canadian Mounted Police and their continuing efforts to blacken the name and besmirch the reputation of the 24th Prime Minister of Canada.I confine the question to the villainy of the RCMP because the leader assured us, over and over again, on November 23, 1995, that no ministers of her government were aware of the Mounties' enlistment of the Government of Switzerland in their bald declaration that Mr. Mulroney was the central figure in a scandalous scheme to extract millions of dollars in payoffs for Airbus purchases while he headed the Government of Canada.
In April of this year, Mr. Mulroney made a statement that this persecution "reeks of fascism." He gave that description when he appeared at a pretrial hearing in the libel action that he has launched against the present government. Although the court had set aside three days for examinations for discovery in that matter, the government's lawyers, after only a day and a half of questioning, abandoned their interrogation. The second phase of the process was set for May 15, when Mr. Mulroney's attorneys would be permitted to examine his accusers.
The Honourable Leader of the Government will be aware that, yesterday, lawyers from the RCMP asked for a postponement of that hearing until next year, until January 10, 1997.
The question is irresistable: Why? We are told that the RCMP "do not want to jeopardize their investigation into allegations of improper payments in the Airbus affair."
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My question for the Leader of the Government in the Senate is: Does this mean that the Government of Canada is now asking a former Prime Minister to mark time while its constabulary searches for evidence of any kind to back up the detailed indictment it made more than six months ago?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, as the honourable senator knows, the case is presently before the courts, and thus I do not wish to comment on it. I am not involved in the details of that case.
As my honourable friend has noted, the RCMP has indicated that it would like to have more time in which to file a statement of defence. I believe the reasons behind that request will be explained in court by their lawyers. I have nothing further that I can add for my honourable friend.
Senator Doyle: Honourable senators, is the minister saying again at this time that the course of the Airbus affair is still exclusively and entirely in the hands of the RCMP - in fact, in the hands of a sergeant in the RCMP?
Senator Fairbairn: Honourable senators, the investigation in this particular case has been carried out by the RCMP. It is still being carried out by the RCMP. I have no further knowledge of the matter.
Senator Doyle: Honourable senators, we are told that the RCMP lawyers told the court yesterday that the request for assistance sent to the Swiss government was based on "independent information deemed credible enough to be verified, whether they are true or not."
Would the minister read into that statement what some of us on this side have read into it - that is, that the RCMP sergeant had nothing on which to go in launching his terrible indictment, beyond the wish lists of Canada's prime-time muckrakers?
Sale of Airbus Aircraft to Air Canada-Alleged Conspiracy to Defraud Federal Government-Endorsement of Investigation-Government Position
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, in the press release received today, which is headed, "Extension of time for filing of defence sought in Mr. Mulroney's claim against the Government of Canada and others" one reads:Lawyers for the RCMP and the Government of Canada filed a motion...
- to that effect.
As far as I can recall, this is the first time the Government of Canada has formally, or publicly, at any rate, associated itself with the RCMP investigation into what is known as the "Airbus affair."
When the matter first became one of public record, the Minister of Justice, the Solicitor General, and even the Prime Minister admitted complete ignorance of the investigation, and said that they would not get involved in it in one form or another because they did not want there to be a perception of political involvement in what was strictly a police matter.
Today, however, we see the Government of Canada associating itself with the RCMP in asking the courts to delay a particular hearing, on the assumption that the hearing would bring out or divulge confidential information which would jeopardize the investigation. From that, I can only assume that, inasmuch as the Government of Canada tried to detach itself from the investigation last fall, it has now become very closely associated with that investigation, since it has allied itself with the RCMP lawyers to petition the court on a matter of particular interest to the RCMP, insofar as its assessment of the investigation is concerned, and how its course might be affected by the civil trial being allowed to continue.
Now that the government has formally endorsed the investigation by taking this action in court, can the Leader of the Government in the Senate tell us whether the government is satisfied with the way in which the investigation has proceeded to date?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the assumptions contained in the words used by the my honourable friend are his assumptions. I cannot answer his question today. I have no knowledge of the contents of the investigation. I will take his question to my colleagues to find out whether I can offer any enlightenment to him.
Senator Lynch-Staunton: Honourable senators, I find it extraordinary that in such a sensitive matter as this one, one in which a former prime minister has been stripped of the presumption of innocence and declared a criminal in official government documents, the Leader of the Government in the Senate cannot give us an indication of where the government stands on this matter.
The press release speaks for itself. It states that the government endorses the RCMP's request for an extension. Therefore, the government endorses the investigation, and therefore one can only assume that it endorses how that investigation has proceeded to date - and I am now answering my own question.
In the translated public document which was sent to the Swiss authorities by the Department of Justice in September of last year - which was central to the RCMP investigation, and which the Government of Canada will be endorsing as a result of its joint appearance before the courts tomorrow to ask for a delay in the civil trial - one reads:
The investigation is of special importance to the Canadian government because criminal activities carried out by the former Prime Minister are involved.
In an official document sent to the Swiss authorities, the Government of Canada, in effect, has declared a Canadian citizen to be a criminal without laying any charges against that citizen in his own country. As a result, the government has stripped him of the presumption of innocence.
Over and over again, we have read how the Justice Minister, Allan Rock, in intervening in a particular case in Montreal, has declared the sanctity of the rule of law and protection for the Constitution. Therefore, it is appropriate that I should raise this question. Does the Government of Canada endorse this paragraph, which is not out of context, contained in a letter sent last September by the Department of Justice to the Swiss authorities? I wish to quote from it again. It states:
The investigation is of special importance to the Canadian government because criminal activities carried out by the former Prime Minister are involved.
Senator Fairbairn: Honourable senators, as I told my honourable friend earlier, I will take his questions, seek clarification and report back to him.
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Sale of Airbus Aircraft to Air Canada-Alleged Conspiracy to Defraud Federal Government-Endorsement of Investigation-Level at Which Decision Taken-Government Position
Hon. Lowell Murray: Honourable senators, perhaps there is some further information which the Leader of the Government might try to bring in when she reports. Perhaps she could ascertain the level at which the decision was made to have the RCMP and the government seek an extension of seven months before filing their statements of defence. Was this decision taken at the Kimberley Prost level? Was it a deputy ministerial decision or a ministerial decision? Would the minister ascertain how that was done? Were the ministers responsible for the RCMP and for the Department of Justice knowledgeable of this matter?Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I will transmit my honourable friend's questions. As I indicated, this matter is currently before the courts in Montreal so I am sure honourable senators will forgive me when I say that I do not have knowledge of these matters. However, I will convey the questions posed by my honourable friends today to my colleagues and see what I can ascertain.
Senator Murray: Honourable senators, let me add one more name to the list of people in respect of whom I would like to know whether they had knowledge or gave consent to this request for an extension. I mentioned the minister responsible for the RCMP and the Minister of Justice. I add the Prime Minister to that list.
Goods and Services Tax
Harmonization with Provincial Sales Taxes-Powers of Proposed Canada Revenue Commission-Request for Particulars
Hon. Orville H. Phillips: Honourable senators, my question is for the Leader of the Government in the Senate. I have here a copy of a memorandum of understanding on the sales tax harmonization between the federal government and the three Atlantic provinces. I would point out to the Leader of the Government that it is a memorandum of understanding, not an agreement, as she has been informing the Senate.Item five establishes the Canada Revenue Commission, and the provinces have participatory representation on that commission. However, the memorandum of understanding makes it perfectly clear that the federal government will have the final say. Is that not removing certain of the provincial tax powers from the provinces and investing them in the Canada Revenue Commission?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, my honourable friend is quite right in saying that it is a memorandum of understanding between the federal government and the three provinces in Atlantic Canada. As far as the commission is concerned, it has not been set up. The commission will be part of the ongoing effort to institute a nationwide tax. I will attempt to obtain further information for my honourable friend.
Senator Phillips: Honourable senators, the memorandum of understanding specifies a date for the commission to be established. My question related to the transfer of provincial tax authority. I note that my honourable friend is not answering that question, so I think I already know the answer.
Harmonization with Provincial Sales Taxes-Situation of Contract Employees at Summerside Centre-Government Position
Hon. Orville H. Phillips: Honourable senators, my next question relates to item 14 dealing with human resources. Items 14 and 15 state that the federal government will be taking over responsibility for taxation and that the provincial tax employees, to the greatest extent possible and in numbers that are commensurate with the workload of administering the tax, will be offered federal employment. I find it rather strange that we have a provision like this when we are laying off thousands of federal civil servants.However, I have a particular question with regard to the GST centre in Summerside. A large portion of the employees there are contract employees. For example, they may have contracts for six months, and, as the workload declines, they may be laid off for, say, three months and later re-engaged in another contract for a further six months. How many of these contract employees will be replaced by provincial tax employees under the agreement to provide them with employment?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I cannot answer that question for Senator Phillips today. I am not entirely sure it is a question for which I can obtain a specific answer, but I will try.
Harmonization with Provincial Sales Taxes-Studies Conducted on Adverse Effects-Request for Answer
Orville H. Phillips: Honourable senators, I appreciate that the honourable senator will have to ask for that information. While she is asking for that information, would she please repeat my request for the studies to be tabled. I can tell by the look on her face that the honourable senator has completely forgotten about my request. I am glad to remind her that she undertook to table any studies carried out between the federal government and the provinces concerning harmonization of the GST.Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I thank the honourable senator for jogging my memory. I will look at my honourable friend's earlier request and attempt to follow through on it.
Canada Census
Contract Workers-Basis on which Selection Made-Government Position
Hon. Gerald J. Comeau: Honourable senators, my question is for the Leader of the Government in the Senate, and it relates to the 1996 census, which is in fact being taken today.In the past, Canadians could apply to the census office to be considered for hiring, regardless of political affiliation. The Liberal government has changed that practice and now requires that, in order to be eligible for hiring, one must make it on to the list being compiled by the Minister of Industry, John Manley. Does the honourable leader agree with the government's position of turning these 35,000 jobs into patronage appointments, or would she support reverting back to the former hiring procedures?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I absolutely do not agree with the comment made by my honourable friend about the nature of these positions. I think the people who are conducting the census have been chosen on merit and qualification. I have absolutely no doubt that they will do a first-class job for the people of Canada on this very important task.
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Senator Comeau: Is the minister specifically denying that there is such a thing as an "A" list and a "B" list, the "A" list containing names that have been submitted by members of Parliament, and the "B" list containing the names of those people who can apply for the left-over positions? Is she specifically denying that those lists exist?
Senator Fairbairn: Honourable senators, I am making no comment whatsoever because I am unaware of any such lists as Senator Comeau is laying out before us today. I am certainly not confirming or denying anything of that nature.
What I am telling him is that the people chosen to conduct the Census of Canada have been chosen with care, on the merits of their ability to do the job. I have every confidence that, right across this country, they are doing that job, and will do it very well for Canadians.
Public Works and Government Services
Proposed Elimination of Grants Payable by Federal Government in Lieu of Municipal Taxes-Government Position
Hon. J. Michael Forrestall: I would ask the minister to give us the benefit of her thoughts, if she would, on press reports that I have been reading recently with respect to the government's intention to slash the grants that they make in lieu of taxes to municipalities in Canada. While the government is not required to pay these grants, we are all aware that an agreement to this effect has been in place since 1949, and that arrangement has been quite acceptable.I will cite the situation in which Halifax finds itself because of my own interest, but the same circumstances apply from St. John's all the way to Vancouver. In the case of the new municipality of Halifax, I understand that the sum in question would be in the order $1 million. The slashing of such an amount of money from the budget of that fledgling municipality would cause serious difficulties.
Can the minister give us some indication as to whether the press reports have any validity, or whether they are just speculation?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I would be grateful if Honourable Senator Forrestall would send across to me the media reports to which he has referred so that I can look into that situation for him.
Senator Forrestall: I will send them to the office of the Leader of the Government in the Senate very shortly. In the meantime, while the minister is advising herself on this initiative, would she give us her general opinion as to whether this is something that could have emanated from cabinet? I am not asking the minister to divulge cabinet secrets, but is this the line of cost reduction that is being pursued by the government? I say that, knowing the general observation that everything is on the table. Surely, without prior consultation, without in-depth conversations with the provinces, any serious cutback of this nature would have a telling effect. Is this a matter that the government might discuss, and indeed, has it?
Senator Fairbairn: Honourable senators, I look forward to seeing my friend's media clippings. Then I will seek views and opinions far more expert than my own on this very important matter.
The Economy
Remarks of Governor of Bank of Canada-Government Position
Hon. Erminie J. Cohen: Honourable senators, last week the Governor of the Bank of Canada made a statement to the effect that the war on inflation had been so successful that there is now a risk of deflation. The Governor points out that this could devastate the economy because, in his own words:In a deflationary situation, there is a strong incentive for people to delay buying because you expect that next month, or the month after that, the price is going to be even lower.
Honourable senators, in spite of this warning, and in spite of last week's report by the Bank of Nova Scotia that the real unemployment rate is closer to 13 per cent than to the published 9.4 per cent, the Bank of Canada is not yet ready to lower interest rates.
I address my question to the Leader of the Government in the Senate. Does the government take seriously the Governor's warning that there is a threat of deflation? If so, how does it intend to respond to that threat?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I, too, was interested in the Governor's remarks. Certainly, should deflation every occur in this country, it would be bad for the economy, but we are not about to experience deflation.
In recent months, the Governor of the Bank of Canada has noted that the inflation rate had dropped close to the lower level of the target range that he had set and, subsequently, the Bank of Canada lowered interest rates. I believe that the indicators which have been coming out in recent weeks show that the economy will be picking up, and the growth improve in coming months. This will set the government's program of job creation - which has been favourable indeed in the last four months - on a strong course for the rest of the year.
I would not for a moment pretend to know what the Governor of the Bank of Canada might or might not do in any given situation. However, the course of our economy is strong, and is improving, and the country's finances are also very strong, as the Prime Minister noted in his remarks last night.
The Senate
Answers to Oral and Written Questions Posed Prior to Prorogation-Position of Leader of Government
Hon. Eric Arthur Berntson (Deputy Leader of the Opposition): Honourable senators, I have a question for the Leader of the Government in the Senate. It stems from a ruling of His Honour the Speaker last week relative to the effect of prorogation on delayed answers to oral questions.As it happens, five years ago today, on May 14, there was a similar question raised by the Honourable Senator Bosa to the Leader of the Government of that day, Senator Lowell Murray.
The ruling of last week seems to indicate that, in the absence of a particular rule, this is a matter that is left to the discretion of the Leader of the Government as to her policy on the effect of prorogation on these delayed answers.
Five years ago today, on the same subject, Senator Murray had this to say:
...I have taken the position that outstanding oral questions, and indeed one outstanding written question, should be answered.
He continued:
As a matter of fact, Senator Doody has some delayed answers today.
That was following prorogation in 1991.
My question to the Leader of the Government in the Senate is: Just what is the policy of the leader relative to supplying the answers to questions that were on the Order Paper, or undertakings given prior to prorogation?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I do not have the quote of Senator Murray in front of me. I believe it referred to oral questions and, at the time, perhaps one written question. Certainly in terms of oral questions, I am quite prepared to follow Senator Murray's precedent.
Answers to Order Paper Questions Tabled
Veterans Affairs-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 6 on the Order Paper-by Senator Kenny.Treasury Board-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 13 on the Order Paper-by Senator Kenny.Western Economic Diversification-Vehicles Purchased-Request for Particulars
Hon. B. Alasdair Graham (Deputy Leader of the Government) tabled the answer to Question No. 25 on the Order Paper-by Senator Kenny.(1500)
ORDERS OF THE DAY
Law Commission of Canada Bill
Third Reading
Hon. Landon Pearson: Honourable senators, I move third reading of this Bill C-9, respecting the Law Commission of Canada.The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Hon. William M. Kelly: Honourable senators, I should like to take a few moments to explain some remarks pertaining to Bill C-9 that I made in this chamber on April 23. In particular, I want to respond to some questions put by my good friend Senator MacDonald, who scoffed at the inference in my remarks that the functions of the proposed Law Commission could or should be undertaken within the Department of Justice. I should like to make several points in response.
First, since the original Law Reform Commission was wound up in 1993, the functions which it performed and which are to be performed now by the new Law Commission have been performed by the Law Reform Division within the Department of Justice. The original Law Reform Commission was the subject of some criticism, notably from the Auditor General of Canada, who said that it had not performed its duties fully in compliance with its statute, nor with due accountability to the minister, nor with economy, efficiency and effectiveness. Against that background, we have been presented with no evidence whatsoever that the Law Reform Division of the Department of Justice did not perform its functions well.
Second, as I read the government's description of the modus operandi of the new commission, it will contract out all its research activities to academics and other outside legal and constitutional experts. I do not comprehend why this contracting out function requires arm's-length independence and why it could not be more efficiently conducted within the department, rather than duplicating administration within the new commission.
Third, I suggest that Bill C-9 raises a fundamental question: Can we no longer expect independent, objective, and expert policy advice from our neutral, non-partisan, and expert public service? Must we set up a new body each time we require independent policy advice? If so, I suggest we have a serious problem with which we must deal.
I know that some independence is required in a law review function, if only for perceptual reasons. The model I had in mind, which has been used successfully elsewhere, consists of the following elements: An advisory committee of outside experts would be appointed by the minister under his existing statutory authority. The members would be paid a per diem and expenses accordingly. A departmental official would be designated as secretary to coordinate the activities of the advisory committee in the preparation of reports, and so on, and to coordinate the contracting-out procedure. The actual contracting out, RFPs, contracts, payments against deliveries, and so on, would be administered by the administration branch of the Department of Justice. The direction of the studies would be set by the advisory committee. The products would also be reviewed by the advisory committee.
We all agree that governments must think smarter. The essential purpose of my remarks on Bill C-9 was to encourage a rethinking of whether the route being proposed - essentially a reinventing the old Law Reform Commission - was an example of thinking smarter or simply a knee-jerk reaction to fulfil a Red Book promise.
Senator Pearson: Honourable senators, I regret that Senator Kelly was not able to attend the committee meetings and mention these issues in our discussion with the officials from the Department of Justice. All of his colleagues and those on this side were, in the end, quite satisfied that the proposed restructuring would answer many of the issues he has just raised.
I feel personally convinced that this arm's-length capacity to engage ordinary Canadians - whether anyone with knowledge of the law is considered entirely ordinary, I do not know - from across the country is better addressed by the structure that has been proposed in this legislation than the structure under the Law Reform Commission. After listening to all the evidence presented, I personally am convinced that this new body will be much more responsive to the needs of Canadian society as a whole.
Motion agreed to and bill read third time and passed.
Pearson International Airport Agreements Bill
Second Reading-Point of Order-Speaker's Ruling sustained-further point of order
Leave having been given to proceed to Order No. 3:The Hon. the Speaker: Honourable senators, when second reading debate was again about to begin on Bill C-28, Senator Kinsella rose on a point of order to object to any further proceedings on the bill. This objection rests on two main points: First, he believes that the message from the House of Commons is defective; second, he feels that the proceedings on the bill in the House of Commons were contrary to established principles of parliamentary procedure. Following his statement, several other senators participated in the discussion on the point of order. I thank those who spoke on the matter.
Since then, I have read the Debates of the Senate and reviewed the authorities cited, and I am prepared to make my ruling. I will deal with the issues raised by Senator Kinsella and other senators in proper sequence.
The first matter I will address relates to an observation made by Senator MacEachen about the time when a point of order should be raised. He is generally correct in stating that a point of order relating to a breach in our practices should be raised when the breach is first noticed and before it becomes futile to point it out. Beauchesne's Parliamentary Rules and Forms, 6th edition, at citation 319 on page 97, states:
Any Member is entitled, even bound, to bring to the Speaker's immediate notice any instance of a breach of order. The Member may interrupt and lay the point in question concisely before the Speaker. This should be done as soon as an irregularity is perceived in the proceedings which are engaging the attention of the House. The Speaker's attention must be directed to a breach of order at the proper moment, namely the moment it occurred;
And at citation 321:
A point of order against procedure must be raised promptly and before the question has passed to a stage at which the objection would be out of place.
Although Senator Kinsella linked his point of order to the message which was received some days ago, it involves more than just the message itself. Moreover, Senator Lynch-Staunton is right in observing that the Rules of the Senate limit the opportunity to raise a procedural objection when a bill is introduced and read the first time. This point was made as well by Senator Phillips. Accordingly, I find that Senator Kinsella has raised his point of order within an appropriate time.
[Translation]
Citing Erskine May's Parliamentary Practice, 21st edition, at page 510, Senator Kinsella noted:
If a bill is carried to the other House by mistake, or if any other error is discovered, a message is sent to have the bill returned or the error rectified.
Looking beyond the message, the error that is the focus of his argument is the treatment the bill received in the House of Commons. Although the message accompanying Bill C-28 stated that it had been passed by the House, Senator Kinsella contends that the House did not abide by its procedures and that it sent to the Senate a defective bill. According to the senator, Bill C-28 is not Bill C-22 as at the time of prorogation. This, he claims, is a violation of the order which the House of Commons itself adopted on March 4, 1996. Senator Lynch-Staunton subsequently reiterated and summarized the position stated by Senator Kinsella when he asked if the bill had been returned to the Senate in the same form as it was at the time of prorogation. For him, the answer clearly and emphatically is "no".
[English]
In response to this argument, Senator Stanbury maintained that the Senate had no right or authority to look into the proceedings of the House of Commons. Referring to Beauchesne's Parliamentary Rules and Forms, at citation 4, the senator took note of an important privilege enjoyed by all legislative bodies, the right to regulate their internal proceedings. Yet the point of order, according to Senator Stanbury, seeks to do precisely this. It is, in his words:
an invitation to the Speaker to destroy unilaterally parliamentary tradition and constitutional conventions.
(1510)
In addition to his objection about when the point of order was raised, Senator MacEachen argued that any comparison between Bill C-22 of the last session and Bill C-28 now before the Senate is irrelevant. Prorogation, as he put it, has wiped the slate clean and "it is irrelevant whether Bill C-22 was ever in the last session." Moreover, he stated that:
The House of Commons is entitled to send any bill in any form to us and we are entitled to deal with it as we wish.
This, then, is the core of the argument on the point of order: On the one hand, it is maintained that this bill cannot be received by the Senate in its present form because it is not identical to Bill C-22 as at the time of prorogation; on the other hand, it is contended that any comparison is immaterial and to look into this question is to interfere with the internal proceedings of the other place. It is my task as Speaker to determine if this issue constitutes a valid point of order upon which I can rule.
[Translation]
As Speaker, I find that my authority is, and must be, limited by the mandate I have through tradition and the Rules of the Senate. Under rule 18, for example, the Speaker is empowered to preserve order and decorum. The Rules also explain my role with respect to putting motions and calling votes. The responsibilities of the Speaker, moreover, are confined to the proceedings of the Senate itself. My jurisdiction does not extend beyond these four walls. It is with these limitations in mind that I must consider the substance of the point of order raised by Senator Kinsella.
An allegation has been made that the message is defective, but in what way remains unclear to me. While I believe that the Senate would have the right to consider bringing such a problem to the attention of the other place, it would likely do so only when confronted with incontestable evidence. If the message included a bill containing financial provisions without the requisite Royal Recommendation, it would be competent for the Senate to return the bill to the House since, under the provisions of rule 81, such bills cannot be considered in this place without a recommendation from the Queen's representative.
[English]
Alternatively, if the message somehow infringed the privileges of the Senate, or impinged upon the ability of the Senate to conduct its business adequately, the Senate might have to consider appropriate action. In this particular case, however, I can find nothing to justify the claim that the message or the bill contains a mistake or error, or is defective in any way.
Bill C-28 has been sent to the Senate from the other place as passed on April 19, 1996. Noted on the cover of the bill is the statement that this bill is "in the same form as Bill C-22 of the First Session of the Thirty-fifth Parliament, as passed by the House of Commons in that session." The message attached to the bill, signed by the Clerk of that House, states that it was an order of the House that the Clerk "do carry this bill to the Senate, and desire their concurrence." Nothing in the message or the bill warrants any interference on my part as Speaker of the Senate.
With respect to the matter of the proceedings of the House of Commons, as I suggested earlier, I have no authority whatever to consider such a question as a point of order. I have no right to look into the proceedings of the other place to determine if it has acted in accordance with proper parliamentary practice. The privilege of that House, like our own, to regulate its own internal proceedings is indisputable and cannot be questioned. However, if the House of Commons itself determines that an error has been made in transmitting Bill C-28 to the Senate, it can advise the Senate accordingly by another message, and this would be in keeping with the reference Senator Kinsella made to Erskine May at page 510. To date, there has been no notification from the House of Commons. Instead, I am asked to deal with a point of order raised here, but as I have tried to explain, it is beyond my authority. I cannot accept any point of order founded on the proposition that the other place did not follow adequate parliamentary procedure. The Senate must determine for itself how it will proceed with the consideration of this bill. I must rule that the bill is properly before the Senate.
And two honourable senators having risen.
The Hon. the Speaker: Are the honourable senators appealing the Speaker's ruling?
Hon. Eric Arthur Berntson (Deputy Leader of the Opposition): Yes, Your Honour.
The Hon. the Speaker: The question before the Senate, then, is: Will the Speaker's ruling be sustained? Will all those in favour please say "Yea"?
Some Hon. Senators: Yea.
The Hon. the Speaker: Will all those opposed please say "Nay"?
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: What is the agreement between the whips?
Senator Berntson: The agreement is that the bells will ring for 30 minutes.
The Hon. the Speaker: The vote, then, will be held at 3:45 p.m.
Please call in the senators.
(1550)
Speaker's ruling sustained on the following division:
YEAS
THE HONOURABLE SENATORS
| Adams, Anderson, Austin, Bacon, Bonnell, Bosa, Bryden, Carstairs, Cools, Corbin, Davey, De Bané, Fairbairn, Gauthier, Gigantès, Graham, Haidasz, Hays, Hébert, Hervieux-Payette, Kenny, Kirby, Landry, Lawson, Losier-Cool, MacEachen, Maheu, Marchand, Milne, Pearson, Petten, Pitfield, Poulin, Riel, Rizzuto, Robichaud, Rompkey, Roux, Sparrow, Stewart, Taylor, Watt, Wood-43 |
THE HONOURABLE SENATORS
| Andreychuk, Atkins, Balfour, Beaudoin, Berntson, Cogger, Cohen, Comeau, DeWare, Di Nino, Doyle, Forrestall, Kelleher, Kelly, Keon, Kinsella, Lavoie-Roux, LeBreton, Lynch-Staunton, Murray, Phillips, Rivest, Rossiter, Simard, Spivak, Stratton-26 |
THE HONOURABLE SENATORS
| Nil. |
Is it your pleasure to adopt the motion?
Point of Order
Hon. Orville H. Phillips: Honourable senators, I rise on a point of order.My point of order is that Bill C-28 is a bill of pains and penalties. The essential element or ingredient, if you wish, of a bill of pains and penalties is that it apply to a particular case, circumstance or even a particular group. It must apply retroactively. In this case, the bill of pains and penalties applies to a small group of people, those who negotiated a contract concerning Pearson airport. It does not apply to the general public. Therefore, it is limited to a specific case and a specific group.
A bill of pains and penalties also ousts the court. It removes the rights normally accorded to citizens under our common law.
I draw the attention of honourable senators to the following clauses in Bill C-28. Clause 3 eliminates agreements. It says that they have never come into force and have no legal effect. Clause 4 eliminates all obligations, rights and interests arising from the agreement. Clause 7 eliminates the common-law right to sue. Clause 8 supersedes the courts and dismisses any action or proceeding before proclamation of this act. Clause 9 states that no one is entitled to compensation. Therefore, all the ordinary rights have been extinguished.
Honourable senators, the fact that this bill has been brought forward implies that there is some wrongdoing. Whether this wrongdoing was real or imaginary is not really the point. The government is imposing a bill of pains and penalties without even telling us what the offence was.
I draw the attention of honourable senators to a speech made by the Honourable Senator Pitfield on July 7, 1994. I will not go into all the details of that speech. I am sure honourable senators remember it as well as I do. In that speech, Senator Pitfield said that he did not feel this was the way to proceed. I am sure all honourable senators feel some discomfort in proceeding in this manner.
The question, honourable senators, is: Does the government have the right to bring in a bill of pains and penalties? I very much question its right to do so. I now turn to a recent decision rendered in this chamber by His Honour the Speaker on Bill S-11 on November 28, 1995.
I refer to the fact that there was one precedent in 1984 in the other place, which the Speaker of that House ruled out of order. In his decision the Speaker of the Senate stated:
As Senator Kinsella pointed out, in 1984 the Speaker of the House of Commons ruled the bill out of order. In his decision, the Speaker noted that the procedure regarding bills of attainder or bills of pains and penalties had been obsolete in Britain for many years, and that "it has never existed in Canada."
Honourable senators, I am not aware of any decision since last November 28 that changed that ruling of His Honour the Speaker.
The question is: Does the government have a right in this chamber which a private member does not have? If bills of attainder and bills of pains and penalties are out of order for a private member, then they are out of order for the government.
I feel that the Chair has no option but to recognize its ruling of November 1995. Therefore, I ask the Chair to recall its ruling and to invoke the same decision it did in the previous bill of attainder or pains and penalties.
(1600)
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, on Tuesday, April 23, we were anticipating the commencement of debate on second reading of Bill C-28. Senator Kirby rose to move the motion for second reading. As he was about to do so, Senator Lynch-Staunton raised a point of order. He argued that the bill, which had come to us from the House of Commons, was improperly before Parliament because of events in a Toronto courtroom. Last Wednesday, the Speaker ruled on his point of order. Once again, Senator Kirby sought to move the motion on second reading. Once again, he was stopped by a point of order, this time from Senator Kinsella.
Senator Berntson: Quite properly, again.
Senator Graham: Once again, it was a point of order where not a single precedent was cited to support it. The Speaker took the matter under advisement and, once again, Senator Kirby was prevented from speaking.
Today, the Speaker ruled on Senator Kinsella's point of order. Once again, Senator Kirby rose to speak and, once again, like a broken record, another point of order has been raised. Therefore, Senator Kirby is once again prevented from speaking.
Senator Berntson: Quite properly.
Senator Graham: Honourable senators, two points must be made about what has happened over the past two weeks. First, it is clear that, for whatever reason, the opposition does not want Senator Kirby to speak.
Senator Lynch-Staunton: At this time.
Senator Graham: Instead of expressing interest or curiosity about what Senator Kirby has to say about this allegedly heinous piece of legislation and how he intends to defend and advance it, the opposition wishes to muzzle him.
Some Hon. Senators: No!
Senator Graham: The opposition wants to prevent each and every one of us from debating the bill on its merits. I suggest it fears open debate. The opposition does not want to debate this bill; it wants to abort this bill before any debate even takes place.
Senator Lynch-Staunton: We could have done that two years ago.
Senator Graham: Honourable senators, the second point I wish to make is that we are witnessing points of order parcelled out in succession -
Senator Berntson: You can only raise one at a time.
Senator Graham: - with the objective of delaying the work of the Senate. The point of order raised last Wednesday was alluded to on Tuesday, April 23, by Senator Lynch-Staunton and Senator Berntson. However, it was not raised at that time; rather, it was held in reserve. I ask the question "why?"
Honourable senators, the answer is obvious: In the event the Speaker ruled against them, the opposition needed something else to try and prevent Senator Kirby from speaking. That is precisely what occurred last week. That is precisely what is happening once again today. This could go on indefinitely - every day, a new, specious point of order. Whether there is any merit in the point of order is irrelevant because the objective is to prevent, at all costs, Senator Kirby from speaking.
Senator Lynch-Staunton: At this time.
Senator Graham: Honourable senators, a point of order must be raised at the earliest opportunity because, if it breaches the orders, it should be rectified as quickly as possible.
Indeed, in his ruling today, the honourable speaker stated:
The first matter I will address relates to an observation made by Senator MacEachen about the time when a point of order should be raised. He is generally correct in stating that a point of order relating to a breach in our practices should be raised when the breach is first noticed and before it becomes futile to point it out. Beauchesne's Parliamentary Rules and Forms, 6th edition, at citation 319 on page 97 states:
Any Member is entitled, even bound, to bring to the Speaker's immediate notice any instance of a breach of order. The Member may interrupt and lay the point in question concisely before the Speaker. This should be done as soon as an irregularity is perceived in the proceedings which are engaging the attention of the House. The Speaker's attention must be directed to a breach of order at the proper moment, namely the moment it occurred.
And at citation 321:
A point of order against procedure must be raised promptly and before the question has passed to a stage at which the objection would be out of place.
That is what the Speaker stated in his ruling today.
Senator Phillips' point of order does not meet that requirement. To hold points of order in reserve to be doled out one at a time for tactical considerations displays is, I suggest, a contemptuous attitude toward every senator in this chamber.
Honourable senators, if there are points of order -
Senator Berntson: Can I borrow your kazoo?
Senator Graham: - which, by definition, are concerned with the proper conduct of proceedings in this chamber, they should be submitted immediately. Points of order are given high priority in our proceedings because they deal with how we as a house conduct our business. However, when that priority is used for other purposes, I suggest strongly that it demeans the process - indeed, honourable senators, it demeans the Senate.
Hon. Noël A. Kinsella: Honourable senators, it is always nice to listen to our friend Senator Graham, our learned colleague and parliamentarian, who, doubtless, from his experience has learned the lesson that if you cannot negotiate substance, you have to negotiate history. We have been given a lesson in historical revisionism from a point in history that is not far removed from us.
It is interesting that Senator Graham would cite the Speaker's ruling. I was intrigued that he did not draw us to the last paragraph of page 3 of the Speaker's ruling, which states:
...Senator MacEachen argued that any comparison between Bill C-22 of the last session and Bill C-28 now before the Senate is irrelevant. Prorogation, as he put it, has wiped the slate clean...
Then, Senator Graham failed to point out that the Speaker stated in paragraph 3 on page 5 of his ruling:
Bill C-28 has been sent to the Senate from the other place as passed on April 19, 1996. Noted on the cover of the bill is the statement that this bill "is in the same form as Bill C-22 of the First Session..."
Honourable senators, in the point of order raised by Senator Phillips, we are not arguing the history of this file. We are arguing and debating whether what is before us in Bill C-28 is a bill of pains and penalties.
As Senator Phillips pointed out, on my birthday, November 28, some five-and-a-half months ago, the Speaker ruled on a point of order that I had raised in reference to a bill sought to be introduced by our colleague Senator Cools, Bill S-11. It was the Speaker's decision that Bill S-11 was of the nature of a bill of pains and penalties and that, therefore, the bill, which is not part of our tradition or practice, had to be expunged from the Order Paper. That is indeed what happened as a result of the Speaker's decision.
(1610)
The heart of the point of order that my colleague Senator Phillips is raising, or the essence of it, as I understand it, is that Bill C-28 is of the same nature as a bill of pains and penalties. What we must zero in on is not a political observation or a lesson in revisionist history, but on a serious reflection, because the good point that Senator Graham makes - like Saint Augustine, we find good in everything - is that Bill C-28 which is before us has presented some serious problems to this chamber because it is unprecedented. That is the point to which Senator Graham alludes, and with which I agree. That is, we do not have an easy set of precedents from which to draw guidance. In a way, we are navigating new waters. However, the best we can do, as Senator Phillips has done for us, is to look at the practices and the rulings of our own chamber, and we have that ruling of November 28, 1995.
What is it about Bill C-28 that would allow us to reflect, or debate, or try to understand whether Bill C-28 is of the nature of a bill of pains and penalties? Senator Phillips has given us some of the tests which are to be applied in trying to make that judgment. One such test is: does it apply to an individual or to an identifiable group of individuals? In other words, is the effect of the exercise of the power of the state, or the power of Parliament, such that an individual or a group of individuals from the body politic will be set aside and will suffer a consequence or an effect which the general body politic does not experience? Bill C-28, it seems to me, meets that test because it will be imposing a penalty and a disadvantage on a particular group of individuals; a benefit which they had secured as a result of two judgments of our courts.
The second test drawn to our attention by Senator Phillips, and against which we must measure Bill C-28, is whether the power of Parliament will apply a pain or a penalty or a disadvantage to a group of individuals in a retroactive fashion. That is exactly the effect of Bill C-28, should it ever become law.
A third test is whether the power of Parliament, as applied to a group of individuals and not to the body politic - not to everyone universally - adversely impacts upon a benefit or a right which those individuals had sustained for them by the courts. Of course, that is exactly what has happened in this case.
A fourth test would be the impact of this kind of measure in relation to the common law in the tradition that the groups of individuals have all those rights excepting those rights which have been taken away from them, as it were, by Parliament. Again, Bill C-28 is attempting to do exactly that. The retroactivity is self-evident.
These are but a few of the points which raise for us a serious matter, a new matter, other than the fact that we have had this experience and ruling on November 28. I think that Senator Phillip's point of order is very important, and should be sustained by a ruling from the Speaker.
Hon. Anne C. Cools: Honourable senators, I should like to speak to this point of order, and I shall try to do my finest job on this difficult subject-matter. This whole situation today demonstrates to us that, as members and parliamentarians, we ought to pay very careful attention to the issue of the powers of the Senate.
Honourable senators, Bill C-28 is in order, even though Senator Molgat's ruling of November 28, 1995 on Bill S-11 would declare it out of order and halt its proceedings in this chamber. Senator Phillips and Senator Kinsella have claimed that it is a bill of pains and, on the surface, Bill C-28 is a bill of pains. According to Senator Molgat's ruling of November 28, it may not proceed in this chamber. As a supporter of Bill C-28, I ask Senator Molgat to revisit and overturn his November 28, 1995 ruling so that it may not imperil Bill C-28.
Senator Molgat, in ruling on Bill S-11, another bill of pains, with respect to admissibility in the Senate stated:
...I...rule that... Bill S-11 is out of order. The order for the second reading of this bill should be discharged and the bill struck from the Order Paper.
That ruling was on a point of order raised by Senator Kinsella on October 19, 1995 with respect to Bill S-11. That point of order was raised by Senator Kinsella even before a senator had moved second reading, which is the same pattern that is happening with respect to Bill C-28 at this time.
Senator Molgat's ruling stated:
On Thursday, October 19, when the order for second reading of Bill S-11 ... was called, Senator Kinsella rose on a point of order. The purpose of his point of order was to object to proceeding with the bill because, in his view, the bill is not one that falls within the traditions, customs and rules of this house.
Senator Molgat's ruling continued:
Assessing the nature and scope of Bill S-11, Senator Kinsella concluded that the bill is in the nature of a bill of attainder, falling into a special category of public bill for which our practices do not provide.
The real issue to be decided is the objection of Senator Kinsella that Bill S-11 is a species of public bill that is not known to our practice...I am not aware of any other similar bill... of pains and penalties....
At the time, Senator Molgat noted my position, stating:
Speaking on behalf of the bill, Senator Cools pointed out that the bill is not, in fact, a bill of attainder, but, rather, one of pains ... and that our Parliament has the power to enact such bills.
Honourable senators, Senator Kinsella, supported by the Speaker pro tempore, Senator Ottenheimer, and opposition leader Senator Lynch-Staunton, were far-seeing and innovative. They employed a point of order as a device to defeat the moving of a question even before the question was put, in other words, to halt debate. The question not being put, then Senator Kinsella asked the Speaker to adjudicate on the substance, admissibility, and fittingness of the Senate to proceed with Bill S-11.
(1620)
Senator Kinsella was successful in both initiatives. He obtained a Speaker's ruling, which has become Parliamentary jurisprudence, a precedent wherein the Speaker first upheld his device. The Speaker basically said that it was parliamentary to raise a point of order before the question was properly put, despite all the citations in Beauchesne, then acceded to the point that Senator Kinsella raised, therein to defeat the bill because it was a bill of pains.
Honourable senators, the defeat of a bill by a speaker is unprecedented because parliamentary practice holds that speakers may not defeat bills, comprehending that if a speaker can defeat one bill, he can defeat all bills or any bill.
Honourable senators, I ask His Honour to rescind his ruling of November 28, 1995.
On November 6, 1995, a few days after Senator Kinsella's point of order and before His Honour ruled, I raised a question of privilege on the same issues, querying Senator Kinsella's actions in submitting this adjudication to the Speaker. I quoted Beauchesne's fifth edition, paragraphs 296 and 240, to support my position. Rule 296, regarding raising a point of order before a question is put, states that:
It is a paramount principle that no Member may speak except when there is a question before the House.
This is the same position in which Senator Kirby presently finds himself.
Paragraph 240 addresses the Speaker's role in adjudicating the substance and form of bills, stating:
The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.
At the time, I asserted that the Speaker had no role in the matter and that this adjudication properly belonged to the Senate as a whole. On November 23, 1995, His Honour ruled on the privilege, stating that he found nothing improper in the actions of Senators Kinsella, Ottenheimer and Lynch-Staunton, and a few days later, on November 28, 1995, ruled on the point of order in Senator Kinsella's favour, stating that a bill of pains, Bill S-11, was out of order in the Senate.
Honourable senators, I believe that Bill C-28, the Pearson airport bill is a bill of pains. A bill of pains extinguishes rights at common law and equity, ousts ordinary court proceedings, supersedes and supplants the courts, and corrects a particular problem by legislating in a particular case, by imposing Parliament's remedy for any wrongdoing or misdemeanour. A "wrongdoing" is, naturally, that which Parliament defines as a wrongdoing.
Honourable senators, Bill C-28 is an extraordinary measure which invokes Parliament's judicial powers in legislative form. Clause 3 of Bill C-28 sets aside the agreements, declaring that they have no legal effect; clause 4 extinguishes all undertakings, obligations, liabilities, estates, rights, titles, and interests arising from the agreements; clause 7 extinguishes rights at common law to sue in tort or in contract; and clause 8 extinguishes any actions and lawsuits currently before the courts. Finally, clause 9 denies any entitlement to compensation from Her Majesty. Bill C-28 demonstrates Blackstone's phrase that Parliament may swallow up the courts, its processes, the common law, the ordinary proceedings, and impose the law of Parliament in their place. Parliament's exercise of this extraordinary power is a question of Parliament's will and pleasure.
Honourable senators, Bill C-28 is a sound and worthy piece of legislation, and should pass. The Pearson airport agreements were signed in the dying days of the mandate of Prime Minister Campbell's government, days before the federal general election of October 25, 1993.
Senator Berntson: Speak to the point.
Senator Cools: These agreements attracted much attention and election promises. The Honourable Jean Chrétien, then Leader of the Opposition, expecting to win the election, specifically informed and warned all interested parties that the new government would not honour any Pearson agreements or contracts executed on the eve of the election. The outgoing Campbell government signed the contracts in defiance of Mr. Chrétien and the expected electorate's judgment.
Senator Pitfield, during Senate debate on July 7, 1994, on Bill C-22, the predecessor of Bill C-28, noted its special form, saying that Bill C-22 was:
...a bill that specifically deprives access to the court in a particular case only.
On the issue of wrongdoing, he said:
...it seems to me there is a scheme of scandal or immorality which lies under the surface of Bill C-22...
On the use of Parliament's judicial powers, Senator Pitfield added:
...the courts were sometimes ousted from an area by a rough and ready justice such as Bill C-22 represents.
The rough and ready justice of Parliament to oust all other authority is the unique result of a bill of pains. Bill C-28 corrects a mischief, a misdemeanour of the previous government and its contractors. It ousts common-law rights and the courts and imposes Parliament's will.
Honourable senators, the execution of these contracts was a mischief, a misconduct, a wrongdoing. Whether that mischief is a codified offence or is a breach of political convention is irrelevant. It was a misconduct. Bill C-28 corrects this misconduct and declares in statute that the execution of these contracts by the parties was a mischief and substitutes Parliament's remedy.
On October 19, when Senator Kinsella raised his point of order insisting that Parliament could not pass Bill S-11, I strenuously upheld Parliament's power to legislate bills of pains, and I cited the authorities. I asserted that the high court of Parliament, as the grand inquest of the nation, is the supreme authority of Canada and armed with the punitive, inquisitorial and judicial instruments necessary to its function of governance. Though such powers and such bills are rarely used, and though some with adverse interests, such as the opposition, assert that Parliament's powers in respect of bills of pains are obsolete, Parliament retains these powers. I cited Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 21st Edition, upholding these powers, saying:
...these powers have never been formally abolished.
Parliamentary authority, Sir William R. Anson, in The Law and Custom of the Constitution, Volume 1: Parliament, notes Parliament's powers in respect of bills of pains, saying:
I pass over those acts, in form legislative, in substance judicial, styled acts of attainder or of pains and penalties. An Act of Parliament can, as we know, do anything.
I will repeat that honourable senators.
An Act of Parliament can, as we know, do anything. It can make that an offence which was not, when committed, an offence against any existing law; it can assign to the offender, so created, a punishment which no Court could inflict. The procedure is legislative and, as such, differs in no respect from legislation on any other matter of public importance.
Canada's own Parliamentary authority, Alpheus Todd, in The Practice and Privileges of the Two Houses of Parliament, agrees that:
By a Bill of Attainder, or of Pains and Penalties, any one may be attainted of treason or felony, and pains and penalties inflicted beyond, or contrary to, the existing law.
But where the remedy by Impeachment is available, such bills will be regarded with jealousy, on account of the dangerous license which the Houses of Parliament have permitted themselves, from the mixed and indefinite nature of their legislative and judicial capacities, when united: and in their being ex post facto laws, made for retrospective purposes.
Bills of pains are used for retrospective purposes and are guarded jealously. Parliament's powers of impeachment, acts of attainder and acts of pains are the highest forms of Parliamentary judicature. They embody the united judgment of the Crown, the Senate and the House of Commons.
Honourable senators, the government had the choice of impeaching former Prime Minister Kim Campbell and her ministry or proceeding by a bill of pains. For Parliamentary and political purposes, Prime Minister Chrétien opted for a bill of pains. Bill C-28 is clean and surgical and results in less incriminations than impeachment of Ms Campbell and her ministry.
Honourable senators, section 18 of the British North America Act, 1867, is the statutory instrument that imported into Canada the ancient customs, practices and usages of the law of Parliament of the United Kingdom. The problem before us is not Parliament's right to pass a bill of pains. The problem is His Honour's ruling of November 28, 1995, that Parliament cannot pass a bill of pains, and its contradiction -
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The Hon. the Speaker: Honourable Senator Cools, I do not wish to interrupt you, but I must remind you that Speaker's rulings are subject to appeal but not subject to debate.
Senator Cools: I was about to praise Your Honour.
I do not believe that His Honour intended his ruling to impede Bill C-28 or the Parliament of Canada, nor that he intended to place Bill C-28 at risk. In his ruling of May 8, 1996, responding to Senator Lynch-Staunton's point of order requesting the halt of proceedings on Bill C-28, the Speaker upheld the powers of the Senate.
The Hon. the Speaker: Honourable Senator Cools, I regret to interrupt you, but I must repeat the comment I just made. Speaker's rulings are subject to appeal but not to debate - not because it is my ruling, but because that is the rule of the Senate.
Senator Cools: I will quote from Beauchesne again, which states that:
The Speaker will not give a decision upon a constitutional question nor decide a question of law, though the same may be raised on a point of order or privilege.
I can quote the Speaker's ruling of May 8, 1996, where he stated that the matters raised by Senator Lynch-Staunton and the opposition were:
...matters for debate and for the consideration of all senators. They are not issues on which I can rule as Speaker of this house.
On appeal by Senator Kinsella, this ruling was adopted by a vote of the whole Senate. There are now two conflicting rulings that have been made in this chamber. There is a ruling which says that Bill C-28 is out of order, and there is a ruling which says that Bill C-28 is in order. My position is very clear; namely, that Bill C-28 is in order.
The real issue before us is the issue of the limits of the Speaker's power versus the powers of the Parliament of Canada. The Parliament of Canada is Her Majesty, the Senate and the House of Commons. Honourable senators, consideration of bills and the powers of Parliament are questions that properly belong to the houses of Parliament as a whole. In order to clarify these questions of Parliament's powers regarding the passage of bills in general, particularly bills of pains and penalties, I do believe that the matter belongs here in the chamber between us. We have been told that matters of this nature should not be handed over to the Speaker.
This is a matter for consideration. The fact of the matter is that the opposition simply does not want Bill C-28 to pass, and we want it to pass. I would suggest, honourable senators, that we, as senators, resolve these matters and leave His Honour out of it.
Hon. Allan J. MacEachen: Honourable senators, I wish to make two points which I hope will facilitate the business of the Senate in accordance with the Rules of the Senate.
The first point I want to make is with respect to the argument of Senator Phillips and whether his point of order is valid on the basis of his argumentation.
As I understood Senator Phillips - and as I tried to listen to him amidst considerable distraction - I thought I heard him complaining about the bill, and referring to various clauses in the bill. Is that right?
Senator Phillips: I listed those that support my claim of pain and penalty. However, I did not describe them as bonuses.
Senator MacEachen: I heard the senator correctly, then, when he argued that there were certain clauses in the bill which he found repugnant. In reply to that, I wish to inform the honourable senator that there is a remedy for repugnant clauses, and they can be dealt with at a certain stage as the bill proceeds through the Senate. If the bill gets second reading, it goes to a committee. These clauses are then before that committee. They can be examined and dealt with at that stage.
If Senator Phillips finds that any of these clauses is a clause of pain and penalty, then he can move an amendment. He has a remedy available to him. Or if, indeed, he finds it so totally repugnant, he can defeat it. However, at this stage, it is premature to raise a point of order on a matter which can be dealt with directly at a later stage in the process. That is why Beauchesne deals with the matter in one of his citations.
If one takes a single citation in isolation, at times one wonders why the citation ever appeared there. However, if one considers Parliament and all its parts together, then one gets a better insight.
Citation 322, Beauchesne's 6th Edition, states:
When a bill is under consideration, points of order should not be raised on matters which could be disposed of by moving amendments.
Senator Phillips is raising a point of order on a matter that could be dealt with through amendments and discussion in committee. Therefore, if it is a bill of pains and penalties, that pain and penalty must be found in clauses. It does not exist in the atmosphere; it is in concrete form in the bill. Senator Phillips can have a field day in the committee, moving amendments, defeating clauses, and removing the pain and penalty. His objections to the bill can be dealt with in the committee.
His Honour should take under consideration the citation, which I will again read as follows:
322. When a bill is under consideration, points of order should not be raised on matters which could be disposed of by moving amendments.
That is pretty solid. That is Beauchesne, which His Honour used extensively in his ruling today. Is it an authority or is it not? Is it to be observed or is it to be discarded? Beauchesne tells us: Deal with this in committee. It is not a point of order. I agree with him.
I also deal with the general point that Senator Graham raised, namely, is it legitimate to raise points of order today, next week, or the following week? Only three weeks after the bill was called, we are addressing points of order. That is in total disregard of the citations which His Honour quoted today, for example, that:
Any member is entitled, even bound, to bring to His Honour's immediate notice any instance of a breach of order.
This bill was called on April 23. It is now May 14, and we have a point of order. Where is the citation?
Senator Kinsella: What is your point?
Senator MacEachen: My point, Senator Kinsella, is that there is a time when the rules and the citations must be observed, and there is a cut-off point. That cut-off point has more than passed.
Senator Lynch-Staunton: Where?
Senator MacEachen: Because of the citations. Any point of order against procedure must be raised promptly, with the widest possible definition given to the word "promptly." May 14 and April 23 is not "promptly," as contained in the citation.
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I say today is the cut-off point, Your Honour, or this place is a travesty. If the members of the opposition have further points of order, let us have them today, all of them. They cannot store them up and come next week with another point of order. Points of order are supposed to be raised promptly. A member has a duty and is bound to bring to the Speaker's immediate attention any instance of a breach of order. If they have them in their minds today, they are obligated to mention them.
I think the cut-off point has come. If we are to observe the rules, it makes no sense to continue this procedure indefinitely. Surely, given that this bill was introduced on April 23 and is still before the Senate on May 14, it is reasonable to say to His Honour and to honourable senators that all points of order should be put on the table today and dealt with today. Otherwise, there is no sense in having any parliamentary rule or procedure nor any point in having Beauchesne on the table. If Beauchesne is not to be respected, at least in a broad sense, then we ought not to have it on the table.
I would never do what happened in the House of Commons and throw that green book away, never, because I respect Beauchesne's distillation of the rules of Parliament. Beauchesne, supported by His Honour a few moments ago in his ruling, tells us that any member is entitled, even bound, to bring points of order to the Speaker's immediate notice.
Senator Berntson: We will.
Senator MacEachen: Raising a point of order on April 23 and, maybe April 24, would be immediate, perhaps even April 25. Raising a point of order on April 28 would be stretching it. To say that raising a point of order on May 14 is "immediate attention" does not hold up. To say that a point of order must be raised promptly and then allow three weeks to elapse is a flagrant breach, not only of the word, but of the spirit.
Honourable senators, I am not being unduly rigorous in applying the rule. I am simply saying that three weeks after the bill is called, surely we are entitled to ask and the Speaker is entitled to say, "Please put all your points of order on the table today and let us hear them today." If honourable senators opposite have any more, put them on the table. We will deal with them today. Do not let the house adjourn only to send your researchers to their garrets to examine the books to see if any other possible point of order can be pulled out of the stratosphere and raised tomorrow. The time for playing games is over, and I would like the Speaker to acknowledge that fact.
Some Hon. Senators: Hear, hear!
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I find it illuminating that the only arguments of substance which have been brought against Senator Phillips' point of order have nothing to do with his point of order but are really expressions of frustration and the feeling that we are unduly delaying the second reading of a bill to which we obviously object. Let me make some corrections as to what we are trying to do.
First, we are not trying to stifle Senator Kirby's right to speak on this bill. We are simply urging the honourable senator and his colleagues to realize what will happen if they do embark on second reading, not to mention the implications it will have for this house.
Senator MacEachen makes the point that three weeks, a month or six weeks have gone by and we should stop playing games. However the clock may have ticked, we are at the same stage with this bill as we were when it was first called for second reading. The procedure is the same, and what we are doing is perfectly correct in procedural terms. It may be annoying and frustrating to friends opposite who want to get on with the bill, but this is what they have to put up with on occasion.
Since we are quoting the Speaker's ruling, let us quote all of it, particularly the pertinent part regarding when a point of order can be raised. The Speaker also said:
Although Senator Kinsella linked his point of order to the message which was received some days ago, it involves more than just the message itself. Moreover, Senator Lynch-Staunton is right in observing that the Rules of the Senate limit the opportunity to raise a procedural objection when a bill is introduced and read the first time.
That is what Senator MacEachen had urged us to do. When we raised the first point of order and the second point of order, he indicated that we should have raised them earlier and that, therefore, we were out of order for not having raised them at the time the disorder was perceived. The Speaker ruled on the point that I made, which was supported by Senator Phillips, by saying, in part:
Accordingly, I find that Senator Kinsella has raised his point of order within an appropriate time.
From a procedural point of view, we are still at the same time as we were when the bill was first called for second reading. The calendar has moved, but procedurally we have not.
Senator MacEachen: There is no relationship between the two.
Senator Lynch-Staunton: We will not burden the Speaker with a whole series of points of order. Out of courtesy to the Speaker -
Senator MacEachen: We want all of them today.
Senator Lynch-Staunton: - we feel it would be unfair to burden him with 12 or 15 points of order, which we could easily do.
Senator MacEachen: He is well paid. Bring them on.
Senator Lynch-Staunton: Out of courtesy to His Honour and out of courtesy to the house, we feel that debating them one by one is the best way to go.
Your Honour, I am sure that your decision on this point of order will be easier than on the other two, since no arguments have been brought forward against the point of order, only against the fact that it was raised.
Senator Kinsella: Honourable senators, Senator MacEachen has drawn our attention to the parliamentary procedural literature.
Senator Austin: Senator Kinsella has already spoken on this point of order.
Senator Kinsella: We have the ruling of November 28, 1995, accepted by this chamber. That is the precedent from which we must take guidance. The parliamentary procedural literature is helpful, but it is not the principal text for us. The principal text in matters of procedure is the Rules of the Senate and decisions and precedents established by the Senate.
Senator MacEachen: I agree with the honourable senator. We have had the argument. Let us have a ruling today. If honourable senators have more points of order, let us have them today. Let us observe the basic quotations that have been used by the Speaker today.
Senator Phillips: Honourable senators, perhaps I might have the courtesy of replying to some of the remarks which have been made. I notice that Senator Graham, while objecting to the time lost, had his speech prepared, and it was a lengthy one at that.
Senator Berntson: And well delivered.
Senator Phillips: However, it did not apply to the point of order.
Senator Lynch-Staunton: It was completely off.
Senator Phillips: I can see no excuse for the amount of time taken by Senator Graham. I did not take one quarter of that time in raising my point of order. I deliberately tried to be brief, and, for me, that is difficult.
He then wanted to know why all the points of order were not on the floor at one time. Senator MacEachen raised that point as well. Senator Lynch-Staunton has replied to that. If we had more than one point of order on the floor at one time, I can see Senator Graham and Senator MacEachen objecting to more than one point of order being on the floor at one time.
I wish to refer to several things said by Senator MacEachen, and then I will refer briefly to the remarks made by Senator Cools.
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Senator MacEachen said that there was a relief to the clauses to which I object. I must dispute that, honourable senators. In the last session of Parliament, the Senate found many of these clauses repugnant. They were amended because they were repugnant, and they were sent back to the House of Commons because they were repugnant; and what did it accomplish? The bill came back here in the same form. There is no relief provided as suggested by Senator MacEachen.
It is said that we must have a decision today because a couple of weeks have passed. Surely the honourable senator remembers the GST debate. After he returned from Brussels, he kept the debate going for a considerable time. I would like the honourable senator to give that some consideration.
Senator MacEachen: It was not a point of order, though.
Senator Phillips: It was not a point of order. It was so badly out of order that I can appreciate the fact that he does not like to be reminded of it.
Senator Cools has obviously done a lot of research on this subject. I have no wish to insult the honourable senator. However, I would say that her arguments are every bit as bad as those presented by Senator Graham and Senator MacEachen.
I particularly disagree with Senator Cools on her remarks about the powers of Parliament. If I understood the honourable senator correctly, she said that Parliament has the authority to swallow up the courts. I do not think that applies in a democracy. Any government, particularly one with a majority such as this one has, could swallow up the courts. Imagine the public outcry if either chamber of Parliament attempted to swallow up the Supreme Court of Canada!
Honourable senators opposite are complaining about the points of order raised. In the last part of his ruling of November 28, 1995, the Speaker said:
In the absence of any precedents or of substantial evidence to the contrary, I feel bound to take note of the provisions of rule 1 of the Rules of the Senate, which stipulates:
In all cases not provided for in these rules, the customs, usages, forms and proceedings of either House of the Parliament of Canada shall...be followed...
Accordingly, I accept the decision that was made by the Speaker of the House of Commons in 1984 and rule that, for similar reasons, Bill S-11 is out of order.
This is the interesting part, honourable senators:
In conclusion, I might add that there are other means available to Senator Cools to respond to public opinion brought to the senator's attention, and she may wish to consider them.
I point out to the government that there are other options available. I hope honourable senators opposite will be honest, and have enough integrity to consider those other options that are available to them. Let us not proceed with a bill which is unprecedented in Canadian history.
Senator Cools: Honourable senators -
The Hon. the Speaker: Senator Stewart?
Senator Cools: Your Honour does it all the time. This is the third time today you have done it.
The Hon. the Speaker: I beg your pardon?
Senator Cools: You do it consistently.
Hon. John B. Stewart: Honourable senators, Senator Phillips has asserted that this bill is a bill of pains and penalties. A bill of pains and penalties is a bill of punishment.
Senator Lynch-Staunton: That is what this is.
Senator Stewart: Such a bill was enacted by Parliament for the purpose of inflicting punishment for a misdemeanour or offence, historically generally of a political nature. It imposed punishment in particular instances not addressed by the law.
Honourable senators, that is not the nature of this bill. It is true that some of the contractors in the bill will not enjoy the benefits of their contract; but there is no suggestion that their deprivation is a punishment. The deprivation, such as it is, is a consequence of public policy. That the bill is not intended to inflict punishment is made clear by the fact that the contractors will be recompensed for the expenses which they incurred in the preparation of their tendered bids.
That is one point; this is not a bill of pains and penalties, and arguments to the effect that it is are, in substance, irrelevant.
There is another point, honourable senators, a point which Senator Phillips has already conceded. He has said that certain of the provisions of the bill now before the Senate were in the previous bill, and that they were objected to in committee. How would they have ever got into committee if the Senate had thought that the bill was out of order in the previous session? He cannot have it both ways. If those clauses are clauses of pains and penalties in the present bill, they were clauses of pains and penalties in the bill in the previous session of Parliament. The honourable senator cannot have it both ways.
I would argue that, as I said earlier, these are not clauses of pains and penalties. They were in order in the previous session and they are in order now. They are susceptible to debate and amendment. If a bill passes on principle, it ought to be sent to committee and, as Senator MacEachen has said, Senator Phillips can entertain himself by proposing amendments. I am sure that they will be considered most seriously.
Senator Cools: Honourable senators, I should like to apologize for showing my dissatisfaction. However, I must tell honourable senators that it gets a little tiresome, when I am on my feet speaking, that His Honour cuts me off. He does it repeatedly; habitually.
The Hon. the Speaker: Honourable Senator Cools, I regret to interrupt you. The only time I interrupt you, Senator Cools, is when you go over time, or when you are contravening the rules of the Senate. That is the procedure I intend to follow with all honourable senators. I do not have special rules for certain senators.
Senator Cools: Honourable senators, I was not asking for any special rules. I was merely apologizing to my colleagues, saying that I find it difficult when I am cut off, or when I rise to my feet and other senators are acknowledged ahead of me. It is a bit difficult, and a bit trying. However, that is par for the course in this chamber.
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I would like to respond to Senator Phillips. Senator Phillips mentioned the Supreme Court of Canada, and made a statement to the effect that there would be a public outcry on the question of Parliament's speaking for the population of Canada and basically swallowing up the courts.
I would point out to the Honourable Senator Phillips that the public outcry in this country was in favour of the cancellation of the Pearson airport agreements. The public outcry in this country was heard during the election campaign, when the then Leader of the Opposition, Mr. Chrétien, was given a clear mandate.
Senator Lynch-Staunton: Tell us about the GST.
Senator Cools: We can come to that at another time.
However, the clear expression of public discontent was on the signature and the execution of those contracts. I would say to the Honourable Senator Phillips that the Government of Canada, Mr. Chrétien and Bill C-28 has the full support of the population of this country.
Second, Senator Phillips spoke about the Supreme Court of Canada. The Supreme Court of Canada, as founded in the Supreme Court of Canada Act, is a creature, a creation of the Parliament of Canada.
Senator Lynch-Staunton: It is a creature of the Constitution of Canada.
Senator Cools: The Constitution of Canada only allows Parliament to pass an act for a court of higher appeal. The Supreme Court of Canada has no constitutional existence other than that. The Supreme Court of Canada Act is an act of this Parliament of Canada. There is no doubt about that.
Senator Lynch-Staunton: A court is a creature of the Constitution.
Senator Cools: I am trying to be mindful of the issues raised by Senator Phillips.
On the question of customs and usages, the ability of Parliament to exercise these powers is precisely in keeping with the ancient customs and usages of Parliament which were imported into Canada. It is in these old customs and usages that such powers are found.
Finally, in defence of the right of the government to pass such initiatives, I should like to say - because Senator Lynch-Staunton and others keep making reference to the cases currently before the courts - that I have found those court cases on the Pearson agreements to be troublesome. I say to the senators opposite that the courts of this land have an obligation at law to take judicial notice of what is going on in this chamber, and indeed, in Parliament as a whole.
Honourable senators, members of the opposition assert that they can raise a point of order whenever they feel like it, whether or not there is a question before the house. The opposition has been doing this successfully for quite some time. Perhaps His Honour could address that matter as well.
The bill is in order, honourable senators. I urge all honourable senators to vote to bring an end to this delay.
The Hon. the Speaker: Honourable senators, I have listened carefully to all of the presentations made by honourable senators. I want to thank them. I particularly thank those who said that they were doing this for my benefit. I appreciate that greatly.
I am also at the point where I could make my ruling, but I want to check a couple of very specific legal points, and some previous statements. I would ask the Honourable Senator Corbin to take the chair. I will ask two of my officials to accompany me. I hope to be able to return and make a ruling before too long.
Business of the Senate
Point of Order
Hon. J. Michael Forrestall: Honourable senators, I rise on a point of order. I request that the Deputy Leader of the Government give some consideration to the following: There is a private bill which was slated to have been dealt with by the standing committee earlier this afternoon. A number of witnesses have come from North Bay, and they are anxious to deal with the matter tonight.I would suggest that if we proceed at this time with Bill C-14, the Canada Transportation bill, that will keep us occupied until we adjourn for the very matter which has kept us here till now, and we will not have had the opportunity, in all likelihood, to sit as a committee and deal with the private bill. We are prepared to resume where we are tomorrow morning or tomorrow afternoon.
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I know that we were prepared to proceed with Bill C-14 last Thursday, but it was adjourned to allow Senators Spivak and Forrestall to speak to it because, through no fault of their own, they were not able to be present on Thursday. We agreed to stand the order until today.
If we again stand the motion for third reading, this time to facilitate the hearing of witnesses in committee with respect to Senator Kelleher's Bill S-7, then I would hope that we could have an understanding on both sides that we will proceed with third reading tomorrow, and, we hope, dispose of the legislation before we adjourn this week.
Senator Forrestall: Honourable senators, I thank the Deputy Leader of the Government. Of course we can give that undertaking in the most general way. Five amendments have been proposed. I can suggest to you that we will not be preoccupied with delaying the bill. After all, it is a bill which we, on this side, support. However, we do have some observations to make with respect to it.
I cannot give the deputy leader an absolute undertaking. I am just one senator.
Senator Graham: In that case, honourable senators, we could proceed with the Order Paper with that understanding.
There has been agreement between the leadership on both sides that, when we finish the Order Paper this afternoon, we would adjourn during pleasure to the call of the chair in order to receive bills from the other place, which I understand may be passed later this afternoon.
I would anticipate that we might have those bills from the other place for first reading at approximately 6:30 p.m. In that circumstance, we would need to agree not to see the clock at six o'clock.
The Hon. the Acting Speaker: Is there an agreement to that proposal, honourable senators?
Hon. Senators: Agreed.
Criminal Code
Bill to Amend-Second Reading-Order Stands
On the Order:Resuming debate on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Haidasz, P.C., for the second reading of Bill S-4, to amend the Criminal Code (abuse of process).-(Honourable Senator Kinsella).
Hon. Noël A. Kinsella: Stand.
Hon. William M. Kelly: Honourable senators, may I make a comment? I stand to be corrected, but it was my understanding that, in my absence, Senator Kinsella meant to adjourn this item in my name. If that is correct, I would like the Order to stand in my name, and be recorded as such.
The Hon. the Acting Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Order stands.
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Canadian Association of Former Parliamentarians Bill
Second Reading
On the Order:Resuming debate on the motion of the Honourable Senator Maheu, seconded by the Honourable Senator Gigantès, for the second reading of Bill C-275, An Act establishing the Canadian Association of Former Parliamentarians.-(Honourable Senator Kinsella).
Hon. Noël A. Kinsella: Honourable senators, Bill C-275 was explained by our colleague Senator Maheu at the commencement of our second reading debate. I have no difficulty with the substance of this bill, but I have some concerns that I should like to raise, because they are concerns to which all honourable senators should be alerted.
Senator Kenny introduced a bill in the Senate dealing with alternative fuels, as senators will recall. That bill was dealt with expeditiously by this chamber, and a message was sent to the other place. If honourable senators are not aware of what happens to bills initiated in the Senate, and sent to the other place, perhaps they might want to take note of what I am about to say.
Unlike the expeditious manner in which this house of Parliament deals with Private Members' Bills commenced in the House of Commons, the House of Commons deals in a very different manner with Private Bills initiated by honourable senators. In the Senate, such bills go through all three phases and committee study before they are adopted, and a message is then sent to the House of Commons. Unfortunately - and this is my argument - a bill initiated by a senator and passed by the Senate of Canada receives no special treatment at all when it arrives in the House of Commons. It is dealt with in the same way as any Private Members' Bill under the rules of the other place.
Honourable senators, it is time for this house to focus its attention on that process. It is one thing for an individual member of the House of Commons to bring forward a bill. That bill then goes into the lottery system. It may be drawn or it may not be drawn. It seems to me that it should be a different process when one-half of the Parliament of Canada has adopted a legislative measure and that it should not be given that same kind of treatment - that is, thrown into the pool. Once a Private Bill from the Senate is given first reading in the other place, it is thrown into the pool, where it has the same chance of being drawn as any other bill.
I do not want to hold up this particular bill, as I have no difficulty with the substance, but I should like to use it during the committee stage as an opportunity to delve into that process. Perhaps Senator Maheu, who has extensive recent experience in the other place, could give us some guidance with respect to this point. I think my diagnosis of the problem is exactly what was experienced by Senator Kenny not too long ago. We also have a bill before the House of Commons right now, Bill S-2. I hope that the committee to which this bill is referred will explore a method, means, or vehicle by which we might get some parity with Private Members' Bills that are passed or adopted by this chamber.
Hon. Colin Kenny: Honourable senators, I have listened to Senator Kinsella's comments with great interest. He has accurately portrayed the situation that occurs with a Private Bill initiated in the Senate. It is a demeaning process to go through that lottery and to appear before a very small committee to help it decide whether or not your bill has life. We should find some mechanism to informally explore the process with the other place.
When I discussed my bill with members of the other place, they were almost apologetic about having to go through the process but they put me through it in any event. There may be some willingness - that is, if we can find the right vehicle to encourage them - to reconsider the way in which they handle their business. Perhaps the best way is to point out how expeditiously we handle bills sent here.
The Hon. the Acting Speaker: I am prepared to recognize Senator Maheu, but I should like to remind the house that if she speaks now, her remarks will have the effect of closing the debate on second reading.
Hon. Sharon Carstairs: Honourable senators, I anticipate that Bill C-275 will be referred to the Standing Senate Committee on Legal and Constitutional Affairs. I can assure you that we will deal with the question raised, although it may not have specific relevance to the bill.
Hon. Shirley Maheu: Honourable senators, this particular bill was initiated by the Speaker of the House of Commons. I have spoken with him on the subject, and I understand that tomorrow one of the clerks of the House will appear before the committee, if we refer the bill tonight. He or she will be able to explain the procedure to the committee.
Motion agreed to and bill read second time.
Referred to Committee
The Hon. the Acting Speaker: Honourable senators, when shall this bill be read the third time?On motion of Senator Maheu, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.
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Child Abuse and Neglect
Death of Matthew Vaudreuil-Inquiry-Debate Continued
On the Order:Resuming debate on the inquiry of the Honourable Senator Cools, calling the attention of the Senate to the child abuse and neglect (CAN) death of 5 year old Matthew Vaudreuil at the hands of his mother, Verna Vaudreuil, in July 1992; and the Inquiry by Judge Thomas J. Gove into child protection services in British Columbia as they relate to the terrible child abuse and neglect (CAN) death of Matthew Vaudreuil; and Judge Gove's report entitled: The Report of the Gove Inquiry into Child Protection in British Columbia, November 1995.-(Honourable Senator Berntson).
Hon. Eric Arthur Berntson (Deputy Leader of the Opposition): Honourable senators, I defer to Senator Carstairs on this item.
Hon. Sharon Carstairs: Honourable senators, I rise today to contribute to the inquiry begun by Senator Cools concerning the death of Matthew Vaudreuil and the subsequent Gove inquiry in British Columbia as to why the child protection system failed five-year-old Matthew.
As Senator Cools outlined in her speech, Matthew had a long history with the Ministry of Child and Family Services in British Columbia. In fact, not including supervisors, 21 - and by some accounts 25 - social workers had been responsible for this file. There were 60 individual reports made about this child's well-being and safety. Yet, despite the 60 reports, on July 9, 1992, Matthew died of asphyxiation caused by his mother, Verna Vaudreuil, holding her hand over his mouth.
As Senator Cools clearly pointed out, one of the failures of the British Columbia Child and Family Services in the case of Matthew was a failure to recognize the needs of the child. Instead, social workers put the needs of the mother ahead of the needs of Matthew. I wish I could say that that is a unique situation in Canada but, regrettably, it is not.
However, and unfortunately, this is not the only way that the child protection system failed Matthew. Judge Gove, in his Report of the Gove Inquiry into Child Protection, stated:
Investigation was one of the most serious shortcomings in Matthew's story.
He went on to show that investigating social workers were untrained and inexperienced. Social workers, for some reason or other, did not at any time interview Matthew. It is true that he was only five years old. However, you can talk to a five-year old. You can ask a five-year old what his experiences are. You can ask a five-year old if he is being adequately fed. You do not use words like "nutrition." You say, "Matthew, what did you have to eat this morning?" Yet none of them at any time ever chose to ask Matthew how he was being cared for.
Judge Gove stated in his report:
... background history, including the ministry's own records, does not seem to be part of an investigation. Of the 25 ministry social workers and district supervisors involved with Matthew and his mother who testified before the Inquiry, not one consulted Verna Vaudreuil's Child-in-Care file, or carefully reviewed Matthew's file.
Not one.
He also said:
Each new intake started afresh ...
- without the benefit of a case history, which would have shown, had they done it, a consistent pattern of abuse and neglect.
Judge Gove went on to say:
If they had had access to a computerized database containing detailed information about previous investigations, they could have made a much more prompt and professional risk assessment.
All of this information could have had an impact on the future of Matthew. He might have been apprehended. He might have been put into foster care. He might have been put into a situation in which there was long-term, intensive home care support if the decision had been made to leave him in the home. None of these things happened.
One of the more important recommendations of the Gove inquiry was:
The Ministry should abandon the checklist intake form and instead require intake social workers to make professional judgements ...
Provided, of course, that they are professionals.
... about the investigations and assessments they complete, which should be summarized on a computerized information system.
The government of British Columbia has responded to the case of Matthew. They have, in fact, admitted that it was a case not well handled. They have tried to put into place new systems that hopefully will prevent a future Matthew from falling through those cracks.
I should like to speak this afternoon about the need for a national child abuse registry in this country. This is not a new concept. The idea was recommended by the Standing Committee on Justice and the Solicitor General. The Panel on Violence Against Women report, and others, have all talked about the need to establish a national registry.
One of the major obstacles to creating such a registry is that every province deals with such matters somewhat differently. Some have registries; others do not. Those that do have them do not have consistency, one with the other. We know that children in this country, as guaranteed by the Constitution, can move from province to province. Unfortunately we know that when an investigation is instigated in one province, the family often picks up and moves to another province.
We also know that there are important questions to be asked about any national abuse registry system that could be developed. This is not a simple concept. Protections need to be in place for those who are innocent and are charged improperly with abuse, just as protections must exist for the innocent children who do not ask to be abused.
Honourable senators, a computer system would need to be set up in such a way that provinces and territories could interface with one another. Such a registry certainly would help provincial authorities to check on a family or on an individual. A national registry would be required to be updated constantly so that when a social worker input information, that information would immediately come up on a national registry.
There are, in fact, provincial registries in the provinces of Ontario, Nova Scotia, and Manitoba. The one with which I am most familiar is the one in Manitoba. Manitoba has, in fact, two separate registries: a child victim registry for tracking high-risk children and their families, and an abuser registry for screening potential employees who would be in positions of trust with children. Cases in which the offender is not considered to be in a position of trust are considered third party assaults and are not included in the registry.
The tracking of cases involving long-term child sex offenders is currently being explored by the Manitoba Department of Justice. The basis for entering names into the registry include, first, that a criminal conviction for child abuse has, in fact, been deemed. Another is that the court has found that a child is in need of protection on the basis of abuse, and that has usually occurred in a family court.
Another basis is that a child abuse committee is of the opinion that abuse occurred, based on the opinion of a duly qualified medical practitioner, a psychologist, or by other supporting evidence. In all cases under this last category, the department must notify all parties that their names will be placed on the registry, and, unless they file an objection, that takes place 60 days later.
Appeals are heard by the registry review committee. All information in both registries is confidential and can only be accessed by permission of the director of the registry. Mandated agencies may apply to the director and be given access to information in both registries if it is shown that the information is required to investigate whether a child is in need of protection.
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However, it can also be used to assess foster parents to ensure that those people entrusted with children who have already been placed in danger are legitimate. Homemakers can be investigated, as can adoptive parents. Parent aids, or persons applying for those positions, can be investigated. Employers, other than mandated agencies, only have access to the abuser registry to determine whether a person's name is located on that registry.
The system in Ontario is somewhat different. That, of course, is part of the difficulty in ever attempting any national child abuse registry. Unless the provinces were in total agreement that they would use the same system, it would not be a valid exercise. At the present time, there is no sharing of information whatsoever. Not only are there situations such as the one in British Columbia, where they do not share information within the province - which provinces are trying to correct - we know that there is no sharing of information among provinces. The problem lies in the development of national standards regarding child abuse registries and, it is to be hoped, the eventual establishment of a national abuse registry.
Let me repeat, honourable senators, that this is not an easily or readily achievable goal. However, it is a concept which is worthy of our time and our attention, and I commend it to all honourable senators.
On motion of Senator Cools, debate adjourned.
Pearson International Airport Agreements Bill
Second Reading-Point of Order-Speaker's Ruling-order stands
On the Order:Second Reading of Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.-(Speaker's Ruling)
The Hon. the Speaker: If it is your wish, honourable senators, I am prepared to give my ruling on Senator Phillips' point of order.
Hon. Senators: Agreed.
The Hon. the Speaker: Honourable senators, the point of order raised by the Honourable Senator Phillips was that this bill was a bill of pains and penalties. I searched carefully to determine what is exactly a bill of pains and penalties, and I must say that the textbooks did not have much information on this matter. Therefore, I had to refer to dictionaries.
In quoting from Jowitt's Dictionary of English Law, going to "Bill of pains and penalties," we read:
Bill of pains and penalties, a bill introduced, generally in the House of Lords but sometimes in the House of Commons, for the punishment of a particular person without trial in the ordinary way. A bill of attainder (q.v.) always imposed the penalty of death: a bill of pains and penalties inflicted some lesser penalty.
Later, in the same dictionary but under "Pains and Penalties, Bills of," we read:
Acts of Parliament to condemn particular persons for treason or felony, or to inflict pains and penalties beyond or contrary to the common law, to serve a special purpose.
Honourable senators, I find that this bill does not fall under this category of inflicting penalty of death, or some lesser penalty. Second, I would point out that a reference in Erskine May at page 68 states:
As in the case of the Lords, the Commons' constitutional role in passing Acts of attainder and of pains and penalties, and in prosecuting offences before the Lords in impeachments, is now of historical rather than current interest. But these powers have never been formally abolished.
Honourable senators, we find that they have now been abolished in the British practice. We find that they do not apply to this bill, even in the definition in its original state.
Coming back to our own book, Beauchesne, at page 191, citation 623, it is clear that:
According to Canadian Standing Orders and practice, there are only two kinds of bills - public and private.
I understand perfectly that there are different points of view regarding this bill. I need only to listen to the debate to know that it is highly controversial. However, those points of view are for the Senate to decide and, if the bill is in committee, for the committee to decide, not for the Speaker to decide. I declare that this bill is a public bill, and should be proceeded with.
Honourable senators, it is moved by the Honourable Senator Kirby, seconded by the Honourable Senator Davey, that Bill C-28 be read the second time.
Hon. John Lynch-Staunton (Leader of the Opposition): We are ready.
Business of the Senate
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, perhaps we could delay for a few minutes.Hon. John Lynch-Staunton (Leader of the Opposition): We heard Senator MacEachen. You must not allow delay. Stand it and carry on.
Senator Graham: We have a motion standing in the name of Senator Murray. Perhaps we could deal with that at this time.
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Cape Breton Development Corporation
Special Committee Authorized to Meet During Sitting of the Senate
Hon. Lowell Murray, pursuant to notice of May 9, 1996, moved:That the Special Committee of the Senate on the Cape Breton Development Corporation have power to sit on May 28, 1996, at three in the afternoon, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
He said: Honourable senators, I gave notice of this motion the other day, in the unavoidable absence of the Chairman of the Special Committee of the Senate on the Cape Breton Development Corporation, Senator Rompkey. Honourable senators will be aware that in establishing the committee, we set a date of June 15 for report. We need to hear a number of witnesses very soon, so the committee, in its wisdom, decided to ask the Senate for permission to sit on Tuesday, May 28. We will hear from representatives of the Crown corporation and the union, and possibly from other witnesses, starting at 9:30 a.m. and proceeding until at least 6:00 p.m.
I commend this motion to the support of honourable senators.
Motion agreed to.
Pearson International Airport Agreements Bill
Second Reading-Order Stands
On the Order:Second reading of Bill C-28, An Act respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, could I have leave to revert to item number 3 under government business?
Some Hon. Senators: No.
The Hon. the Speaker: Is leave granted?
Some Hon. Senators: No.
The Hon. the Speaker: Leave is not granted.
The Senate adjourned during pleasure.
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The sitting of the Senate was resumed.
Employment Insurance Bill
First Reading
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-12, respecting employment insurance in Canada.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
Hon. B. Alasdair Graham (Deputy Leader of the Government): With leave, at the next sitting of the Senate.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Jean-Maurice Simard: No.
The Hon. the Speaker: Leave is not granted.
On motion of Senator Graham, bill placed on the Orders of the Day for second reading on Thursday, May 16, 1996.
Agreement on Internal Trade Implementation Bill
First Reading
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-19, to implement the Agreement on Internal Trade.Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On motion of Senator Graham, bill placed on the Orders of the Day for second reading on Thursday, May 16, 1996.
The Senate adjourned to Wednesday, May 15, 1996, at 1:30 p.m.