Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
2nd Session, 35th Parliament,
Volume 135, Issue 48
Thursday, October 31, 1996
The Honourable Gildas L. Molgat, Speaker
- SENATOR'S STATEMENT
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- ORDERS OF THE DAY
THE SENATE
Thursday, October 31, 1996
The Senate met at 2:00 p.m., the Speaker in the Chair.Prayers.
Visitors in the Gallery
The Hon. the Speaker: Honourable senators, as you are all aware, Canada has made a bid for a world exposition in 2005, and the chosen city is Calgary. I wish to draw your attention to the presence in the gallery of members of the Bureau of International Expositions who are in Canada on a mission of inquiry to see whether Canada is in a position to host that exposition.The head of the mission in the gallery is Mr. Gilles Noghes of Monaco. He is accompanied by Mr. Donald Drielsma of Sweden, Mr. Juha Virtanen of Finland, and the secretary general, Mr. Vincente Loscertales of Spain.
We welcome you to the Senate of Canada.
SENATOR'S STATEMEN)
Africa
Possible Conference on Strategic Plan for Rwanda-Burundi-Zaire Region
Hon. A. Raynell Andreychuk: Honourable senators, I wish to draw more attention to the evolving crisis in Zaire, Rwanda and throughout the African Great Lakes region. I support Ambassador Chrétien's initiative to assist the United Nations in determining its appropriate humanitarian and political solution in this difficult area. I have worked with Ambassador Chrétien and respect his professionalism, and the United Nations will profit from this association.However, from a Canadian perspective, we cannot delegate all our responsibilities to the United Nations actions only and we cannot wait for the outcome of this initiative before we as a country take action.
The crisis is not new. It has historic roots in ethnic conflicts exacerbated by colonial demarcations and discriminations. Recent atrocities commenced in the late 1950s. Refugees have suffered for decades. The issues are known and the players are known. It is time to act. I urge the Canadian government to immediately look at other possible initiatives.
For example, Canada should call for an immediate conference on the limiting of arms into the area. Canada should call on all donors to meet immediately with leaders to gain access to refugees, in a strategy not unlike the one Canada initiated in Ethiopia in the past. I would call on the minister to meet with Canadian NGOs who are working in the area to determine a strategic plan of assistance to aid agencies. I would also call on Canada and the government to immediately utilize Ambassador Marius Bujold in convincing adjoining countries to step up their efforts and influences.
ROUTINE PROCEEDINGS
Clerk of the Senate
Annual Accounts Tabled
The Hon. the Speaker: Honourable senators I have the honour to inform the Senate that, pursuant to rule 133, the Clerk of the Senate has laid on the Table a detailed statement of his receipts and disbursements for the fiscal year 1995-1996.Annual Accounts Referred to Committee
Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(f), I move that the Clerk's accounts be referred to the Standing Committee on Internal Economy, Budgets and Administration.The Hon. the Speaker: Is leave granted?
Hon Senators: Agreed.
Motion agreed to.
State of Financial System
Report of Banking, Trade and Commerce Committee on Study Presented
Hon. Michael Kirby, Chairman of the Standing Senate Committee on Banking, Trade and Commerce, presented the following report:Thursday, October 31, 1996
The Standing Senate Committee on Banking, Trade and Commerce has the honour to present its
NINTH REPORT
Your Committee, which was authorized by the Senate on Thursday, March 21, 1996, to examine and report upon the present state of the financial system in Canada, now deposits a report entitled 1997 Financial Institution Reform: Lowering the Barriers to Foreign Banks.Respectfully submitted,
MICHAEL KIRBY
Chairman
On motion of Senator Kirby, report placed on the Orders of the Day for consideration at the next sitting of the Senate.
Canada Labour Code
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-35 to amend the Canada Labour Code (minimum wage).
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
On motion of Senator Bosa, bill placed on the Orders of the Day for second reading on Tuesday next, November 5, 1996.
Inter-Parliamentary Union
Ninety-Sixth Conference, Beijing, China-Report Tabled
Hon. Peter Bosa: Honourable senators, I have the honour to table the report of the Canadian Group, Inter-Parliamentary Union on the Ninety-sixth Inter-Parliamentary Conference held in Beijing, China from September 14 to September 21, 1996.Administration of Justice
Notice of Motion for an Address to His Excellency to Consider the Removal of Madam Justice Louise Arbour
Hon. Anne C. Cools: Honourable senators, pursuant to rule 56(1) and 57(1)(b), I give notice that on Wednesday, November 5, 1996, I shall move that the following Address be presented to His Excellency the Governor General of Canada, the Right Honourable Roméo LeBlanc:May it please His Excellency,
We, Her Majesty's most dutiful and loyal subjects, the Senate of Canada, in Parliament assembled, beg leave humbly to represent to Your Excellency that the office of Judge of the Ontario Court of Appeal in Canada is an office of dignity and importance, on the impartial, upright and incorrupt execution of which, the honour of the Crown, and the protection of the rights and interests of Her Majesty's subjects greatly depend; and that on the 18th day of December, 1987, Louise Arbour was appointed by Royal Letters Patent to the office of Judge of the Supreme Court of Ontario; and that on the 16th day of February, 1990, Madam Justice Louise Arbour was appointed by Royal Letters Patent to the office of Judge of the Ontario Court of Appeal with effect from the 19th day of March, 1990;
That it appears to your faithful subjects and Senators that on the 29th day of February, 1996, Madam Justice Louise Arbour accepted employment outside of Canada as a Tribunal Prosecutor by appointment by United Nations Security Council Resolution 1047; that it appears that such employment is a breach of the laws of Canada, specifically the Judges Act, and is not consistent with the office of a Superior Court Judge of Canada; that it appears that such procurement, employment and remuneration at home or abroad are prohibited by the Judges Act;
That it appears to your faithful subjects and Senators that the Government of Canada did not nominate Justice Arbour and had no role in her employment by the United Nations and that such employment and remuneration was procured by herself privately; and that that procurement and its remuneration now host public suspicion and conjecture;
That it appears that Justice Arbour's public irregular activities have found support in the Department of Justice and the Canadian Judicial Council which has caused Parliamentary action to amend the Judges Act by Bill C-42, to accommodate hers and like international aspirations of the Canadian Judicial Council; and that such activities by certain Justices to Parliament are inappropriate and are inconsistent with parliamentary practice, and the constitutional convention of judicial independence, and has caused division in the Senate.
That it appears to your faithful subjects and Senators that on August 7, 1996, Cabinet executed a first Order-in-Council P.C. 1996-1262 to facilitate Justice Arbour's departure from Canada for work at the United Nations from July 1 to September 30, 1996, which Order-in-Council is insufficient to retroactively legitimate Madam Justice Arbour's actions from February 29, 1996 forward; and that it appears that on October 1st, 1996, Cabinet executed a second Order-in-Council P.C. 1996-1543 to permit her to perform duties as United Nations Prosecutor from October 1 to October 31, 1996; and that it appears that this second Order-in-Council was executed after certain Senators had expressed opposition, and at Senate second reading debate had recorded grave concern about the principles and propriety of Bill C-42; that it appears that a principle of parliamentary responsible government holds that Orders-in-Council may not be used by the Executive to circumvent or to deny the Senate and its Constitutional rights per the Constitution Act, 1867, Sections 99 and 100 in respect of justices, their employment, and their remuneration; and that it appears that this justice's private interests and actions are pressuring Parliament in its proceedings and votes;
That it appears to your faithful subjects and Senators that Cabinet's support of this justice's activities both, by Order-in-Council and legislative amendment, and by reliance on party discipline in the Senate ignore the established Parliamentary principle that legislation in respect of justices proceed in the Senate with wide support from both Government and Opposition Senators; and it appears that Cabinet's actions in the face of the division between political parties in the Senate in respect of justices' potential or actual breaches of the law are unseemly to parliamentary politics and to the convention of judicial independence, and are harmful to both; and that it appears that the second Order-in-Council expires today, October 31, 1996, and that the Senate is anxious lest Cabinet execute yet another, a third, Order-in-Council on her behalf.
And that it appears to your faithful subjects and Senators that the Canadian Judicial Council will not investigate the conduct of Madam Justice Arbour in respect of these matters; and that it appears that Madam Justice Arbour has violated her oath of office, and has publicly breached the Judges Act; and that it appears to the Senate of Canada that by such breaches, and by her breach of her oath of office, and by her self-removal from the Bench and from Canada, and by her wilful absence from Bench and country, she has abandoned her judicial office and neglected the duties of said office; and that it appears to the Senate of Canada that by these acts Madam Justice Arbour has permanently impaired her judicial character and her usefulness as a Judge and has rendered herself unfit for the exercise of the functions of the office of Judge, which she currently holds.
We, therefore, humbly pray Your Excellency, that, in accordance with the provisions of the Constitution Act 1867, section 99(1), Your Excellency will be pleased to remove Madam Justice Louise Arbour from the office which she holds of Judge of the Ontario Court of Appeal.
Inter-Parliamentary Union
Ninety-Sixth Conference, Beijing, China-Notice of Inquiry
Hon. Peter Bosa: Honourable senators, I give notice that on Tuesday next, November 5, 1996, I will call the attention of the Senate to the 96th Inter-Parliamentary Conference held in Beijing, China from September 14 to 21, 1996.Commemoration of Fiftieth Anniversary of End of World War II
Notice of Inquiry
Hon. J. Michael Forrestall: Honourable senators, I give notice that on Wednesday next, November 6, 1996, as we approach Remembrance Day, I will call the attention of the Senate to the work that was done and the significance of the pilgrimage, both to Europe and to the Far East, to commemorate the 50th anniversary of the end of the Second World War.QUESTION PERIOD
Goods and Services Tax
Harmonization with Provincial Sales Taxes-Effect on Business-Government Position
Hon. J. Michael Forrestall: Honourable senators, I should like to return to the question of harmonization of provincial sales taxes in the Atlantic Provinces with the Goods and Services Tax.The Leader of the Government in the Senate cannot deny that there is growing concern about this new, harmonized tax. Every day, the price of goods such as food items, birthday cards, home heating fuel and electricity continue to increase.
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On those items that were not taxed previously, the increase is significant. Indeed, in terms of home heating fuels, it may well be crippling to people on fixed incomes, particularly those incomes that result from investment.
The increases I speak of do not take into account what retailers will have to face as a result of the tax-in pricing scheme, which they will have to pass on to their customers. For example, only yesterday Senator Comeau cited the difficulties that Canadian Tire will have. Another example is The Bay stores. We learned today that they are estimating an additional $1.3 million, each and every year, just to cover the cost of reticketing in three stores in Atlantic Canada.
I am sure that the minister is aware of who will bear the brunt of these increases; that is, the taxpayers; the residents of these communities.
What will the response of the government be to the people of Atlantic Canada when some big retail chains, as well as many medium-sized stores, which are the backbone of our industrial and commercial strength, consider closing their doors - and we have learned today that they will - rather than undergoing the additional cost with which this tax will burden them? Has the government given any thought to that possibility? It would be devastating in terms of employment, circulation of dollars, access to goods and materials and so on.
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the agreement for the harmonization of the GST in the three Atlantic provinces was made after very careful negotiation between the two levels of government. There is every confidence that, as the tax comes into play, there will be evidence in those provinces of a reduction in prices. The input taxes which were in the system before will no longer be there. The provincial governments - in the province of my honourable friend as well as the other two provinces - clearly believe that there will be benefits for consumers.
As this tax comes into force, there will be much speculation as to how it will turn out. I suggest to my honourable friend that the citizens of Newfoundland, Nova Scotia and New Brunswick will see significant benefits.
Senator Forrestall: Honourable senators, I wish I could share the optimism of the minister, but practical reality suggests quite the contrary. It will be a difficult period and it will last for a significant time. We have an uneven playing field in Canada now. God only knows what it will be like as this tax comes into play in some provinces and not in others. All the government has done is succeeded in making it possible for Finance Minister Martin to say that the government ended the GST in Atlantic Canada.
Could the Leader of the Government in the Senate comment specifically on the issue of tax-in pricing for federally regulated companies? I would like her to confirm, if possible, that companies in the three Atlantic provinces that are federally regulated will also be required to switch to tax-in pricing. For example, will Canada Post in Nova Scotia, New Brunswick and Newfoundland be required to print a 48-cent stamp just for use in that area?
Senator Fairbairn: Honourable senators, I never take Honourable Senator Forrestall's questions lightly. I will seek an answer for him.
Report on Cost of Harmonization with Atlantic Provincial Sales Taxes-Request for Particulars
Hon. Gérald J. Comeau: Honourable senators, it has come to my attention that an internal document from the Nova Scotia Department of Finance indicates that the new harmonized sales tax will cost the provincial economy $200 million in the first year and approximately $100 million thereafter. This information was passed on to me. Obviously, officials at the Federal Department of Finance would know of the existence of such a document. Could she tell us, as soon as possible, whether or not such a document or report exists?Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I appreciate that Senator Comeau indicated that the document was passed on to him and has not been verified. I am not able to verify, nor do I know whether the Minister of Finance of Canada could verify any documents that might exist in the Nova Scotia government. I believe that that question should most properly be put to the minister of finance of Nova Scotia.
Senator Comeau: Honourable senators, Nova Scotians have a provincial government, but they are also constituents of the federal government. If there is a document that indicates this kind of damage to a provincial economy, the federal government should be very much concerned and should, through its officials and its contacts in the provincial government, ensure that the document is made public and reviewed seriously. If economic hardships are to be imposed on Nova Scotians, the federal government should be very concerned about it.
Senator Fairbairn: Honourable senators, I do not wish to be drawn into speculation about a document that is the property of another government. However, I will indicate to my honourable friend, first, that those who negotiated these agreements did so in the faith and expectation that these agreements will be of great benefit to their provinces. Undoubtedly, there will be some disruption during the transition period to the harmonized tax, which is precisely why the federal government indicated early on that it would apply adjustment assistance to the three provinces involved.
World Expositions
Participation of Canada in Expositions in Lisbon and Hanover
Hon. Norman K. Atkins: Honourable senators, several years ago, Toronto made a bid to the Bureau of International Expositions for Expo '98. Unfortunately, Toronto lost that bid to Lisbon, Portugal. Would the Leader of the Government in the Senate tell me if Canada is participating in the Lisbon Expo? Will we have a pavilion? If so, how much money is committed?(1430)
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, Canada will be participating in the Lisbon Expo. I will get information as to our exact commitment. Certainly, it would be a responsible action for this country to take part in the Lisbon Exposition as we move toward being able to host our own exposition, it is to be hoped, in the year 2005.
Senator Atkins: Honourable senators, Toronto also lost a bid for Expo 2000, which was won by Hanover, Germany. May I ask the Leader of the Government to ascertain whether Canada is participating in that Expo? Will we have a pavilion; and, if so, how much money has been committed?
Senator Fairbairn: Honourable senators, I will seek that information as well for the Honourable Senator Atkins.
Code of Conduct
Accountability of Ethics Counsellor for Findings Related to Transgressions of Minister-Request for Ethics Guidelines-Government Position
Hon. Marjory LeBreton: Honourable senators, my question is also directed to the Leader of the Government in the Senate. Exactly four weeks ago today, on October 3 to be precise, I raised a question about the spending habits of the Secretary of State (Training and Youth). I should like to point out that a few moments ago I watched the Secretary of State make a statement in the other place.On October 3, my question focused on the role of the so-called Ethics Counsellor who, at the time, confirmed that he met with the minister and that she had agreed to use her own credit cards for personal use. We now find out that the Ethics Counsellor never even looked at the documents in question. He simply took the word of the minister and officials. We also have the unacceptable responses of the Prime Minister and the President of the Treasury Board, both of whom said that this was a minor error, or an honest mistake, or a tempest in a teapot.
In a document delivered to Canadian households via their newspapers this weekend, the Prime Minister stated, "Commitments are only as strong as our will to fulfil them." My question is: When will this government fulfil its Red Book promise which states:
- a Liberal government will appoint an independent Ethics Counsellor to advise both public officials and lobbyists in the day-to-day application of the Code of Conduct for Public Officials. The Ethics Counsellor will be appointed after consultation with the leaders of all parties in the House of Commons and will report directly to Parliament.
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, it was the decision of the Prime Minister and the government to choose the process of having the Ethics Counsellor, Mr. Howard Wilson, perform the duties that he performs. He performs them with great diligence.
I believe that was the case in the most recent observations that the honourable senator has made with regard to my colleague Ethel Blondin-Andrew. If she listened to the minister in the House of Commons today, she will know that she has abided in spirit and in fact in the most proper way. I believe her statement in the House of Commons made that very clear.
Senator LeBreton: Honourable senators, I watched the minister making her statement. It seemed to raise more questions than it gave answers.
Would it be too much to ask the Leader of the Government when she intends to respond to my direct questions posed four weeks ago on the role of the Ethics Counsellor on matters such as this? Obviously there is some confusion as to what he did before and what he is doing now, and also whether this particular matter is being investigated by the RCMP.
Senator Fairbairn: Honourable senators, I certainly will be responding to the honourable senator through the channels we normally use to obtain our information. I regret - and I have said this in the house before - the length of time it takes, on occasion, to receive those responses.
As far as my friend's second question is concerned, I will triple check, but I feel confident in telling her that the answer is no.
Senator LeBreton: Honourable senators, will the minister undertake to release the ethics guidelines, which were apparently used to obtain the resignation of the Minister of National Defence but which did not apply to the former Minister of Canadian Heritage or to the present Secretary of State for Training and Youth? We would like to see the guidelines.
Senator Fairbairn: Honourable senators, the Prime Minister himself has indicated that the guidelines are not public. As has been made quite clear by the Prime Minister, the guidelines were established to clarify procedures following the situation involving the former Minister of Canadian Heritage. They are being followed by ministers. On the occasion when there was an error, the minister resigned from cabinet. The guidelines work.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I wish the minister would answer the fundamental question asked by the Honourable Senator LeBreton. Why is it that the Ethics Counsellor who, according to the Red Book, would answer to Parliament, suddenly reports in private only to the Prime Minister? Why are we not privy to his deliberations and how he comes to his decisions? Why did the Red Book lead us to believe that the previous government's ethics were so low that we had to have a public ombudsman called the Ethics Counsellor who would report in public? Suddenly, once the Liberals formed the government, they decided that this person who was to report to Parliament and the public would only report to the Prime Minister in private.
Senator Fairbairn: Honourable senators, that was the choice of the Prime Minister and the government when the position was being put together following the election. That is the way the Ethics Counsellor works. As I said to Senator LeBreton, the Ethics Counsellor is very diligent in his work.
Senator Lynch-Staunton: How do you know?
Senator Fairbairn: Also, the guidelines are being carefully observed by my colleagues. When they were not, the minister chose the responsible and honourable route by resigning immediately. The Ethics Counsellor and the guidelines do, in fact, work.
Senator Lynch-Staunton: The Ethics Counsellor was supposed to report to Parliament. He is now the plaything of the Prime Minister of Canada.
Senator Fairbairn: I find that remark offensive.
Senator Lynch-Staunton: The minister cannot put the lie to it.
Hon. R. James Balfour: Honourable senators, I wonder how the minister can seriously contend that the Ethics Counsellor is diligently performing his tasks when, as late as last night, he admitted that he had not actually looked at the expense claims that Ms Blondin-Andrew signed, which included personal expenses, but that he had simply taken the word of Ms Blondin-Andrew and officials in the Department of Human Resources Development.
Senator Fairbairn: Honourable senators, the statement made by the Secretary of State in the House of Commons today very clearly set out the procedures that were drawn up within her department with consultation. This does not in any way diminish the role of the Ethics Counsellor in ensuring that these kinds of guidelines are adhered to.
Senator Lynch-Staunton: What guidelines? Where are they?
Newfoundland
Changes to School System-Amendment to Term 17 of Constitution-Timing of Vote in Senate-Government Position
Hon. Marcel Prud'homme: Honourable senators, yesterday, as reported in the Debates of the Senate, in an exchange between the Leader of the Government in the Senate, Senator Kinsella and myself, the Leader of the Government said:I understand discussions are going on between the leadership.
The heading of the question reads, "Changes to School System-Amendment to Term 17 of Constitution-Timing of Vote in Senate - Government Position."
It would be an absolute monstrosity if senators could not take a position either way, as I have said. I hope that we do not have to wait for the deadline. The clock is running rapidly. I am not privy as to when there may be an adjournment of this place. We may or may not come back the week of November 11; I do not know.
What is the position of the government on this issue, one which I have been raising for quite a long time? Are we making progress? If so, can we expect to vote before the deadline?
Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I simply assure the honourable senator, as I did yesterday, that discussions are progressing between our colleagues. My honourable friend will certainly be kept informed. We all look forward to hearing his speech.
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Senator Prud'homme: I said yesterday that I might not make a speech on the amendments, but that I certainly would on third reading.
My difficulty is that, so far, we have been hearing from one senator a day. I very much appreciated the speech made yesterday by Senator Lewis, and the day before that the speech by Senator Pearson. Now the order is adjourned in the name of Senator Anderson, and she will likely participate today.
Surely we should have some discipline. We must know already who intends to participate and who does not intend to participate. There is some kind of discipline between the two parties and, being alone, I will not interfere in the cooperation between the two parties. However, senators must know now if they will be participating in the debate on Senator Doody's amendment, or perhaps on other amendments to come. I tell you openly and in the spirit of cooperation that I will participate in the third reading.
It would be quite a shock, to be very blunt, direct and polite, if we were not given a chance to vote on this very important issue.
Senator Fairbairn: I assure my honourable friend that there are people on this side of the house, and I am sure on the other side of the house, who wish to speak on this order. My honourable friend is welcome to speak on any day, including today, whenever he wishes. I am quite sure that members in this house will be more than happy to hear him.
Senator Lynch-Staunton: He wants to vote.
Senator Fairbairn: There is no question about the honourable senator's ability to enter into the discussion at any time he wishes.
Senator Lynch-Staunton: He wants a decision taken.
Senator Prud'homme: The question is not my ability, or lack of ability, to participate or convince anyone. I doubt very much at this time whether anyone would be able to convince anyone else. Everyone seems to be in a mood where they know what they intend to do.
I am not begging to participate. I am not asking if I have time; I know I have time. I am not saying that you are trying to keep me out of the debate. I know that is not what you meant to say, and that is not what I meant to say, either. My only question is whether we will have time to dispose of amendments and the resolution before the deadline imposed by the 1982 Constitution, which says that in matters pertaining to the Constitution, the Senate has only six months in which to act.
Senator Fairbairn: That is precisely the program upon which our two colleagues are working.
Immigration
Failure of Federal Judge to Order Deportation of Drug Dealer-Government Position
Hon. Consiglio Di Nino: Last week, Justice Barbara Reed of the Federal Court of Canada overturned the deportation of a convicted drug dealer. She ruled that it was unfair to deport this trafficker because the law did not require that he be told why he was considered a danger to the Canadian public.Honourable senators, I should like to remind you that during the debates on Bill C-44, the senators on this side, in the spirit of cooperation, decided to make a number of recommendations instead of suggested amendments to that particular legislation. Among the recommendations were that the Minister of Citizenship and Immigration be required to provide written reasons for refusal with respect to those cases involving individuals who have made submission to the minister, et cetera. We spent much time and energy on this because we were told that, unless this happened, scum like this convicted drug trafficker, convicted in Canada, would not be able to be deported.
My question to the minister is, why were these recommendations not acted upon?
Hon. Joyce Fairbairn (Leader of the Government): I will be pleased, Senator Di Nino, to transmit that question to my colleague.
Senator Di Nino: Would the leader of the government in the Senate also give some commitment? These recommendations were non-partisan. I believe that the chairman of the committee acknowledged during his third reading speech that these were items that the minister, and the Senate, should be concerned about and should adopt.
I would ask the Leader of the Government in the Senate to ask the Minister of Immigration when we can expect some action on these very appropriate recommendations, so that we can keep scum out of our country.
Senator Fairbairn: Again, I will be pleased to follow up on that item with the minister.
Amendments to Judges Act
Expiry of Order in Council Concerning Madam Justice Arbour-Government Position
Hon. Noël A. Kinsella: Honourable senators, I have a question for the Leader of the Government in the Senate. Further to our interest in the Order in Council that the government issued relative to the situation of Madam Justice Arbour, we heard in an earlier proceeding today that the present Order in Council expires today. Will the government be issuing a further Order in Council relative to this matter?Hon. Joyce Fairbairn (Leader of the Government): To be absolutely precise on this matter for my friend, I will ask my colleagues today.
ORDERS OF THE DAY
Bankruptcy and Insolvency Act
Companies' Creditors Arrangement Act
Income Tax Act
Bill to Amend-Second Reading
On the Order:Resuming the debate on the motion of the Honourable Senator Kirby, seconded by the Honourable Senator Stewart, for the second reading of Bill C-5, to amend the Bankruptcy and Insolvency Act, the Companies' Creditors Arrangement Act and the Income Tax Act.
Hon. W. David Angus: Honourable senators, I rise to support in principle Bill C-5, to amend the Bankruptcy and Insolvency Act, the Companies' Creditors Arrangement Act, and the Income Tax Act, and to urge that it be referred with dispatch to the Standing Senate Committee on Banking, Trade and Commerce for careful review and analysis.
This legislation is complex, and designed to form part of a framework that is basic to the stability of Canada's economic system. It is thus key, I submit, to ensure in committee that it fosters the striking of a proper balance between the just and equitable rights of unpaid creditors, on the one hand, and, on the other, the need to encourage and enable insolvent consumers and businesses responsibly to reorganize their affairs and again become viable and productive in the Canadian marketplace after a financial disaster.
Honourable senators, my colleagues on this side of the house, I am sure, welcome this proposed legislation, as it is Phase II of major reforms to Canada's bankruptcy and insolvency legislation, Phase I having been enacted as Bill C-22 in 1992 by the Progressive Conservative government of Brian Mulroney. The 1992 amendments were long awaited, long overdue, and the first overhaul of any kind of Canadian bankruptcy and insolvency law in some 40 years.
Honourable senators, I believe it is well worth noting that between 1975 and 1984, Liberal governments failed on no less than six occasions to bring forward insolvency and bankruptcy law reform; some were being loudly clamoured for in nearly every sector of Canadian society.
Bill C-22, or Phase I of these reforms, provided for those in financial hardship a reasonable chance to get back on their feet and to avoid bankruptcy.
The new rules made it easier for the businesses in difficulty to reorganize. Unpaid suppliers and wage-earners gained better protection. New measures were adopted to help prevent consumer bankruptcies. The Crown priority was reduced.
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Significantly, for this present exercise, honourable senators, Bill C-22 stipulated that the Phase I amendments be appropriately reviewed after three years. Similarly, Bill C-5 provides for a further review after seven years. Thus, in May 1993, the Progressive Conservative government appointed the Bankruptcy and Insolvency Review Committee, chaired by the deputy minister of industry and comprising representatives and experts from both the public and the private sectors. The Bankruptcy and Insolvency Review Committee's mandate was to monitor the effects of the Phase I legislation prior to the 1995 review of the act. As well, the committee was charged with developing a consensus on several key issues, such as international insolvencies, consumers' insolvency and environmental liability. The work of this review committee was part of an extensive consultative process involving direct and constructive input from Canada's business sector, from consumers, and also from practitioners with great experience and expertise in bankruptcies and insolvencies.
Honourable senators, the legislative changes or amendments contemplated in Bill C-5 - originally, there were more than 70 of them - emanate in large measure from the recommendations which the Bankruptcy and Insolvency Review Committee put forward at the end of the said consultative process.
This bill was first introduced in the other place by Minister of Industry Manley as Bill C-109 on November 24, 1995, almost one full year ago. Where has it been in the meantime? It had not proceeded beyond first reading when Parliament prorogued on February 6 this year. The legislation was reintroduced by agreement as Bill C-5 in the second session of this 35th Parliament and received first reading in the other place again on March 4, 1996.
It subsequently received second reading and was referred to the House of Commons Standing Committee on Industry. As far as I can determine, the said House committee held extensive hearings on the last day, and the government representatives moved some 80 amendments prior to reporting the bill back to the House on October 7. To date, there have been no hearings or comments from interested parties on these amendments, which are said to be largely technical in nature. No doubt, the Banking Committee will wish to solicit input on these issues, as well as on many other substantive and complex issues, some of which are turning out to be rather controversial.
Senator Kirby, after moving second reading of Bill C-5 in this chamber on Monday evening, outlined some of the proposals contained in the bill, focusing almost exclusively - but not surprisingly, given his philosophical bent - on the impact of the bill's provisions on Canadian consumers. He also stated that the Standing Senate Committee on Banking, Trade and Commerce, which he chairs, will be holding extensive hearings in relation to the bill. He sought the support of honourable senators in sending the bill to committee "fairly soon," and I concur, honourable senators.
The principal amendments to the Bankruptcy and Insolvency Act contained in Bill C-5 deal with: one, licensing and regulation of bankruptcy trustees; two, liability of trustees for environmental damage and claims; three, liability of directors and stays of action against directors during reorganization processes; four, compensation for landlords where leases are disclaimed within a reorganization proposal; five, procedures and consumer proposals; and, six, consumer bankruptcies.
As well, the bill deals with the dischargeability of student loans by which student loan debt would be non-dischargeable for a period of two years. This will no doubt be of interest to members of the committee. Other issues are Workers' Compensation Board claims, requirements for bankruptcies to pay a part of their income to the bankrupt estate, and international insolvencies.
Honourable senators, I know you will be delighted to hear that I have no intention of examining each and every one of these issues this afternoon. I do wish, however, to highlight the fact that Bill C-5 introduces a regime of liability protection or limitation for company directors. Under current law, directors are exposed to a substantial personal liability in the event of a corporation's insolvency. As a result, there is a disincentive for them to stay involved and to remain on the board to help salvage or rehabilitate companies in financial trouble. The Banking Committee has recently expressed the view, with which I strongly agree, that if businesses are to reorganize rather than liquidate, directors need to be encouraged to continue their involvement in the stewardship of the company during times of financial crisis. It seems at first glance that Bill C-5 endeavours to secure the competence and expertise of a company's directors for the duration of the reorganization period. No doubt the Banking Committee will wish to scrutinize this amendment carefully to ensure that the desired result is indeed achieved by the legislation.
Honourable senators, the committee will also be particularly interested in studying those provisions of Bill C-5 that purport to place limits on the use of the Companies' Creditors Arrangements Act, otherwise known as CCAA, as an alternative regime for reorganizing insolvent companies. The proposed amendments in Bill C-5 are designed to make the CCAA more of a companion to the Bankruptcy and Insolvency Act and to harmonize its disclosure and monitoring requirements. The bill stipulates that only companies with liabilities of more than $10 million will have access to the CCAA, thus purporting to preserve the flexibility and special features of the CCAA for large corporations seeking to reorganize their affairs. The amendments also seek to ensure that creditors are better informed as the reorganization process unfolds.
Honourable senators, the reaction to Bill C-5 has been generally positive to date. However, some of its provisions have generated considerable debate. Examples are found in those provisions dealing with the liability of trustees for environmental damages, the priority claim for environmental clean-up costs, and the proposal for the non-dischargeability of student loan debt. Also of concern is the fact that the proposed amendments do not appear to address appropriately the issue of compensation for unpaid wages to workers whose employment has been terminated following a bankruptcy, receivership or liquidation of their employer.
Honourable senators, I am confident that the committee will examine all of these important issues, and I look forward to participating actively in its deliberations and hearings. Also, I am hopeful that, in due course, when the committee reports Bill C-5 back to this chamber, honourable senators will be assured that Phase II of Canada's bankruptcy and insolvency legislation reform, as contained in Bill C-5, when combined with Phase I, will effectively provide a framework in which it is preferable for Canadian consumers and businesses to reorganize their financial affairs to avoid bankruptcy. It will also emphasize the importance of measures to promote consumer rehabilitation, promote fairness to both creditors and debtors alike as well as a commitment to fair competition and equity, and make the law more effective, less expensive and easier to apply in day-to-day operations.
The Hon. the Speaker: Honourable senators, it was moved by the Honourable Senator Kirby, seconded by the Honourable Senator Stewart, that the bill be read the second time now. Is it your pleasure to adopt the motion?
Motion agreed to and bill read second time.
Referred to Committee
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?On motion of Senator Graham, bill referred to the Standing Senate Committee on Banking, Trade and Commerce.
Judges Act
Bill to Amend-Third Reading-Motion in Amendment-Debate Continued
On the Order:Resuming the debate on the motion of the Honourable Senator Bryden, seconded by the Honourable Snator Stollery, for the third reading of Bill C-42, to amend the Judges Act and to make consequential amendments to another Act,
And on the motion in amendment of the Honourable Senator Nolin, seconded by the Honourable Senator Doody, that the Bill be not now read the third time but that it be amended:
(a) in clause 4 on page 3:
(i) by replacing line 13 with the following:
approval of the Council.,
(ii) by replacing line 15 with the following:
granted pursuant to subsection (1), the chief, and
(iii) by deleting lines 23 to 31; and
(b) in clause 5, by replacing lines 11 to 45 on page 4 and lines 1 to 35 on page 5 with the following:
56.1 (1) A judge on leave of absence granted pursuant to subsection 54(1) may, with the approval of the Council granted pursuant to subsection (2), perform judicial or quasi-judicial duties for an international organization of states or an institution of such an organization and may receive in respect thereof reasonable moving or transportation expenses and reasonable travel and other expenses from the Government of Canada.
(2) Where a judge requests a leave of absence pursuant to subsection 54(1) to perform judicial or quasi-judicial duties for an international organization of states or an institution of such an organization, the Council may, at the request of the Minister of Justice of Canada, approve the undertaking of the duties.
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Hon. Philippe Deane Gigantès: Honourable senators, this bill represents an important continuation of a great Canadian tradition to help the international community in the resolution of disputes and their aftermath. We invented intervention for such purposes. The Right Honourable Lester B. Pearson was the father of such activities during the Suez crisis. We have all been proud of this Canadian habit of helping others to abandon the use of violence and seek peaceful means to resolve their disputes.
We have gone further, honourable senators. We have always sent people to help countries or communities in the process of passing from violence to peaceful means. We have sent observers to supervise elections, which, in a very real sense, are a tribunal that take decisions. We have been honoured for this. The world has recognized us as pioneers in the field and as useful citizens of the world.
Honourable senators, Bill C-42 would make it easier for a respected Canadian judge, invited by an international organization, to go and perform duties in this field of helping deal with conflict and the aftermath of conflict. That is very important. It would be a break with the Canadian tradition to say, "No, we cannot send judges. We can send the military. We can send senators to observe things, but we cannot send judges."
This bill allows us to give the international community the benefit of our judicial system. I find it very difficult to understand why we should at all oppose it. If a Canadian judge goes abroad on a leave of absence, not being paid during this leave of absence by the Canadian government and working with the permission of the Canadian government for an international agency engaged in dealing with the resolution of conflict and its aftermath, why should such a judge not be allowed to go? Why should we not take the necessary legal and legislative steps that this bill provides for to make it possible for such a judge to go abroad and serve humanity on behalf of Canada in an honourable position?
Honourable senators, I have not heard convincing arguments against what I am saying. I cannot imagine that a Canadian judge, performing such duties abroad, would become tainted, and upon his or her return to Canada would no longer be fit to be a judge and resume his or her duties as a judge. It is very difficult to imagine such a circumstance. To deny others the services of expert Canadian judges would be, I think, a refusal of the honourable Canadian habit of helping others. That is why I support this bill, and I urge my fellow senators to support it also.
On motion of Senator Milne, debate adjourned.
Newfoundland
Changes to School System-Amendment to Term 17 of Constitution-Report of Committee-Motion in Amendment-Debate Continued
On the Order:Resuming the debate on the motion of the Honourable Senator Rompkey, P.C. seconded by the Honourable Senator De Bané, P.C., for the adoption of the thirteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (respecting Term 17 of the Terms of Union of Newfoundland with Canada set out in the Schedule to the Newfoundland Act), deposited with the Clerk of the Senate on July 17, 1996;
And on the motion in amendment of the Honourable Senator Doody, seconded by the Honourable Senator Kinsella, that the Report be not now adopted but that it be amended by deleting the words "without amendment, but with a dissenting opinion" and substituting therefor the following:
with the following amendment:
Delete the words in paragraph (b) of Term 17 that precede subparagraph (i) and substitute therefor the words: "where numbers warrant,".
Hon. Doris M. Anderson: Honourable senators, as I rise to take part in this important debate, I should perhaps clarify my position. I did not attend the Ottawa hearings of the Standing Senate Committee on Legal and Constitutional Affairs in June, but I did read the entire transcript of those hearings very carefully. I did attend all of the meetings in St. John's from July 9 to 11, 1996, and the meetings of the committee in Ottawa on July 15 and 16.
Having spent my entire professional life in the field of education, I have been greatly interested in what is occurring in our neighbouring province of Newfoundland and Labrador with the proposed amendment to the Constitution of Canada. I have listened attentively to the speeches in this chamber of Senators Taylor, Ottenheimer, Murray, Bryden, Rompkey, Kinsella, Carstairs, Forest, Cools, Pearson, Stanbury and Lewis.
Honourable senators, I do not wish to reiterate today all of the background information provided by these previous speakers, except to restate that the education system in Newfoundland and Labrador is unlike that of any other province. It is a denominationally based system operated for those classes having constitutionally guaranteed rights. There are no non-denominational public schools in the province.
Under the present Term 17, denominations make decisions affecting the composition of school boards, the establishment and closure of schools, the hiring of teachers, the establishment of school district boundaries and the distribution of funds. This results in a highly complex system of education with obvious duplication of school boards, administrative offices, schools and transportation systems.
Funding for instructional and operating expenses is provided to the denominational boards on a non-discriminatory basis; that is, according to need. However, capital funding for schools must be distributed in accordance with denominational population, regardless of need. This means, as has already been pointed out, that where funds are provided to one denomination to address a need, proportional funding must be provided to the others, whether they need it or not.
The 1992 Newfoundland Royal Commission concluded that the province's education system must be fundamentally and substantially reformed. Many of the recommended reforms involved significant changes to the powers exercised by the denominations with respect to the administration of schools. The Newfoundland government attempted for three years to negotiate changes to the education system without success. On September 5, 1995, a referendum was held on the question of amending Term 17, and over 54 per cent of the people of Newfoundland and Labrador voted to accept a new model for education, one that retains the denominational character of the current system but provides the provincial legislature with additional powers to organize and administer education in the province.
Senator Rompkey, when speaking in the debate about Term 17 on September 26, 1996, said:
...the power of the churches is being diminished and the power of the legislature is being enhanced. However, that simply puts the legislature of Newfoundland on the same footing as every other legislature in Canada with respect to the administration of education. Nevertheless, there is no doubt that the particular right of those churches will be taken away.
In his excellent presentation to the committee in St. John's, the Newfoundland Minister of Education, the Honourable Roger Grimes, pointed to the unique characteristics of the current system - the geography of the province, the size of the student population, and the enrolment trends. For example, he told us that, in the past 24 years, the Newfoundland and Labrador student population had declined from 162,000 to about 110,000 in 1995-96, with a projected figure below 100,000 by the year 1999. He told us also that these students live in hundreds of communities in coves and inlets that dot Newfoundland's vast coastline. He pointed to the recent downturn in the economy and the devastating effect of the failure of the fishery on the island's economy, which has further complicated the problems of delivering a quality education program to Newfoundland students.
(1510)
The large out-migration of people - about 8,000 per year and largely from the rural areas - has been an additional problem. The Honourable Loyola Sullivan, Leader of the Official Opposition in Newfoundland and Labrador, told us that these rural communities are being decimated. He spoke of one community in his district that has dropped from 1,450 people to 950 people since 1990. Mr. Sullivan concluded that around the province, many communities will have so few numbers that it will be difficult to justify systems and extra costs that are constitutionally protected. Currently, 27 school boards administer 473 schools, which are maintained by the four groups with constitutionally guaranteed rights. The Government of Newfoundland believes that restructuring the system would allow children to attend schools closer to home, and schools would be able to offer a more diverse program of studies.
Honourable senators, to return to the sequence of events that took place in 1995 and 1996 in Newfoundland, in October 1995, the provincial legislature passed a resolution with a vote of 31 to 20 to effect amendment of Term 17 in accordance with the people's wishes. The Government of Newfoundland and Labrador then requested the Parliament of Canada to proceed with the resolution in accordance with section 43 of the 1982 Constitution Act. On May 23, 1996, the provincial legislature of Newfoundland and Labrador unanimously reaffirmed its wish to have the federal Parliament proceed with the necessary resolutions. All parties would appear to be in agreement that reform of the present education system is imperative. The Minister of Education of Newfoundland told the committee that the decision to reform the administration of schools was based on a commitment to provide the young people of his province with the highest quality of education possible within the limited resources available - a laudable objective, I suggest.
If I might be permitted a personal observation in this connection, I would say that while in general I was pleased with the many thoughtful presentations, I was somewhat perturbed in many of the discussions that the children of Newfoundland did not always receive first consideration.
Is a constitutional amendment necessary? We certainly heard rather diverse opinions on this question. In addressing this committee on June 18, 1996, Professor Bayefsky, constitutional lawyer, suggested that certain criteria should be used in considering the Term 17 proposal: First, was the process fair? Second, did the process oppress a disadvantaged minority? Third, what are the external effects on other provinces? Professor Bayefsky maintained that the process had met the test successfully, and she concluded by stating that she felt this amendment was both necessary and appropriate because, otherwise, the threat of constitutional challenge would hang over any kind of suggested reform right from the beginning, and the reforms would inevitably be bogged down in the courts for a long time.
Justice Minister Rock stated that a constitutional amendment was necessary because there was a change in the way denominational rights would be exercised. Mr. Lauwers, on the other hand, argued that the system of education in Newfoundland could be restructured and reformed without the need for a constitutional amendment.
According to Mr. Ian Binnie, a former associate deputy minister of justice, the essential question for the Senate should be whether Newfoundland is respecting what are truly the rights of denominations as denominations, while allowing the rights of Newfoundlanders as citizens and taxpayers to a rationalization of their school system.
Mr. Colin Irving, constitutional advisor to the Catholic and Pentecostal Education Councils, supported those witnesses who asserted that the new Term 17 substantially impinges on the rights of parents to denominational education for their children.
Honourable senators, legal experts who appeared before the Legal and Constitutional Affairs Committee stated quite clearly that the changes proposed will not affect the rights of minorities in other provinces. For example, Professor Dale Gibson, Professor of Law at the University of Alberta, stated:
With respect to school rights outside the province of Newfoundland, it will only have significance if this committee and the Senate does not do its job properly. If you do your job properly, and either accept or reject it on its merits, then there is no precedent value in my view.
Professor Benoit Pelletier, Professor of Law at the University of Ottawa, expressed the view that amendment to Term 17 affected only Newfoundland.
With respect to the proposed amendments to the resolution that would insert the phrases "where numbers warrant," paragraph (b)(i); and "to determine and to direct," paragraph (c), witnesses such as Dr. Katherine Brock, Professor of Political Science at Wilfrid Laurier University, concluded that:
...to recommend modifications to it -
"it" meaning the resolution -
- and thus to decline to accept the decision of the elected legislative bodies and substitute its collective judgment, would require the flaws in the amendment to be significant...
The Honourable Allan Rock also emphasized the expectation that the resolution has been carefully drafted by the province to suit its needs, and that Parliament should tamper with the language only in exceptional circumstances.
The Honourable Roger Grimes affirmed that the language of the resolution was indeed carefully and thoughtfully crafted. The language was chosen to achieve a balance among the rights of all interested parties, to accommodate the particular situation in the province, and to establish an appropriate framework within which the education system may evolve into the 21st century.
In the hearings in St. John's, we heard a great deal about minority rights. I agree with the Leader of the Official Opposition in Newfoundland and Labrador, the Honourable Loyola Sullivan, when he stated in his admirable presentation that he supported the government's position on minority rights when they - that is, the government - argue that the minority rights in question belong to all seven denominations; that each of these denominations is a minority; that not one constitutes a majority; and that it is wrong to say that the majority is riding over the rights of the minority. Mr. Sullivan concluded that the rights of all groups are being affected in the same way.
The Minister of Education, the Honourable Mr. Grimes, in an equally compelling presentation, concluded his remarks with these words:
...it is important to remember -
in assessing the resolution to amend Term 17 -
that no right is absolute. The effect of exercising any one right must always be balanced against the effect of that exercise on the rights of others....The history of denominational education in Newfoundland and Labrador has been exemplary. The resolution continues to respect the rights of denominations and ensures that they will retain a substantial focus on the denominational aspects of education rather than the administrative operation of the schools. Since denominational rights will be available in all schools and provision is made for uni-denominational schools, similar to separate schools in other provinces the government -
- that is, the Newfoundland government -
- believes it has gone a long way to accommodating the interests of all those affected by educational reform.
I fully support Mr. Grimes' conclusion when he stated that this is a "made-in-Newfoundland, for Newfoundland solution." I support his request that the Senate assess the resolution on its own merits rather than in the context of the historical burdens and shortcomings of other education systems in the country.
(1520)
Let me close with some excerpts from presentations of various organizations who appeared before the committee in Ottawa and in St. John's.
From the Ottawa Board of Education, Ms Linda Hunter, Chairperson, said:
I see the proposed amendment to Newfoundland's education system not as a threat but rather an opportunity to instill hope and growth in a province that will, I think, welcome both.
The representative from the Newfoundland and Labrador Home and School Federation said:
We urge the Senate to pass the proposed amendment to Term 17. We appreciate the Senate's concern for the protection of minority rights, but the issue at stake is not one of minority rights, but rather creating a single interdenominational system in which religion is taught but church influence is reduced. Our only real resource is our children. They deserve no less than the best education we can give them.
The Newfoundland and Labrador Teachers' Association recommend that the change to Term 17 be approved.
The "Yes Means Yes" Committee said:
We don't believe this is an issue of minority rights, but one of education. Ten years of trying to reach agreement has been enough and we believe this is an education issue to be resolved here in Newfoundland and Labrador by our elected provincial government as is its right and responsibility. We look forward to the amendment to Term 17 being passed expeditiously so that we can get on with the enormous challenge facing us in reforming our education system for the benefit of our children and generations to come.
Honourable senators, I will support the motion because I think that the majority of the people of Newfoundland and Labrador believe that reform of their educational system is imperative in this period of declining enrolments and severe financial constraints. On the other hand, I do not support Senator Doody's amendment.
I certainly appreciate the concerns expressed by some senators and by many participants at the committee hearings. It is my firm conviction that the people of Newfoundland truly desire a better future for their children. Hopefully, the proposed amendment to Term 17 will permit the province to improve educational opportunities for all Newfoundland children.
[Translation]
Motion in amendment
Hon. Michel Cogger: Honourable senators, I move, seconded by the Honourable Senator Bolduc:That the motion in amendment be amended by substituting for the words "with the following amendment:" the words "with the following amendments:" (a) and by removing the period at the end thereof and adding the following words:
; and
(b) Delete the words "to direct" in paragraph (c) of Term 17 and substitute therefor the words "to determine and to direct".
Honourable senators, first I should like to thank Senator Anderson for her speech to which I listened with great interest.
I travelled to Newfoundland with Senator Anderson and took part in the proceedings of the committee. I heard the same testimony and the same experts.
Before dealing more specifically with the purpose of my amendment to the amendment, allow me to take a few minutes of your time to mention something that attracted my attention and sparked my curiosity, something you may appreciate as background material.
Early last winter, I believe it was around February, we all received the initial documentation on the issue before us today. A quick perusal revealed an exchange of letters between the then Premier Mr. Wells and the Prime Minister of Canada, Mr. Chrétien.
For any observer interested in the political scene, an exchange of letters between Mr. Wells and Mr. Chrétien on a constitutional subject was likely to spark our interest and even arouse some suspicion.
For a supporter of Meech Lake, I think there was enough material there to warrant a more careful reading. At the time, Premier Wells, who was to resign in a matter of weeks as Premier of Newfoundland, had sought, in an exchange of letters with Mr. Chrétien, the Canadian government's approval of the amendment to Term 17.
Mr. Chrétien immediately gave him his assurances of the government's approval and congratulated Mr. Wells on the fact that, although not required by law, he had asked his fellow citizens for their opinion in a referendum. There was something I found more disturbing. The Wells-Chrétien connection was a signal to think carefully about this. Furthermore, it was a proposal that would in fact create a constitutional precedent, under which the rights of a minority would be withdrawn without the consent of that minority, on the basis of a referendum.
You can see how this might worry a North American francophone. Any minority should be worried. I see Senators Robichaud and Landry, and I think about the Acadians. I think about the Franco-Ontarians. This would set a precedent in that, any time the majority wants something, an amendment would be made even if it is in the Constitution.
This underlies the sad reality that enshrining rights in the Constitution no longer means anything. What would be the use? I have always understood and maintained that the rights enshrined in the Constitution would be protected from the changing moods of the majorities.
So they are now saying that whenever a referendum indicates that the majority wants something, the rights enshrined in the Constitution no longer count. My first gut reaction was to say to myself: no, the Parliament of Canada cannot allow such a thing. Entrenchment in the Constitution is binding. It must be meaningful. Senator Robichaud was here when the Province of New Brunswick decided to become officially bilingual. They could legally do so without the Canadian Parliament's cooperation.
All they had to do was pass a law in their own provincial legislature. That is not what they did. They first passed a provincial law and then asked Parliament to enshrine their resolution in the Constitution, to make it binding so that subsequent governments could not arbitrarily undo what they had done. That is what entrenchment in the Constitution means. As far as I am concerned, that is the only valid reason. Otherwise, Mr. McKenna could have gone ahead without us, at the time. He would, however, have ended up with a more fragile tool that a subsequent government could have changed at will.
This is the principle Mr. McKenna recognized and that we eventually endorsed by ratifying the New Brunswick resolution and then enshrining it in the Canadian Constitution. Today we are told it is no longer the case. This is what it would mean if we endorsed the motion right away and sided with the Newfoundland government by giving them a blank cheque. That, in my opinion, sets a very dangerous precedent. This is where Parliament must step in, and it cannot blindly accede to the wishes of the majority of Newfoundlanders.
I do not doubt the good faith of those who voted for this in Newfoundland; it was a small majority. For the majority to want something is fine, but rights cannot be taken away from the minority just because that is what the majority wants, especially when these rights are entrenched in the Constitution.
To quote the American jurist, Ramsey Clark:
[English]
A right is not something that one gives to you; a right is something that nobody can take away from you. That is a right.
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By that time, I was already worried enough. Then I could see this dangerous precedent coming. Then we had the sad spectacle of a provincial premier, who likes to call himself "Captain Canada," coming here to Parliament Hill.
Senator Corbin: He never called himself that.
Senator Cogger: Everyone else does, and I have never heard of him objecting.
He was here on Parliament Hill actively lobbying members of the Bloc Québécois for support for his amendment. Captain Canada was in bed with the members of the Bloc Québécois. He asked for their support for his amendment to the Constitution. By then, with the suspicious mind that I have, I was even more suspicious.
One weekend, I read every single word that was said in the House of Commons on this matter. They had a short debate of only 12 hours. One ought to read what those fine gentlemen in the other place had to say about this topic. That is one for the books. The sum total of the preoccupation for the welfare of children in Newfoundland of every member of the Bloc Québécois who spoke in favour of this resolution and actively supported Captain Canada could be held in a soup spoon. They do not care about the welfare of children in Newfoundland. All they want is to insert into the Canadian panorama the precedent that a referendum, regardless of how small the majority, carries the day over the rights of the minority. That is all the Bloc Québécois is interested in. I invite you to read the comments they all made.
Does that not tell us something? It should. When I see enemies of my country supporting something actively, I begin to wonder why they would do that. I invite senators opposite to reflect upon the fact that this proposition enjoyed the wholehearted support of members of the Bloc Québécois for a reason. Every Canadian should fear that because we are giving them something that will come back to haunt us, something with which they will hammer us over the head in the not too distant future.
Those are my reasons for taking an interest in the question. Those are my reasons for being so concerned about giving in to the wishes of Premier Tobin. I wholeheartedly support the amendment put forward by Senator Doody because, at the very least, it brings in -
[Translation]
- a constitutional protection against the possible whims of the provincial government in Newfoundland. The expression "where numbers warrant" is a proven expression, an expression rooted in our constitutional tradition, one that the court has used to rein in the lawmakers by setting standards and limits.
It has been said that my amendment was merely a question of semantics, an amendment reflecting this habit lawyers have to use two, three or more words where one would have been enough.
With all due respect to Mr. Binnie, the expert who made this comment about the amendment, let us bear in mind, first of all, that good lawyers, including Mr. Binnie, are not necessarily paid by the word. This is not a question of semantics. We can never be too careful when dealing with the fundamental rights of any individual, we can never be too careful with our choice of words. If it takes one extra word to ensure that a given right is fully preserved, by all means, let us add it, because it does not cost much to add a word.
The effect of the amendment I moved seems to meet the wishes of the Newfoundland legislature. In a letter to the Archbishop of St. John's, Clyde Wells said, and I quote:
[English]
Your lawyer says that the right to "direct" is not a right to determine. He suggests that the right to direct is merely administrative in nature. Our legal advisors suggest that such an interpretation is not reasonable and would not be adopted by the Courts.
In other words, Mr. Wells is not saying, "I do not want the right to determine." I am saying that it is understood to be in there with the right to direct. I say to senators opposite that if you agree that the intent is to direct and determine, let us say that. Why not? It is not very difficult or very costly. Let us throw it in for good measure.
Contrary to Mr. Wells' contention, by the way, the matter has not been decided on that very point. In a matter involving the Protestant School Board of Greater Montreal, the Supreme Court was asked in 1989 to decide whether the right to regulate the course of study included the right to determine. The court found that it did not.
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I say to senators opposite that it seems to me that, from the very first, the intent of the legislature in Newfoundland was that the right to direct and determine be in there. However, they only said "direct." We now argue about whether "direct" also means "determine." I say let us err on the side of prudence. We want to make certain. It is a simple, minor, little amendment. Let us please make it "direct and determine."
Honourable senators, I thank you for your time and your attention, and I invite you to support both my subamendment and Senator Doody's amendment.
On motion of Senator Graham for Senator Austin, debate adjourned.
[Translation]
Excise Tax Act
Bill to amend-Second Reading-Debate Continued
On the Order:Resuming the debate on the motion of the Honourable Senator Di Nino, seconded by the Honourable Senator Beaudoin, for the second reading of Bill S-11, to amend the Excise Tax Act.-(Honourable Senator Corbin).
Hon. Eymard G. Corbin: Honourable senators, on September 26, Senator Di Nino condemned the taxes on books, in his speech at second reading of Bill S-11.
In fact, the problem is not so much the GST on books as it is the very existence of this unfair tax, forced on Canadians by a Conservative government. This bad tax, which invites fraud, has resulted in a considerable increase in tax evasion, while promoting an underground economy based on moonlighting, aggravating the imbalances and complexities of our tax system, worsening and prolonging the recession, and undermining Canadians' confidence in the fairness of government measures. The GST did not even reach its objectives. It has been a disaster.
[English]
Hon. John Lynch-Staunton (Leader of the Opposition): Why do you not abolish it, then?
[Translation]
Senator Corbin: The Minister of National Revenue has already told the Senate Committee on National Finance that the shortfall exceeds $1 billion. In fact, the department does not know precisely how much it is losing because of the underground economy and the black market.
Do not come and tell me that my party did not undertake measures following its commitment regarding the GST.
One has to be objective.
Senator Lynch-Staunton: Replace it.
Senator Corbin: The weakness of the Red Book, assuming there was a weakness, was to underestimate the damage done to the economy under the Mulroney administration. This makes it all the harder for the current government to restore the confidence of Canadians. Here is the relevant excerpt from the Red Book:
[English]
A Liberal government will replace the GST with a system that generates equivalent revenues, is fairer to consumers and to small business, minimizes disruption to small business, and promotes federal-provincial fiscal cooperation and harmonization.
Senator Lynch-Staunton: Did you talk to the retail council?
[Translation]
Senator Corbin: Incidentally, I want to quote another excerpt from the Red Book, because it relates to the comments I am about to make.
[English]
Inadequate literacy skills can have serious economic effects, hindering Canada's ability to train and redeploy its work force to compete internationally.
[Translation]
Out of all the senators opposite, Senator Di Nino is the one who can best swallow his own words. After all, on November 6, 1990, he voted against the amendment moved by Senator Allan MacEachen, then Leader of the Opposition, asking that Bill C-62 not apply to printed materials.
Senator Lynch-Staunton: Who voted in favour?
Senator Corbin: Senators Chaput-Rolland, Beaudoin, Keon, Simard and Lavoie-Roux also voted against it, along with the other Conservative senators, in spite of strong personal convictions. As evidence of this, Senator Chaput-Rolland, who has not stopped writing since leaving the Senate, even felt the need, at the time, to explain her gesture to the media. Believe me, her excuses were pretty lame, and she was rather uncomfortable.
Had these senators shown a little more independence, they would have made responsible and concrete proposals to remedy, ever so slightly, the most obvious aberrations of the GST.
I am not in the least surprised that several of my colleagues are still living this down today. I can understand how they feel. They lacked the courage back then, although to their lasting credit, a few years later, a dozen of them bucked their government's plans regarding cultural institutions and, in 1993, helped to defeat Bill C-93, an act to merge the Canada Council with the Social Sciences and Humanities Research Council and international relations programs of the Department of External Affairs and the Department of External Trade.
Senator Lynch-Staunton: No one disagrees.
Senator Corbin: I remember at the time, and I will read this to you, some of the comments made in the November 6, 1992 issue of the Winnipeg Free Press by a senator whom I will not name, because I still think well of him, but whom I am looking at right now. Remember, these are the words of a Conservative senator from the Mulroney era.
[English]
There's a sufficient number of my colleagues who are fed up with being taken for granted.
The bullying days are over. No longer will the Senate, particularly Tory senators, act as a rubber stamp for their political masters in the prime minister's office.
The days when Harvie Andre, the Government House leader, arrives on a Monday and asks for passage of a bill on Tuesday are finished.
Harvie Andre is just going to have to realize that Conservative senators are not going to be patsies any more.
Senator Lynch-Staunton: Hear, hear! And we are not.
Senator Corbin: He goes on:
If they think so over in the Commons, they had better think twice.
[Translation]
We must also not forget, honourable senators, the about-face of Senator Simard, who initially said on November 15, 1991, and I quote:
Taxing books poses a problem... there must be some form of relief.
So said Senator Simard. This same Senator Simard took a different view 16 months later, and I quote:
Senator Frith is proposing relief for books ... one afterthought after another ... I urge you to refuse to support Bill S-14.
Senator Simard's outrageous pre-electioneering was seen for what it was within his own party: it was received with laughter and ignored.
In the meantime, the Liberals were not idle, either in the House of Commons or in the Senate. On February 10, 1992, Liberal MP Ronald J. Duhamel introduced Bill C-331, an act to amend the Excise Tax Act as it applied to books.
However, on June 5, the House rejected second reading and referral to the Finance Committee of this bill. When I say the House, I mean the House of Commons of the day, with its Conservative majority. The same member came back again on November 25 of the same year with Bill C-377. The Conservatives blocked the two bills, which shared the same objective, making books GST-exempt.
I say this in the context of the bill of Senator Di Nino, who did not budge at that time. He supported the tax measures of his government on books. It seems to me that Prime Minister Mulroney, who was practically on the verge of tears when a primary school child told him that the GST had to be paid on the Bible, missed an excellent opportunity to redeem himself with Bill C-337.
Senator Di Nino said the Liberal senators had said nothing about the GST on reading material since 1993. Is he forgetting my speech, among others? You know I am a humble man, who does not like to quote himself, but in speaking on March 25, 1993 I said the following:
Canadians who are paying through the nose because we have this damned GST on books don't care who scored politically. They just want us to get rid of an iniquitous tax that strikes at what is noble in the individual: his intelligence, his potential and his thirst for freedom.
Later, and again I quote, I reminded people that:
... never in the 125 years since the foundation of this country had a government dared tax books and publications.
It took the Conservatives to do so. What a precedent!
Moreover, our former colleague Senator Frith introduced for first reading on September 23, 1992, Bill S-14, to amend the excise tax act on books. This, unfortunately, went no further because of the subsequent dissolution of Parliament. The subsequent most total drubbing a national party had ever experienced at the polls was, in a way, the manifestation of the profound displeasure of the electorate with the policies forcibly imposed by the Prime Minister, that is to say the artificial padding of the Senate with Conservative senators, once again without historical precedent and leading to a great hue and cry among the voters.
Senator Di Nino has a selective memory. He forgets that, in its January 18, 1994 throne speech, the Liberal government announced concrete steps against illiteracy, including reinstating funding to the literacy secretariat to the tune of $21.3 million, which the previous Tory government had cancelled.
Moreover, Senator Di Nino said in his speech on page 881:
Under the proposed harmonized federal-provincial tax in three Atlantic provinces, books will take on a 15-per-cent combined federal-provincial surcharge.
Did he have a crystal ball when he made that statement? If so, it must have been cracked or cloudy, or was it the bottom of a bottle?
The fact is that on October 23 the Minister of Finance, the Honourable Paul Martin, announced concrete steps to fight illiteracy and remove the tax on books. He thanked the valiant Leader of the Government in the Senate and Minister with special responsibility for Literacy, for her hard work and her advice in this matter. We all know how dedicated Senator Fairbairn is to this laudable cause. We are proud of her. She brings honour to the Senate.
Public libraries, educational institutions, municipalities, charitable organizations, and not for profit agencies involved in literacy will receive a full and complete refund of the GST on all books they purchase. This will allow them to buy and lend more books to more people. They will be able to focus their efforts on illiteracy, instead of being thwarted by the sting of the GST.
Honourable senators, for my part, I would have liked the Minister of Finance to go even further, but once we have brought the deficit under control for good and reformed the current tax system, we will be able to move forward.
Why not exempt all reading material right away? First of all, as I just said, we must deal with the burden of the debt inherited from the previous government. This would be reason enough: It is more important to fight illiteracy and promote learning to read at an early age or relearning at a later stage than to unilaterally remove the tax on all kinds of reading material irrelevant to our needs, our cultural identity and the intellectual development of young people.
There are taxes on Playboy magazine and all the garbage we find on the stands. That tax can be left on. There are taxes on luxury editions that are bought by people who can afford them. They should pay the tax! However, the desire to enrich oneself intellectually should not be penalized.
Senator Lynch-Staunton: There is also the Bible.
Senator Corbin: Yes. The harmonization of the sales tax with New Brunswick, Nova Scotia and Newfoundland was achieved after lengthy negotiations with numerous stakeholders. The Minister of Finance, the Honourable Paul Martin, is rising to the challenge of repairing the damage done by the Conservatives through the introduction of a more transparent sales tax, a level playing field and the negotiation of successful sectoral agreements in a context of enhanced fiscal and social responsibility.
As a result, for instance, that books sold in New Brunswick, Nova Scotia and Newfoundland will be exempted from the harmonized sales tax.
All sorts of gurus, experts and pseudo experts have harped on the theme of the GST on books. Several of them, whom I respect, are sincerely concerned with this issue, even some of my Conservative friends. I agree that it is sometimes difficult to have to wait in order to see realistic and well-advised measures. Others choose the easier route, sarcasm, and Senator Di Nino seems to be one of them.
The fact of the matter is that there is a willingness among stakeholders to arrive at some fiscal and administrative solutions that are honest and open. It is with this in mind, I believe, that many groups of people, municipalities, provincial governments, as well as the cultural and publishing industries have enthusiastically saluted the Liberal government's recent decisions.
It is not over. Indeed, Senator and Minister Joyce Fairbairn is currently pursuing her work with many groups to increase literacy. The Minister of Finance has also urged the federal government to try to reach agreement with other provinces that are interested in harmonizing their tax.
The private bill put forward by Senator Di Nino is a pre-electoral partisan tactic that has become redundant since the statement made by the Minister of Finance, the Honourable Paul Martin.
Senator Lynch-Staunton: Honourable senators, I would like to ask Senator Corbin a question. In view of the fact that he supported the amendment put forward by Senator MacEachen some time ago to exempt all reading material from the GST, in view of the fact that he would have supported the proposal made by Senator Frith to exempt all reading material from the GST, in view of the fact that the bill put forward by Senator Di Nino is word for word what Senator Frith had put forward some time ago, can he explain why he changed his mind so quickly and with so few satisfactory explanations?
Senator Corbin: We had not realized at that time how serious the country's financial situation was.
(1600)
Obviously, if we want to bring the deficit under control, we have to make sacrifices. Ideally, we would want to endorse this proposal. I would not want to advance ideas. I supported total abolition of GST on books, eventually. When I say books, without wanting to act like a censor, I nevertheless establish a parameter that would appear reasonable to everybody. We have worked in the antechambers of power since the Liberal government came to power.
I would be remiss if I did not stress the work done by the Liberal caucus members and by the Liberal Party on this issue. I think we have taken a major step. We have broken the GST icecap of the Mulroney regime. We are moving forward in full light and in an open fashion, honourable senators.
[English]
(1600)
Hon. Mabel M. DeWare: Honourable senators, I should like to make a few remarks on Bill S-11 at second reading. I know my colleagues are anxious to question the last speaker and to have some debate.
Senator Corbin: I do not necessarily favour that.
Senator DeWare: I will begin then, honourable senators.
Recently, the Minister of Finance Paul Martin announced a 100-per-cent GST rebate on books for public libraries and educational institutions, municipalities and qualifying charities and non-profit organizations. This initiative, according to the Minister of Finance, affirms the government's commitment to supporting literacy. For those of us fortunate enough not only to be able to read but to be able to read between the lines, this will do very little to change the present-day situation concerning literacy.
There will be a 100-per-cent rebate on certain books but the present-day government has not instituted that 100-per-cent rebate. Rather it has enhanced an existing provision under the Excise Tax Act, brought down in November 1991, which already allows public sector organizations and charities to claim rebates on GST paid in the course of providing public service.
I can give you an example of that. Universities and public colleges already have a 67-per-cent rebate on GST for all items. With Paul Martin's deal, they will have an additional 33 per cent only on what they have defined as printed books.
School authorities have an existing 68-per-cent rebate on all items. Paul Martin has added another 32 per cent again on "printed books" only. The definition of "printed books" excludes newspapers, specific magazines and periodicals and books designed primarily for writing on, all of which I am sure are very important tools for promoting literacy. I will touch on that later.
Honourable senators, you might well say that a 32-per-cent and a 33-per-cent increase in the rebate is nothing to ridicule, but let us broaden the picture and talk about who will not benefit from these measures. I will argue that, contrary to Mr. Martin's view, this rebate will not assist all those on the front lines of promoting literacy.
We have lost sight of one of the most effective ways of promoting literacy, and that is family. I am sure it will be no surprise to anyone in this room to hear that research proves that the single greatest indicator of the development of a child's literacy skills and the love of learning is having reading materials in the home. However, if I go to a bookstore in Moncton and buy books for my grandchildren, I will be charged the whole amount of the GST. This is unacceptable to me as my province of New Brunswick has the second highest illiteracy rate in Canada. Forty-four per cent of adults in New Brunswick have difficulty reading.
Any educator and specifically literacy tutors will tell you that magazines and newspapers play an important role in developing literacy skills among new learners and young adults. Magazines and newspapers are easily accessible, provide enough relevant content that a reader can find something of interest, and are relatively inexpensive. In fact, both magazines and newspapers are predominantly the first choice of reading material for young people and new learners as well as for many literacy organizations.
My province, to its credit, will not charge any PST on any books, but my federal government, which wants to promote international competitiveness and propel Canada into the 21st century, will penalize me. Worse yet, many who are less fortunate, who are often seeking improved literacy skills, will be discouraged from buying books for themselves and their children.
Our international competitors, such as the United States, Japan, Ireland, Mexico and Australia, have proven their commitment to promoting literacy by refusing to tax reading. Recently, the European Parliament voted to remove all taxes from reading materials as an investment in their country's future. UNESCO, the United Nations Educational Scientific and Cultural Organization, has even asked Canada to take the GST off all reading materials.
In addition, the average post-secondary education student spends between $600 and $1,000 per year on books. These students, who are already faced with the rising tuition fees and decreased employment opportunities, will be forced to carry the burden of paying the full amount of the GST on their course books. Will this encourage life-long learning?
I am surprised that my province is not more concerned about the remaining tax on books. I have a feeling it will hit but too late. The remaining tax on books will also adversely affect the maritime identity because of its negative effect on authors and local books. Taxes on books mean fewer books sold. Fewer books sold make it more difficult for authors to survive. If there is less material coming out of the region, then there will be less knowledge about the region in this country. This in turn will affect tourism and economic development.
The response to my concerns by the other side is usually that they did not bring in the GST. My response is simply that we did not promise to get rid of it, nor did we change our minds and promise to harmonize it once we realized it was generally well designed and effective. However, you did stress the need to refine the GST and with that I will not argue.
The Liberal attempt to harmonize the GST with provincial sales taxes is not becoming more efficient but more complex. Last week it was announced that under the new system in Atlantic Canada there will be tax-included pricing, but in the rest of the pricing GST and PST will still be tacked on at the cash register. This will have a tremendous effect on retailers and ultimately all Atlantic Canadians. The tax included in the price will cost millions of dollars. Retailers will have to change 60 different types of systems, including parts, catalogues, distribution, credits, and the list goes on, in order to allow pricing for provinces with tax included and tax excluded. No one but retailers can fully appreciate the complexity of this kind of change.
Suppliers of major retail chains and franchises ticket all merchandise before they send it to the stores. The new system will require retailers to interrupt distribution in order to re-price items for Atlantic Canada before they can be put back into the system. Those smaller retailers who have spent the money to update their technology will have to abandon modernity and return to the 1950 pricing type. Large retailers who have catalogues and national ads will now be expected to produce catalogues and ads with two different types of pricing. In our bilingual country, this will mean four different catalogues. Four different ads must be produced. The cost will be enormous.
The Retail Council of Canada estimates that it will cost retailers about $100 million a year to maintain the new system. Senator Comeau must have heard the same information that I have heard. Part of these costs will ultimately fall to the consumer.
I must stress that no one is claiming that tax-included pricing is wrong. I know the majority of the population would like to know the price before getting to the cash register. However, there is absolutely no economic sense in imposing one type of system in one region of Canada and not in the rest of Canada. Finance Minister Paul Martin has already admitted that we may never have harmonized taxes across the country and that there may be a need to have a different deal according to the different regions' circumstances.
If it is already so difficult to implement a dual system of taxation in Canada, can honourable senators imagine a system that will handle different systems in five different regions? Clearly this decision of the Liberal government is purely political in order to claim they fulfilled yet another promise.
It is plain to see that it would be better for all Canadians to wait until the other provinces sign on to harmonization before they implement a tax-included system. At the end of the day, tax-included pricing for New Brunswick, Nova Scotia and Newfoundland will cost jobs. Retailers who cannot withstand the change will be forced to close down. Once again, the government agenda will hurt the average family struggling to survive.
(1610)
Forgive me, honourable senators, for straying off the topic of the GST on books, but the potential effects of harmonization have become so overwhelming that I am concerned that my fellow Atlantic Canadians do not understand the ramifications of this agreement. When all is said and done, I want to look out for those Atlantic Canadians whom this will affect most. At this point, honourable senators, I have more questions than answers.
On motion of Senator Bosa, debate adjourned.
Broadcasting Act
Bill to Amend-Second Reading-Debate Continued
On the Order:Resuming the debate on the motion of the Honourable Senator Whelan, P.C., seconded by the Honourable Senator Losier-Cool, for the second reading of Bill C-216, to amend the Broadcasting Act (broadcasting policy).-(Honourable Senator Bolduc).
Hon. Finlay MacDonald: Honourable senators, I thank Senator Bolduc for allowing me the opportunity to speak to this item on the Order Paper, which is adjourned in his name.
Honourable senators, I spent the majority of my adult life in the broadcasting business, very happily. I was never in the cable business, so if you think that I speak with authority about the cable business, disavow yourself of that thought.
Senator Gigantès: An honest man.
Senator MacDonald: I have never had a share or financial interest in any cable undertaking, a statement I make with a great deal of regret. However, I have tried to follow the changes in the television broadcasting business over the years and have come to the conclusion that broadcasters, such as Senator Graham, Senator Poulin and perhaps others here, were really in the business of sending smoke signals compared to the enormous advances that have been made in the last number of years. It is extremely complicated, but I have tried to keep up with it. There are certain things about this bill that have captured my attention.
From time to time, we senators speak to various groups and forums explaining the role of the Upper Chamber. At times, we are asked to give specific examples to illustrate exactly what we do. Should honourable senators wish to have such an example, an example that would give meaning and importance to what we mean by the overused phrase "sober second thought," you have to look no further. You have one today.
On September 25, a private member's bill was passed by the House of Commons and referred to this chamber. It is Bill C-216. This legislation would prevent cable companies from using or reusing an unpopular marketing technique known as "negative option." This legislation would prohibit cable companies from billing for a new package of services without the consumer's prior consent.
On the face of it, honourable senators, the bill is commendable, responding to the widespread public outrage in January of 1995 that caused many consumers to protest to their members for remedial legislation. However, the enthusiasm with which the honourable members of the other place responded exceeded their insight. It is now for us to consider what they have done.
The first caution was expressed by Senator Jean-Robert Gauthier in a statement to the Senate on September 26. This was several days before the sponsor of the bill moved second reading. Said Senator Gauthier:
My point is that we do not ban an undesirable practice by introducing another that is equally undesirable. I therefore urge you to consider your role as senators and protectors of minorities and to consider all the consequences before making your decision.
Then at second reading on October 22, Senator Hervieux-Payette also expressed her concerns about what she termed the irreparable harm that would be caused to the French language distribution system in Canada. Before we examine her concerns, honourable senators, it should be noted that under the old system and the controversy over negative optioning, the popular services on what we call the "basic service," in effect introduced new and unknown services for a period of time to allow the consumer at least a chance to view them and to decide whether they wanted them. This technique was successful in introducing and launching new services.
The problem arose when consumers were billed for the introductory period without their prior consent, and the onus was placed on the consumer or the subscriber to cancel the extra billing. Otherwise, the billing would continue. That became known as the negative option.
Honourable senators, let us return to the concerns expressed by Senator Hervieux-Payette. She said:
The distinct society concept is particularly apt here. The purpose of Bill C-216 may be praiseworthy as such and eminently desirable for provinces where the English language is used by the majority. The issues are both cultural and commercial. The market for French-language television is far too small and its viewers far too dispersed across Canada to withstand the impact of the passage of this bill.
Reminding us of section 3 of the Broadcasting Act, she continues:
...we have already recognized the principle that the French-language broadcasting system differs in its characteristics and needs from the English-language system. We have recognized the principle. It is now time to recognize what it means in practical terms.
Honourable senators, the current wording of Bill C-216 would prohibit any new services from being added to a basic or existing package and the cost being raised accordingly. If this bill were enacted, for instance, small cable operators would no longer be able to introduce new cable programming services unless virtually every subscriber in the community had agreed to receive it. Otherwise, it would be considered negative optioning. This is hardly likely.
What we know in English Canada as CBC Newsworld has its own but unique counterpart in French Canada as RDI - Réseau de l'information. Under Bill C-216, francophones outside Quebec will not have access to RDI and subscribers within Quebec will not have access to four French services recently licensed by the CRTC. I would like to name them. The first is Le Canal Nouvelles - French headline news; Le Canal Vie - French life, health and outdoor life; Musimax - French music; and Teletoon, animation programming in both French and English.
For that matter, any new service in English would suffer the same fate. This bill could place a perpetual freeze on the programming services currently offered to Canadian cable subscribers. It could also dramatically limit the manner in which cable operators and competitive Canadian distributors of programming respond to changes in the constantly evolving Canadian broadcasting system.
(1620)
This cannot be. Bill C-216 screams for an amendment that would allow the French news service RDI or, for that matter, any new service in either language, to reach consumers without negative optioning.
The present amendment to this bill is deficient because it does not reflect the way in which the cable industry operates. The amendment makes reference to the provision of a new programming service - "service" denoting a single thing. Cable companies do not sell individual services. They sell packages, or what they call tiers of services.
It would be better if the amendments were to provide that the distribution undertakings "should not demand or receive payment for the provision or sale of a new package of programming services." That would achieve the goal in the real world in which the cable industry operates. As well, it would do so without unduly and unnecessarily preventing cable operators from making minor adjustments to their packages to respond to ever-changing consumer demands, from introducing new popular or culturally relevant services, or from continuing to expand the service options available to consumers in smaller communities. Let me make it very clear that such an amendment would indicate that the newly licensed specialty services would be marketed on a positive option basis.
I am confident that a similar amendment will be moved either in this chamber or in committee. As a matter of fact, I was of the opinion that this bill should not pass second reading, as that constitutes approval in principle. However, I abandoned that thought because of the possibility of procedural problems and, more important, because such a procedure at this point might disallow senators the opportunity to speak as second reading debate continues.
As the debate continues, I become more conscious of the last paragraph in Senator Gauthier's letter to all senators, under date of October 22, in which he stated:
Health permitting, I intend to speak in the debate in the coming weeks. In the meantime, I urge you to oppose Bill C-216, which, however commendable on the surface, threatens francophone cultural survival.
This unilingual Anglophone agrees.
On motion of Senator Berntson, for Senator Bolduc, debate adjourned.
Canada's Constitutional Monarchy
Inquiry
Hon. Anne C. Cools rose pursuant to notice of Thursday, May 30, 1996:That she will call the attention of the Senate to Canada's constitutional monarchy; and to the history of the sovereign's representative in Canada, namely, the Governor General; and to the historic and constitutional principle that in a constitutional monarchy the sovereign does not enter the lower house; and to the presence of His Excellency the Governor General in the House of Commons chamber on Wednesday, May 29, 1996.
She said: Honourable senators, I rise to speak to this inquiry today, which is its last allotted day on the Order Paper.
On May 29, 1996, there had been a gathering in the House of Commons chamber, attended by the Governor General, the Prime Minister, the Senate and House of Commons Speakers, current members of the Senate and the House of Commons, and former members of both Houses. This occasion's worthy object was to pay tribute to former parliamentarians of Canada, both senators and commoners. I laud all efforts to honour those who have served Canada as members of Parliament. I also laud the commitment of the Speakers of both Houses, the Honourable Gildas Molgat and the Honourable Gilbert Parent, to honour former parliamentarians.
Honourable senators, the Upper House of Canada, the Senate, is the only House of Parliament in which all three estates of Parliament may assemble, being Sovereign, Senate, and House of Commons. In fact, the Clerk of the Senate is properly titled the Clerk of the Parliaments and the Clerk of the House of Commons, the "Under Clerk" of the Parliaments. The three estates of Parliament assemble for royal assents, throne speeches, and other regal and vice-regal occasions. The Senate is the House of Parliament for such assemblies.
Canada is a constitutional monarchy founded in 1867 after considerable debate on the form of governance and the form of nation state that Canada should take. The Fathers of Confederation deliberately chose a constitutional monarchy with responsible government, believing it to be superior to the republican form of France and the United States of America. Canada's head of state is the Queen, and its head of government is the first minister, known as the Prime Minister.
The Fathers of Confederation, framers of our Constitution, had intended that Canada be actually named a kingdom. John Farthing, author of the book Freedom Wears a Crown, tells us that the fourth draft of the British North America Act revealed this, saying:
The word `Parliament' shall mean the Legislature or Parliament of the Kingdom of Canada.
The word `Kingdom' shall mean and comprehend the United Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick.
The word `Privy Council' shall mean such persons as may from time to time be chosen, summoned by the Governor General, and sworn to aid and advise in the Government of the Kingdom.
En passant, the term "dominion" was drawn from the Bible, as was Canada's motto "from sea to sea". Psalm 72, Verse 8 of the King James version reads, "He shall have dominion also from sea to sea, ..." The term "dominion" replaced the term "kingdom" in the draft British North America Act 1867, as enacted in the United Kingdom's Parliament in 1867. About this, Sir John A. Macdonald recounted in an 1889 letter to Lord Knutsford that:
This would probably have been the case, had Lord Carnarvon, who, as colonial minister, had sat at the cradle of the new Dominion, remained in office. His ill-omened resignation was followed by the appointment of the late Duke of Buckingham, who had as his adviser the then Governor-General, Lord Monck - both good men certainly, but quite unable, from the constitution of their minds, to rise to the occasion.... Had a different course been pursued - for instance had united Canada been declared to be an auxiliary kingdom, as it was in the Canadian draft of the bill, I feel sure (almost) that the Australian colonies would, ere this, have been applying to be placed in the same rank as The Kingdom of Canada.
In the postscript to this letter to Knutsford, Sir John A. explained:
On reading the above over I see that it will convey the impression that the change of title from Kingdom to Dominion was caused by the Duke of Buckingham. This is not so. It was made at the instance of Lord Derby, then foreign minister, who feared the first name would wound the sensibilities of the Yankees.
This letter was recounted in Sir Joseph Pope's 1921 book, Correspondence of Sir John A. Macdonald.
The Preamble of the Constitution Act, 1867 recites these sentiments saying:
...the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:
Honourable senators, the Fathers of Confederation intended a government dedicated to "Peace, Order and good Government" to quote from section 91, British North America Act, 1867. The federal Lower House of Canada was styled the House of Commons, the only Lower House outside of the United Kingdom jealously permitted to do so.
In constitutional monarchies, it has been held for centuries that the Sovereign may not and does not enter the Lower House. The House of Commons, unlike the House of Lords, had historically asserted the privilege and power that the Sovereign not enter their House. The only monarch to disregard this was Charles I, who did so with force of arms. The January 4, 1641 Journals of the House of Commons inform that Charles I:
...did come to the House of Commons, attended with a great Multitude of Men, armed in a warlike Manner, with Halberds, Swords and Pistols; ...
Charles I was unable to arrest the five members of the House of Commons for High Treason, as he had intended to that day. Upon Charles I's demand, Speaker Lenthall fell to his knees, uttering these historical words:
May it please Your Majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here; and I humbly beg Your Majesty's pardon that I cannot give any other answer than this to what Your Majesty is pleased to demand of me.
In response, King Charles I gave his equally famous reply:
Well, I see all the birds are flown. I do expect from you that you shall send them unto me as soon as they return hither. If not, I will seek them myself, for their treason is foul and such as you will thank me to discover.
(1630)
Charles I was the first and the last Sovereign to cross the House of Commons' bar. Charles I also attempted to reclaim the Mace, but the Commons successfully thwarted his efforts and kept it. Shortly after these encounters, civil war ensued. King Charles I lost the war, was tried at Westminster Hall, and was beheaded in 1649.
This civil war, the struggle between Parliament and Stuart King Charles I, the ascendancy of Britain's most dubious historical figure, Oliver Cromwell, the Lord Protector, the Restoration, and finally the Glorious Revolution of 1689 and its profound parliamentary statute, the Bill of Rights 1689, and the later Act of Settlement 1701, settled the question of Parliament's privileges and powers and supremacy for all time. These political events settled the constitutional relationship between the sovereign, the executive and Parliament and established a constitutional monarchy, that is, government by the Crown in council, with the advice and consent of the Crown in Parliament; that is, all government by the sovereign in constitution and the rule of law.
The Sovereign or his representative would never again enter the Lower House, the House of Commons, for parliamentary, social, recreational or ceremonial purposes. The sovereign's representative has, and should always use the Upper House. In Canada, this is the Senate chamber. The sovereign's representative may also attend and debate in this chamber, and is also expected to attend in the Senate chamber to mediate conflict between the political parties when necessary. Honourable senators, the establishment, constitution and composition of upper houses in British territories and colonies were always known to be difficult constitutional tasks.
On Wednesday, May 29, 1996, at the celebratory assembly in the other place, the Governor General, His Excellency Roméo LeBlanc, stated that:
I am honoured to be here. I am also lucky that you let me in. I got into the other place to read the Throne Speech, but this is my first visit to this side of the great hall. And keeping the Governor General out is one symbol of your power and the power of the people.
His Excellency noted the novelty of his presence there. In particular, he noted that the prohibition of his entry to the House of Commons chamber is one of Parliament's powers, is symbolic of the Canadian people's power and is symbolic of responsible government's representation by population in the House of Commons.
I know not how or why this practice has been altered in Canada, or if the constitutional consequences of this alteration have been considered. However, the reasoning underlying this change to an ancient constitutional principle has been founded on the bald assertion that the prohibition of entry to the Commons was never absolute, being conditional on the House of Commons not sitting and the Mace not being on the table. In short, Canada's Governor Generals have been mistaken for 129 years in that they have always been permitted entry to that chamber under certain conditions, which have only now been revealed by those who made this assertion. They say that the Mace is an essential part of Parliament's regalia, without which the House of Commons is not constituted and no proceedings may take place. They also refer to the great parliamentary authority John Hatsel's statement:
When the Mace lies upon the Table, the House is a House; when under, it is a committee; when out of the House, no business can be done.
Philip Laundy cites this statement in his book An Encyclopaedia of Parliament. All this, though true, is incomplete and insufficient.
Honourable senators, the sovereign's representative's sovereignty is embodied and omnipresent in his being, in his very existence. The symbols of sovereignty only reflect his power and authority. The House of Commons' Mace cannot impair, lessen or alter the Sovereign's person or his sovereignty. About the sovereign, parliamentary proceedings and parliamentary maces, Philip Laundy, former clerk assistant of the House of Commons, in his 1972 book An Encyclopaedia of Parliament, informed:
If the Sovereign is present in person upon any formal occasion outside the House of Lords, as when King George VI attended Westminster Hall for the opening of the new Commons Chamber in 1950, the Mace is covered with a cloth, the symbol being unnecessary in the presence of the actual authority. If both Houses attend a state function together the House of Commons Mace is covered in the presence of the House of Lords Mace, signifying that the royal authority in Parliament is transmitted through the medium of the upper House. In the presence of the Sovereign herself both Maces would be covered.
The Sovereign is the fount of power and authority in Canada. When present, the sovereign's person and authority supplants and supersedes all symbols of himself, and all other authorities. Once commissioned and installed, the Governor General of Canada is in essence the sovereign in Canada. This constitutional fact was achieved by the 1947 Royal Letters Patent signed by His Majesty King George VI on the advice of then Prime Minister, William Lyon Mackenzie King. The presence of the Governor General, in assembly with the Speakers of both Houses and the current senators and the commoners, is Parliament assembled, a summoning of which is a function of the sovereign's power embodied in his person as the Sovereign's representative, the Governor General of Canada.
For reasons not revealed to the Senate corporately, some have relaxed past prohibitions, principles and certain privileges, powers and rights of the Senate, particularly in regard to the Senate's rights and privileges as the Sovereign's chamber, the Upper House. In addition, senators should be mindful that Canada's House of Commons is constituted as a unitary chamber of a unitary state like the United Kingdom's House of Commons, whereas the Senate is constituted as the chamber of the Federation of Canada. The Senate in the Constitution Act 1867 embodies the principle of Confederation in its constitutional powers, in the method of selecting senators, and with the senators' requisite domicile in the regions. The Senate of Canada is both the federal and the parliamentary Royal Chamber of Canada. I deeply regret this deviation and relaxation, and urge honourable senators to reflect on it. These matters are most solemn and deserve study. I sincerely believe that many Canadians share my concerns and am deeply disturbed by the fundamental changes to the nation's institutions, advanced as innocent changes and inconsequential trifles. These are changes to our Constitution and to our form of parliamentary governance. I note that the program for the Commemoration of the History of Parliamentary Service in Canada on May 29, 1996 renamed the House of Commons chamber the Great Hall of Parliament. I also note that the Speakers of both Houses, the officers, the Gentleman Usher of the Black Rod, and the Sergeant-at-Arms were all fully robed for the occasion, as were the staff. Robing is a mark of state occasions. I am also aware of one other occasion when a Governor General, His Excellency Georges Vanier, was present in the House of Commons chamber, the occasion being his speech to the 1965 Annual Meeting of the International Interparliamentary Union on September 8, 1965. This is the precedent upon which they have relied. I note that His Excellency Georges Vanier had also dissolved Parliament earlier that morning of that very day, September 8, 1965. On that occasion, Prime Minister Lester Pearson said to the IPU:
To show you how easily and quietly our parliamentary democracy and our parliamentary institutions work, we have managed to arrange for a dissolution and a general election campaign while you are here.
The fate of Canadian parliamentary democracy is uncertain. Political parties, an essential element of our democracy, are under stress. The role of both in the maintenance of civil society is unclear. Many express fears. I do too.
I shall conclude by citing a great Canadian, Professor Arthur Lower, who wrote prolifically on the efficacy, stability and inherent mysticism of our constitutional monarchical system of government and the liberties and rights it has delivered to Canadians. Of the relationship between Sovereign, the Executive, that is, the Cabinet and Parliament, and of its potential dangers, Mr. Lower in his famous 1958 book, Evolving Canadian Federalism, said:
Most people would content themselves with saying that Canada is a monarchy and that the monarch's ancient attributes give us theory enough: `the King is the fount of justice'; `the King can do no wrong'; etc. But what if the Cabinet became King, with both King and Constitution in its hands?
The prohibition on the sovereign's entry into the Lower House is part of the law of Parliament, the Lex et Consuetudo Parliamenti and a constitutional convention. Constitutional conventions and their maintenance are the business of politicians and parliamentarians. About this, Prime Minister Trudeau, in his 1991 speech at the opening of the Bora Laskin Law Library, University of Toronto, said:
...conventions are enforceable through the political process, the courts should not have engaged even in declaring their existence.
I urge senators to pay attention to these conventions and our role as politicians and parliamentarians in their maintenance.
Finally, I too pay tribute to all the former parliamentarians, some ageing, who delighted in being on the Hill again. It was a pleasure to have them here and to see many of them, some old and dear friends.
Canada's democratic tradition is a rich one. As stewards of these honourable democratic traditions, we have an obligation to pass them onto succeeding generations so that they too can live in peace, order, and good government.
The Hon. the Speaker: If no other senator wishes to speak, this inquiry shall be considered debated.
Adjournment
Leave having been given to revert to Notices of Motion: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 Tuesday, November 5, 1996, at two o'clock in the afternoon.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Motion agreed to.
The Senate adjourned until Tuesday, November 5, 1996, at 2 p.m.