Debates of the Senate (Hansard)

2nd Session, 35th Parliament,
Volume 135, Issue 88

Thursday, April 10, 1997
The Honourable Gildas L. Molgat, Speaker

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• ROUTINE PROCEEDINGS
  • Library of Parliament
    • Annual Report of Librarian Tabled
  • Broadcasting Act
    • Bill to Amend-Report of Committee
  • Canada Labour Code Corporations and Labour Unions Returns Act
    • Bill to Amend-First Reading
  • Goods and Services Tax
    • Removal of Tax from Reading Materials-Presentation of Petitions
• QUESTION PERIOD
  • Employment Insurance Fund
    • Accumulation of Surplus in Fund-Possible Reduction in Premium Rates-Government Position
  • The Environment
    • Compensation for Clean-Up of Toxic Waste from Former U.S. Military Bases-Government Position
  • Canada-United States Relations
    • Current Position of Prime Minister on Free Trade
    • North American Free Trade Agreement-Possible ReNegotiation of Anti-Dumping Dispute Resolution Tribunals-Government Position
  • Intergovernmental affairs
    • Changes to Section 93 of Constitution as Demanded by Province of Quebec-Government Position
    • Proportion of Consensus Required of Quebec National Assembly for Changes to Section 93 of Constitution-Government Position
    • Quebec-Referral of Proposed Constitutional Changes to Parliamentary Committee-Government Position
  • Human Rights
    • Change in Co-Sponsorship of Resolution on China at United Nations-Government Position
  • The Environment
    • Use of Banff Centre for Army Cadet League Training Camp-Government Position
  • Business of the Senate
    • Response to Inquiry Respecting delay in Tabling of Answers to Order Paper Questions
• ORDERS OF THE DAY
  • Canada-Chile Free Trade Agreement Implementation Bill
    • Second Reading
    • Referred to Committee
  • Copyright Act
    • Bill to Amend-Second Reading
    • Referred to Committee
  • Criminal Code
    Department of Health Act
    • Bill to Amend-Second Reading-Debate Continued
  • Criminal Code
    • Bill to Amend-Report of Legal and Constitutional Affairs Committee-Motion to Return Report to Committee-Debate Continued
  • Canada-Japan Inter-Parliamentary Group
    • Fifth Annual Asia-Pacific Parliamentary Forum-Inquiry-Debate Adjourned
  • Adjournment

THE SENATE

Thursday, April 10, 1997

The Senate met at 2:00 p.m., the Speaker in the Chair.

Prayers.

ROUTINE PROCEEDINGS

Library of Parliament

Annual Report of Librarian Tabled

The Hon. the Speaker: Honourable senators, I have the honour to table the annual report of the Parliamentary Librarian for the 1995-96 fiscal year.

Broadcasting Act

Bill to Amend-Report of Committee

Hon. J. Michael Forrestall, for Senator Bacon, Chair of the Standing Senate Committee on Transport and Communications, presented the following report:

Thursday, April 10, 1997

The Standing Senate Committee on Transport and Communications has the honour to present its

 

EIGHTH REPORT

Your Committee, to which was referred Bill C-216, An Act to amend the Broadcasting Act (broadcasting policy), has, in obedience to the Order of Reference of Tuesday, December 3, 1996, examined the said Bill and has agreed to report the same with the following amendment:

Page 1, clause 1: strike out lines 16 to 18 and substitute the following therefor:

"rate is charged,

(B) no distinct separate charge is levied for that service, or

(C) to do so is conducive to the achievement of the objectives of this Act."

Respectfully submitted,

 

LISE BACON
Chair

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Forrestall, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

Canada Labour Code
Corporations and Labour Unions Returns Act

Bill to Amend-First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-66, to amend the Canada Labour Code and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts.

Bill read first time.

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

On motion of Senator Graham, bill placed on the Orders of the Day for second reading on Tuesday next, April 15, 1997.

(1410)

Goods and Services Tax

Removal of Tax from Reading Materials-Presentation of Petitions

Hon. Consiglio Di Nino: Honourable senators, 175 Canadians from the beautiful province of British Columbia join the thousands of others who have already petitioned the Senate to adopt Bill S-11, which would free reading of the burden of the GST. On their behalf, I am honoured to present the petitions.

 

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QUESTION PERIOD

Employment Insurance Fund

Accumulation of Surplus in Fund-Possible Reduction in Premium Rates-Government Position

Hon. Donald H. Oliver: Honourable senators, my question is directed to the Leader of the Government in the Senate. The huge paper surplus in the Employment Insurance Fund is still growing at a rate of more than $100 million per week. This means that, each and every week, the Government of Canada is continuing its policy of collecting over $100 million more than it pays out to unemployed Canadians in the form of benefits.

When will the government make the large reductions in the premium rate required to bring the Employment Insurance Fund back into balance, and stop stockpiling money on the backs of the poor?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, Senator Oliver knows that the government has systematically reduced premium rates since coming into office in 1993, at which time those rates were on a steadily upward climb. The Minister of Finance has indicated that this is a course he would continue to take, as the situation warrants. He has been very careful, in his dealings with the so-called fund, to ensure that there are sufficient resources available for Canadians, rather than risking the fund going into deficit as the cycle revolves. That is the position he has taken. He has also made it clear that he will continue the progress made in reducing the premiums as economic events warrant.

Senator Oliver: It is of interest that the leader mentions only cutting the premiums, because it was her government that also slashed the pay-out rates and cut eligibility, so that many Canadians who would previously have been able to obtain some benefit from the fund now find that they are out of work with no source of income to tide them over while they look for employment.

Canadians pay into the fund, but find that they get little or nothing back; the government just keeps the money. This certainly keeps government deficit figures looking better, but it does nothing for the unemployed Canadians that the fund is supposed to be helping.

If the government does not plan to reduce premium rates immediately and bring the fund back into balance, will it at least put the money to its intended use: that is, either helping Canadians to find jobs immediately or providing them with training to give them a better chance to obtain work?

Senator Fairbairn: Honourable senators, my honourable friend will know that the new employment insurance legislation contains a number of active measures designed to do many of the things that my honourable friend considers desirable, including training, providing a bridge between looking for work and finding a better job, and subsidizing wages. A whole array of measures was included in the new Employment Insurance Act in an effort to meet some of the concerns of which my honourable friend has spoken. A number of measures have also been announced over recent months in the training area.

My honourable friend is speaking about an issue on which he and I have no disagreement. Along with child poverty, although the two are interconnected, the jobs issue is the most difficult and important one in Canada. Although political parties may disagree on how to deal with it, the goal remains the same: that is, to encourage an atmosphere in which the greatest possible number of jobs can be created, offering opportunities to the greatest possible number of people, particularly those who are most disadvantaged.

The Environment

Compensation for Clean-Up of Toxic Waste from Former U.S. Military Bases-Government Position

Hon. J. Michael Forrestall: Honourable senators, my question is directed to the Leader of the Government in the Senate, and deals with the disposal of toxic waste at the former U.S. military base in Argentia, Newfoundland, as well as at other former American military stations throughout Canada.

Colleagues will appreciate how shocked I was, as were thousands of other Canadians, to hear on national television last night that the government had brokered a somewhat secretive deal, to say the least, last fall with our American friends regarding the payment to Canada for the clean-up of all former U.S. bases in this country. It is beyond belief not only that the government would agree to the payment being reduced from the originally negotiated $500 million to $100 million, but that that $100 million would be earmarked to purchase American military equipment for use here in Canada.

It is possible to concede that it may have been as a result of bargaining that the payment was reduced, but it is unacceptable that the Americans should dictate to us how those funds should be spent.

Could the minister explain why the Canadian Broadcasting Corporation had to apply through the Access to Information Act to dredge up this information? Why were Canadians not told of this renegotiated deal? Has the government any justification for it whatsoever?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I should like to get a more detailed answer for my friend than I am able to provide today. It is my understanding that the figure of $500 million U.S. is far in excess of Canada's original request. In the agreement worked out between the two governments, the Americans were asked to provide an equitable contribution to the clean-up of these four former military bases, and the conclusions that were reached satisfied the criteria put forward. Canada will receive some $135 million Canadian, which will offset the environmental remediation required at the four bases.

However, honourable senators, I would prefer to have a detailed response to this question provided by way of a delayed answer to ensure that the information is accurate.

Senator Forrestall: I know of no factual basis for the estimate of $500 million, but it was put forward as a close estimate of the cost of cleaning up these U.S. military bases.

I do not mind receiving a delayed answer, since I do not expect the leader to have all of this information at her fingertips. However, as she was able to dredge up some information this morning, could she provide that before a general election is called, rather than burying it?

(1420)

This is information the Canadian people are entitled to, and it should be forthcoming. I should like to see tabled an outline of what happened, including the terms of reference. We want the whole ball of wax with respect to this deal: Who met whom, where and when? What numbers were thrown out? How did we arrive at $100 million? What was that money to accomplish? In other words, what did we ask to be done to the military sites for $100 million? What military equipment have we purchased or are we intending to purchase with this money?

My suggestion to the leader and to her government is that we tell them to keep their money and not bother coming back again, if that is the way they will continue to treat us, and we will clean up our own mess.

Senator Fairbairn: Honourable senators, as I indicated, I have shared with the honourable senator the information that I received today. I will take his further question and endeavour to get a response as quickly as possible, not knowing when the adjournment date may be. I will certainly ask to receive that information urgently. I cannot guarantee all the details he has requested, but I will ask that any information that is available be provided.

Senator Forrestall: There cannot be anything sacred about that.

Canada-United States Relations

Current Position of Prime Minister on Free Trade

Hon. Pat Carney: Honourable senators, we all recall that, when he was in opposition, the Prime Minister was bitterly opposed to free trade between the U.S. and Canada, that he attacked the Conservative government, impugned reputations and suggested that this would be the most devastating thing that could happen to the country. Now we see that he has become a convert to free trade, as indicated during his trip to Washington.

Can the Leader of the Government explain the reasons for his flip-flop? Why has the Prime Minister now decided to support the position of the Progressive Conservatives on the issue of free trade? Is it because trade has increased dramatically between the two countries, as our government said it would? Is it because we have had a phenomenal increase in exports? What would explain this conversion to free trade compared to his stand before the last election?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I would refer to the Prime Minister's own remarks while in Washington. He discussed the trade picture in the context of the desire to expand trade agreements throughout the Americas, as indeed we are attempting to do through the bill presently before the Senate dealing with Chile.

While in Washington, the Prime Minister acknowledged that he was skeptical, as were many others, about the free trade agreement with the United States, particularly the bilateral nature of the agreement. He identified four or five areas that he wanted the Americans to append to the agreement when this government came to power.

Senator Berntson: That includes the environment.

Senator Fairbairn: My honourable friend is accurate in saying that there has been a tremendous explosion of trade between the two countries. The Prime Minister, from the time of the conference in Miami in December of 1994, has been a leading proponent of expanding the bilateral nature of a trade agreement with a country of disproportionate size to Canada to Mexico and Chile. In Washington he was talking, as was the Minister of International Trade, about expanding as quickly as possible through the major trading countries in South America.

That theme has been also at the core of the other missions that the Prime Minister has personally headed into various areas of Asia in the last few years. We want Canada to be as productively involved as possible with partners throughout the world, rather than dependant on our richest and closest neighbour.

Senator Carney: Honourable senators, the Prime Minister has simply reminded Canadians that he was wrong on the issue of free trade. He has been wrong on many important issues to Canadians, and he will be wrong in the future on other issues.

North American Free Trade Agreement-Possible ReNegotiation of Anti-Dumping Dispute Resolution Tribunals-Government Position

Hon. Pat Carney: Honourable senators, subsidies, anti-dumping dispute resolutions and energy are subjects with which I am familiar since I was Minister of International Trade when we negotiated the agreement in principle with the Americans. In the Red Book, the Liberals promised to renegotiate these aspects in NAFTA.

This has never happened. Since this is another broken promise and NAFTA was implemented essentially unchanged by the Liberal government, could the Leader of the Government please explain why her government did not meet the time lines for dispute resolution, anti-dumping and subsidies which were laid out in the free trade agreement?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, as I have said to Senator Carney - and she can use whatever adjectives she wishes - the Prime Minister was forthright in his comments in Washington when he spoke about this issue.

Senator Carney: He was wrong. He admitted he was wrong.

Senator Fairbairn: Honourable senators, if Senator Carney wants to call him wrong, she may. The Prime Minister has said that he was skeptical -

Senator Carney: He said it, not me.

Senator Fairbairn: - as were many others about the free trade agreement. He has acknowledged that.

Senator Berntson: He said he made a mistake.

Senator Fairbairn: I am not arguing with you. I have said that -

Senator Lynch-Staunton: It is in the Red Book.

Senator Fairbairn: He was sceptical, like many others, about the free trade agreement in Canada.

Senator Doody: Unnecessary election!

Some Hon. Senators: Oh, oh!

An Hon. Senator: This is getting very partisan.

Senator Fairbairn: If I could get a word in edgewise, I would simply say -

Senator Carney: The Liberals cannot explain this diversion.

Senator Lynch-Staunton: History is full of contradictions, Liberal contradictions.

The Hon. the Speaker: Order! Honourable senators, some may believe that we are in a pre-election period, but we are still in Question Period in the Senate.

[Translation]

Intergovernmental affairs

Changes to Section 93 of Constitution as Demanded by Province of Quebec-Government Position

Hon. Jean-Claude Rivest: Honourable senators, my question is for the Leader of the Government in the Senate. Does the Government of Canada intend to follow up on the request by the Government of Quebec, with the backing of the entire Quebec National Assembly, concerning the linguistic school boards? Will it follow up on the request by the Government of Quebec and amend section 93 of the Constitution of Canada?

[English]

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, other than to say that the addition to the measure, which I believe was put forward before the National Assembly yesterday, is a positive gesture, the government is awaiting the results of the vote in the Quebec National Assembly before it makes a definitive statement on this issue.

[Translation]

Proportion of Consensus Required of Quebec National Assembly for Changes to Section 93 of Constitution-Government Position

Hon. Jean-Claude Rivest: The consensus of the National Assembly is very significant and will be made known to the Government of Canada next week. Is it the intention of the Government of Canada to require a very broad consensus from Quebec for there to be a constitutional amendment creating linguistic school boards, while the same government has done the same for Newfoundland on the basis of a referendum which was nearly a 50-50 split. Why is consensus required for Quebec, when it was not for Newfoundland?

[English]

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the minister involved, Mr. Dion, has noted on a number of occasions the words of the Quebec minister, Mr. Brassard, in indicating that it is most important to have a broad consensus within the anglophone community in Quebec on this issue. Obviously, significant efforts are being made in that direction. We will await the outcome of the vote in the National Assembly of Quebec before the government makes a definitive comment.

Quebec-Referral of Proposed Constitutional Changes to Parliamentary Committee-Government Position

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, will the minister agree that the definition of consensus through a parliamentary vote, by itself, is not reassuring? Since the Quebec government refuses to have public hearings on this issue, will the minister concede that, should it come to that point, the government will agree that either the House of Commons or the Senate will hold public hearings?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I cannot answer that question today. I will take it to my colleagues and request a response.

Human Rights

Change in Co-Sponsorship of Resolution on China at United Nations-Government Position

Hon. Consiglio Di Nino: Honourable senators, it has been reported that the Prime Minister might drop his long-standing and traditional co-sponsorship of a UN resolution condemning human rights abuses in China. This has been reported in a number of newspapers across the country. It is an issue about which I have spoken before, and it is one that disturbs me deeply.

If these reports are true and the Government of Canada will not co-sponsor a UN resolution condemning human rights abuses in China, how far will this government go to prostitute itself on the economic altar by forgetting the values and principles upon which this country was built?

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, the question Senator Di Nino asks me today is similar to the series of questions asked of me yesterday by the Honourable Senator Andreychuk. I undertook to pass on those questions directly to my colleagues upon their return from Washington, and I did that this morning. I have no answer to give my honourable friend today.

It was indicated in Washington that the government would be discussing the issue of the motion within the context of changes that have taken place. The case was put eloquently by Senator Andreychuk yesterday. That was communicated this morning by myself. I await the outcome of further discussions.

Senator Di Nino: Honourable senators, last Saturday night I attended a fund-raising meeting on behalf of Martin Lee, the courageous champion of democracy from Hong Kong, who finds himself in Canada and in Ottawa, looking for an opportunity to meet with someone of authority in the government, such as Mr. Axworthy or Ms Copps. Apparently he is having a great deal of difficulty in being received by a minister of the Crown. Either the Prime Minister is too busy to see him, or he has refused to see him.

Will the minister use her influence with her cabinet colleagues to obtain for Mr. Lee an appointment with one of the ministers with whom he wishes to speak?

Senator Fairbairn: Honourable senators, I will certainly transmit Senator Di Nino's requests and comments to my colleagues.

Hon. A. Raynell Andreychuk: Honourable senators, if the decision on whether or not to co-sponsor the resolution concerning human rights in China has not yet been made, can the minister tell me on what basis the decision will be made? What facts will be taken into account that would preclude us from undertaking this action?

I appreciate fully that France may have made its decisions on certain issues. However, that is an internal choice of the government of France. Will the issues be made on trade alone, or will the issues be made on the facts of the human rights issues in China today?

If the human rights record is to be taken into account, then surely the likes of Mr. Lee, Amnesty International, and a host of other Chinese sources would be valuable sources to weigh as to the determination of whether we co-sponsor the resolution or not. Will we use the fact that France has pulled away from the co-sponsorship issue not to join with our like-minded colleagues in continuing to press on human rights issues?

Senator Fairbairn: Honourable senators, as I indicated yesterday, this issue was discussed at other levels while members of the government were in Washington. At this time, I cannot answer the questions of the honourable senator, other than to say that I doubt very much if decisions would be made on one solitary set of circumstances.

In any event, I will pass along the comments of my colleagues Senators Di Nino and Andreychuk with the vigour with which they have been made.

Senator Andreychuk: Honourable senators, if we are looking for guidelines as to how to make assessments on human rights issues in China, will we be taking into account the financial, economic and trade fallout that may result from not supporting Denmark, the United States and the U.K., and simply weigh whether, as China has said, it will use its influence to preclude certain people from trading there? China has already bullied Denmark. Surely we will not yield to bullying.

If we do not co-sponsor this resolution, we might as well leave the Human Rights Commission, because it works on the consensus model. That means we do not let down our like-minded co-sponsors. If we do that, we will destroy what we have been attempting to do since that commission was set up.

I hope all of those factors will be taken into consideration and that we do not simply yield to the implied threats to our relationship with China. China can take the high road with us and join us in the Human Rights Commission. I would appeal to the Prime Minister. This is fundamental to the fabric of Canada.

(1440)

Senator Fairbairn: Honourable senators, I will again add Senator Andreychuk's eloquent comments to the other statements that she has made. I urged her yesterday to understand that the questions she is asking are speculative. I am not prejudging a conclusion.

Senator Lynch-Staunton: Everything is speculative when it is negative.

Senator Fairbairn: I will certainly pass her comments on to a variety of sources.

The Environment

Use of Banff Centre for Army Cadet League Training Camp-Government Position

Hon. A. Raynell Andreychuk: Honourable senators, on a different topic, I have been following the issue of the Army Cadet League of Canada. They have taken their senior training in the Banff area for many years. I know our Speaker is well aware of this. We also bring colleagues from other countries. It is a leadership forum that has worked well. The site is designed for mountaineering and other kinds of training.

There has been a study to determine whether, in fact, that camp should be moved out of its present location. The camp utilizes the space on a minimal basis. In my opinion, it is one use of the Banff Centre that does not affect the migratory nature of some of the species in that area.

I should like to know when that decision will be taken and whether it will be made taking into account the unique nature of this camp, as opposed to tourism activities, its limited use and its importance to the Army Cadet League.

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I am sure all those factors will be taken into consideration. I do not know the time line on this decision. The honourable senator will be aware that an extensive study has been done on one of the most spectacular and endangered corridors in an area of Southern Alberta, with which I am very familiar and which, in many ways, is one of the most beautiful areas in Canada. It has also been one of the most environmentally abused areas in our national park system.

The Bow Valley study was an effort to bring in an expert assessment on how to contain some of the damage that has been done, and on how to provide protection for the future without impeding Banff and the success of tourism in the area. At some point, the environmental concerns about the ecology and the wildlife have to get the attention they deserve.

The camp is an important issue in the solutions that will come out of this study. I know it is being taken seriously, as are all the other areas of the corridor that have been examined. I do not know what the timing is, but I will certainly try to bring my honourable friend up to date. She can be absolutely sure that whatever decisions are taken will be difficult. There is no easy decision in the Bow Valley corridor at all.

There is an urgency to providing protection for the patterns of growth and the migratory patterns of animals and wildlife, which have been severely disturbed in recent years. This encroachment has not only been detrimental to the environment but has also created an element of danger for the public.

All of those circumstances must be taken into consideration and I am sure that provision for continued training for cadets in that area will be carefully studied. I will endeavour to obtain as much information for the honourable senator as possible.

Senator Andreychuk: Honourable senators, my point is not of an environmental nature, although I am very supportive of those issues as well.

My hope is that, in the study and the debate going on around the use of Banff and the environmental concerns there, this particular limited use of a portion of the area by the Army Cadet League will not be lost in the process. The Army Cadet League program is also a valuable program. I hope that issue will not be dealt with as an ancillary matter, but as a major concern in its own right.

Senator Fairbairn: Honourable senators, I believe it is being dealt with in that manner. I am familiar with the purpose of that training camp, and I strongly agree with it. The camp is not being viewed as an ancillary piece of the puzzle, as it were. It is one of a variety of important pieces of the puzzle and will be dealt with, I am sure, with sensitivity.

Business of the Senate

Response to Inquiry Respecting delay in Tabling of Answers to Order Paper Questions

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, I do not have any delayed answers today, but I did want to say, in response to the very legitimate concerns expressed by the Leader of the Opposition, Senator Lynch-Staunton, yesterday, that we have been in touch with the appropriate authorities in the other place with regard to parliamentary replies. We have pressed the case. We hope to be in a position to table some answers as early as next week.

Senator Doody: That would be nice.

Hon. John Lynch-Staunton (Leader of the Opposition): I am sorry, I missed what the deputy leader said. Did he say he hoped to table some of the answers as early as -

Senator Graham: Next week.

Senator Lynch-Staunton: Honourable senators, "some of the answers" is not enough. I insist on this. These questions have been on the Order Paper since last May. Just to say casually, "we will give you some of the answers some time next week" is not responding to the insistence that we have that courtesy be shown and answers be given. What is the problem?

The government is able to answer questions that have been on the Order Paper as recently as a month ago, two months ago, three months ago, but somehow questions that were put on the Order Paper 10 months ago are still unanswered.

Senator Doody: Some are more embarrassing than others.

Senator Lynch-Staunton: Honourable senators, I have reason to feel that there is a deliberate strategy not to give the answers to certain questions. To be told, "We will give you answers to some questions some time next week", I find insulting. We will be forced to get them under the Access to Information Act. We will get the answers faster. The government is showing disrespect to the parliamentary process.

Senator Doody: Introduce a motion of contempt of Parliament.

Hon. Joyce Fairbairn (Leader of the Government): Honourable senators, I fervently hope Senator Lynch-Staunton will not have to resort to access to information to get these answers. In the past 24 hours, as my colleague indicated, we have been trying as hard as we can to pull all of these answers together at once. We still do not have them.

Senator Berntson: We will take them one at a time.

Senator Fairbairn: We intend to have them for the Senate. If we can get some faster than the others at the beginning of next week, we will do so, but our intention is to have the lot.

Senator Doody: How can the public help you get the answers?

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ORDERS OF THE DAY

Canada-Chile Free Trade Agreement Implementation Bill

Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator De Bané, P.C., seconded by the Honourable Senator Losier-Cool, for the second reading of Bill C-81, to implement the Canada-Chile Free Trade Agreement and related agreements.

Hon. Peter Stollery: Honourable senators, I live in the central area of the downtown core of the city of Toronto, ever so slightly to the west, near College Street and Dovercourt Road, the part of Toronto that you all know. In fact, I live not much more than a few miles from where my great-great grandfather lived when he emigrated to Canada in 1861.

(1450)

The acres of empty industrial land that was Massey-Ferguson - formerly Massey-Harris - is a 15-minute walk from my house. I have trouble recalling just which empty former factory did what. Was it the John Inglis factory that made stoves and washing machines, and during the war was famous for making machine guns? Is that vacant five acres on the south side of Sudbury Street where Robert Bury and Son had their yard? I do not think they have been gone for more than 10 years.

Massey-Harris covered more than 100 acres, and from the vantage point of the streetcar stop on King Street at Shaw, the surrounding empty fields in the middle of a great city make a dramatic statement about the times in which we live.

It is not just the large industrial firms which have either moved or are no more, that people talk about - and we do talk about it. Because my neighbours and I often know the failed owner, the empty stores draw a great deal of comment. One nearby gas station was torn down and a new building was put up, which became Beckers. The Beckers closed after six months, the new building was altered and became a restaurant. I am not sure how long the first restaurant lasted, but another owner altered the building yet again, and it became a second restaurant. Then that restaurant also closed, and the building sat empty for one year. Now we are all watching what seem to be further signs of activity at that address.

Across the street, the taxidermist lost his business after many years. The grocery store has been opening and closing, and I noticed the other day that the Variety Store at the corner of Dufferin and College Streets is for sale.

Of course these are just personal observations. They are not proper statistics. However, I phoned the Toronto City Hall and obtained some statistics, which I should like to share with honourable senators.

I was born in the city of Toronto in 1935, which had 650,000 people at that time. The population is about the same today. Of course, there was no Metro Toronto in 1935; no North York, Etobicoke or Scarborough. I do not think that the decline in employment which I am about to describe is caused by the jobs having moved outside the city. Other sections of Metropolitan Toronto actually have considerably higher unemployment than the city of Toronto. Here are some figures from 1987 to 1995, provided by the City of Toronto Economics Department.

In 1987, in the city of Toronto, 49,171 people worked in what we might call the traditional occupations - that is, food processing, textiles, metal products, chemicals, clothing, furniture, machinery, electrical equipment, printing, postal sorting, other manufacturing, warehousing and storage. The figure was 23,853 in 1995. Less than half of those jobs of only nine years ago now exist.

The second category of jobs is described as services - that is, transport terminals, business equipment, lumber yards, wholesalers, auto repairs/service, car dealerships and car/truck rentals. In 1987, 16,132 people worked in those occupations. In 1995, the figure was 14,152. Only about 2,000 jobs had been lost in that sector, but, statistically, that figure describes the closed lumber yards and the "For Rent" signs on buildings formerly used by wholesalers.

There is a third category that is described as "new industrial uses" - that is, photo and graphics, data processing, film/video/audio, radio/TV stations, other media, newspaper publishing and other publishing. In 1987, 30,642 people worked in this sector in the city of Toronto. In 1995, the figure was 28,681 - down by 2,000 jobs.

From 1987 to 1995, the city of Toronto has lost 29,259 jobs. No wonder the assessed value of property has declined for the last three years for the first time since the Great Depression.

Honourable senators, I have picked 1987 to 1995. I could have gone back to 1983, which would have worsened the situation for traditional occupations and improved categories two and three; or I could have used 1985, which makes 1995 look even worse, but I am not interested in selected statistics.

The argument cannot be made that these 29,259 jobs still exist elsewhere in Metropolitan Toronto, or that there has been simply a shifting of industry. There has undoubtedly been some shifting, but the city has an unemployment rate of 8 per cent, which is almost the same as the huge, active area outside Metro stretching from Oakville to Ajax, and up to Lake Simcoe. The rest of Metropolitan Toronto is much worse off than the city, with an unemployment rate of over 11 per cent.

At the outset of my remarks, I mentioned Massey-Ferguson and other departed industrial concerns. When I talked with city officials, I was interested to learn that, until recently, one of the buildings that makes up the TD Centre had been fully occupied by IBM. We are talking here about a 40-storey office building designed by Mies van der Roh. Not one IBM job remains there. From that one building, over 1,000 jobs have gone. I found that instructive.

Many people say that this loss of jobs, particularly in the traditional occupations, has been brought about by the free trade agreement with the United States. There can be no doubt that the well-known concern of Canadians with being simply a "branch plant economy" has been simplified by the FTA. The Canadian subsidiaries are no longer needed. John Inglis was bought out by Whirlpool, and most of the appliance jobs went to Georgia. The numbers are small in each case, but they add up. Approximately 165 toymakers lost their jobs when the Little Tykes Company shut down in Guelph and moved production for the Canadian market south of the border. Epton Industries Inc., parts manufacturers for GM Canada, moved work to the U.S. and 220 workers received permanent lay-off notices. Canvac's head office in Chicago moved its metallized paper production to Greenfield, Indiana, and 60 Ontario workers lost their jobs. This sort of thing is going on all across Southern Ontario, and everyone knows it. They do not see the benefit. It is an issue that some Canadian government will have to face up to, or there will be trouble.

However, honourable senators, the loss of jobs in the traditional occupations started before the free trade agreement with the United States. The reason lies in that much misunderstood term, "globalization." This was pointed out in the 1989 Report of the Advisory Council on Adjustment, chaired by Jean de Grandpré, which stated:

In the opinion of the council there is no doubt that the globalization process of the previous decades will continue and likely intensify in the foreseeable future.

The important words contained in that observation are "globalization" and "previous decades," for globalization has been going on for a long time. What is globalization, anyway? In preparing this paper, I reread the survey prepared by Professor Richard Harris of Simon Frazer University for the Standing Senate Committee on Foreign Affairs in September of 1994. Our committee held a kind of seminar with distinguished witnesses, but when I reread that survey and the proceedings, I felt that we had become too technical. Probably the passage of three years, the problem of persistent high unemployment, and my own observations in Toronto have partly cleared the mists - at least for me.

In my opinion, the word "globalization" is a very bad description of what has actually happened. "Dispersion" is a better word. Companies have dispersed themselves around the world. Mr. Robert Reich, former U.S. Secretary of Labour, explains the phenomenon in his well-known book The Work of Nations: The head office with some managers and employees is in one country; the engineering, design or technological division can be anywhere the expertise exists; and the manufacturing sector, particularly if much labour cost is involved, is in a low-wage country. There is no control on the flow of capital. When the company feels that economies must be made to please the shareholders, manufacturing can be set up in Bangladesh, or the Philippines, or Indonesia, or China. The company has been dispersed.

This process began at least in the 1950s. Robert Reich explains how the re-emergence of European and Japanese competition squeezed the profits of U.S. manufacturing corporations, which forced those corporations to gradually abandon what he calls "The National Bargain" between business and labour.

The Big Change was written in 1952 by Frederick Lewis Allen. In those golden days, Mr. Allen said:

Just as an individual business seemed to run better if you plowed some of the profits into improvements, so the business system as a whole seemed to run better, if you plowed some of the national income into improvements in the income and status of the lower income groups, enabling them to buy more goods and thus to expand the market for everybody.

I started my career as an international globe-trotter by hitchhiking around the Eastern United States in the 1950s. In fact, my first few trips were as a 13-year-old boy, who looked older than his age, during the Truman-Dewey election of 1948. I still remember being shown around the Bethlehem Steel Works in Buffalo by a group of workers who assured me that Truman would win. I astounded my young friends in Toronto with that information when, of course, it was clear to them that Dewey would win.

Who can forget the United States of those days? Woodward Avenue in Detroit was agreeable, filled with busy office workers and coffee shops. Buffalo was famous in Toronto. Everyone went there. I will not talk about Washington, Miami and Baltimore. The places that shock me the most now are the smaller towns: Elmira, Binghamton and Albany, New York; Frederick, Maryland; and Hartford, Connecticut.

(1500)

The jobs started leaving a long time ago, but as competition grew more fierce, the dispersion speeded up. Better communications helped. When I was abroad between 1958 and 1961, I spoke with Canada once by telephone from Nairobi, Kenya Colony. It could be done but it was complicated, and I recall my Nairobi friends and I wondering if the line followed the Nile down to Khartoum. Now the communications are easy. The dispersion is fast and efficient and is called "globalization." The companies that Robert Reich describes as the core American corporations are no longer American.

In 1989 Gilbert Williamson, president of National Cash Register, said:

I was asked the other day about United States competitiveness and I replied that I don't think about it at all. We at NCR think of ourselves as a globally competitive company that happens to be headquartered in the United States.

Is it a coincidence that in the United States in the year 1960, 62.8 per cent of eligible voters voted in that election, and that last November, 48.2 per cent of eligible voters voted - the lowest turnout since women's suffrage in 1920? Does that not represent despair? The breakdown of figures clearly shows that it is the low end of the economic scale, the ones most affected by the dispersion, that keep slipping because they do not elect representatives of their interests. Is that the kind of society we want in Canada?

The Globe and Mail reported a good example of the results of this denationalization on May 22 last year:

The International Union of Electrical Workers, long considered General Motors Corp's most co-operative union is preparing for a major battle with the No. 1 auto maker, union officials say.

That is a sharp change in attitude by the IUE. But union leaders say it has been prompted in part by a GM push to set lower wages for new IUE workers and to shift some manufacturing work to Mexico. In addition, union leaders say, GM is quietly extending the new hard-line labour stance it has taken with the United Auto Workers to the 25,000 IUE workers, most of whom are employed in GM's massive Delphi Automotive Systems part unit.

"We're not dealing with the same General Motors any more," declared Ron Given, the IUE's top GM negotiator. "They're out to make all the money they can, no matter how it affects our standard of living."

The article continues:

While the IUE and the UAW prepare to start national contract talks next month, one IUE local and Detroit-based GM already are negotiating over a plan to shift the jobs of 1,800 workers in Warren, Ohio to Mexico...

Union leaders say what is most troubling about GM's plan is that it pits U.S. auto workers against Mexican auto workers. A new IUE worker in Warren earns an hourly wage of about $11.47. In Mexico, Delphi starting wages range from $1.65 to $4.00 an hour.

In plain English, today, in the United States and Canada, if workers resist too much, their labour can be dispensed with and their jobs moved to another country. Western Europe is resisting, and some observers say that high unemployment is the result. We too have high unemployment, and we cannot easily resist in great measure because we signed NAFTA. Where are those 29,259 jobs? Is this an acceptable price to pay for free movement of capital? Who benefits?

You would think the problem would interest international organizations like the World Bank, the International Monetary Fund and the World Trade Organization, at the very least at their annual ministerial meetings. International capital flows cannot be dealt with by one country. That is obvious.

Let me for a moment deal briefly with Mexico, because Mexico does come up quite often as one low-wage country popular with business and some prominent economists such as Jagdish Bhagwati of Harvard University, who says things like this:

Nonetheless, the popular assumption and demand today is that if your rival abroad has lower environmental and labour standards, that amounts to "social dumping" by him in your market and therefore you should be permitted to impose countervailing import duties. This notion, -

- writes Mr. Bhagwati in the Economic Journal of March, 1994 -

gaining ground in EC and the United States, is based on two obvious fallacies..."

Honourable senators, I will not take up your time with the rest of the argument, because it does not matter. Mr. Bhagwati, a very famous free trader, only deals in theory, and was unaware of what everyone in the world now knows, that corruption reaches the highest level of government in Mexico. Mexico was examined recently by the McKinsey Global Institute. Senator MacEachen may have made reference to this study during the NAFTA debate. I came across it in The Economist in a grudging acknowledgement that all may not be perfect in the global economy.

Honourable senators will know The Economist has become more of a free trade and libertarian tract than a news magazine, and like Dr. Wycherley, "bland and bald," is inclined to "found facts on theories instead of theories on facts." The Economist reported that McKinsey found that Latin American countries had made big improvements in productivity in recent years in steel. Mexico's output per worker rose from 21 per cent of output per worker in the United States in 1989 to 37 per cent in 1993. Yet wage costs have remained less than one-sixth of the United States. The report concluded that Latin American steel firms could quickly reach 80 per cent of American productivity. Wages, on the other hand, will not double overnight.

The Hon. the Speaker: I am sorry to interrupt, Senator Stollery, but your 15-minute period is up. Is leave for an extension granted?

Hon. Senators: Agreed.

Senator Stollery: Thank you honourable senators. Therefore the steel firms' competitive edge could push many American steel workers out of a job. The Economist never talks about things like no collective bargaining, corrupt, government-controlled unions, no independent judiciary, but I am not here to talk about Mexico. You have heard me on that subject. Our jobs are flying away to Bangladesh, the Philippines, China - anywhere that labour is cheap.

In Canada, the de Grandpré report stated:

As the globalization process unfolds, Canadian companies will adopt a variety of strategies, including mergers, acquisitions and other production rationalizations, in order to be in the best position to compete internationally.

This sounds like the United States model, and I do not think that is good enough. I believe that we need much more international discussion than we are getting, because capital flows and dispersion of jobs cannot be dealt with by one country. However, the discussion today is by people who all hold the same view and who control the WTO and the other organizations. What about our society? What about our workers? Our constitutional duty is to Canadians. One of the advantages of the Senate to the public is that, without the day-to-day constituency problems of a member of Parliament, the senator has more time to read and reflect about issues of the day. To quote G.M. Young's Victorian England: Portrait of an Age:

...the advantage, even the necessity, of having somewhere in the state a person beyond the competition for office, who is entitled to be heard in any matter on which he may think it his duty to speak; who has the right to warn, to encourage, and therefore, to be consulted by, the agents of authority.

Chile is not Mexico, but I am against the Canada-Chile Free Trade Agreement. I am not a protectionist, but I oppose the current international free trade agenda because it is damaging to my fellow citizens. In my opinion, it is not in their best interests.

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 De Bané, bill referred to the Standing Senate Committee on Foreign Affairs.

[Translation]

Copyright Act

Bill to Amend-Second Reading

On the order:

Resuming debate on the motion of the Honourable Senator Gigantès, seconded by the Honourable Senator Moore, for the second reading of Bill C-32, to amend the Copyright Act.

Hon. Normand Grimard: Honourable senators, technology is evolving faster than the law. For example, even if disk jockeys still say they are going to "play" a hit on the air, everything is done by computer now: as a result, an intermediate copy of the record has had to be made. Nor could we foresee thirty years ago the widespread use in offices of photocopiers, or in our homes and elsewhere of the audiocassettes invented by the Philips company. Such a cassette was to become, a few turns down the road, an extraordinarily popular tool for copying recorded music. In The Economist on December 14, 1996, and in La Presse the following March 19, I was also reading articles on ways of protecting copyright on the Internet. However, I admit that the legislator cannot refuse to take action because of the complexity of the subject, and that is why the government is today introducing Bill C-32, to amend the Copyright Act.

What sort of numbers are we talking about? In Canada, this sector contributes some $16 billion to the economy, and employs close to 670,000 people. This right enables creators to keep the moral rights to the integrity of their works and to receive royalties when those works are later performed. Copyright normally runs for 50 years plus the lifespan of the creator, except in the case of photographic images, where the limit is 50 years because of the deterioration in quality.

A large part of administering copyright for artists is done through managing collectives. Since these collectives are so well known to those in the field and rarely defined in everyday language, I found that their intervention only added to the technical nature of the bill.

[English]

Bill C-32 was universally criticized even before it was reported back from the House of Commons committee with 123 amendments - 76 of which had been hastily approved on December 12, the last day of the committee's study.

Bill C-32 introduces new levies and pits the creators of artistic material against the users, who are not prepared to pay more for using artistic creations during these tough economic times. The artistic community itself is deeply divided.

[Translation]

Just to show what a traditional concept we are dealing with, the Copyright Act dates back to 1924. It was revised for the first time in 1988 under the Conservatives; Bill C-60 concretized part of the white paper entitled "From Gutenberg to Telidon," presented under the Liberals in 1984. This reform abolished the controversial compulsory licence and extended copyrights to computers. The Conservatives reserved the other part of the copyright review for later on.

Bill C-32, read for the first time in the House of Commons on April 12, 1996, represents the second phase of this reform and is a major transformation.

The bill as tabled differs from what we have in front of us, as the result of the amendments made by the Commons committee. In particular, the role of collective societies is given more recognition, wherever these exist. Broadcasters were given some rights over ephemeral productions, although not as much as they had asked for. A significant delay in implementation has been reduced from five years to three; this we will come back to later. A lengthy list of exceptions in the original Bill C-32 has been reduced to more normal proportions, although still too long to suit those in the creative artist category. The Committee on Canadian Heritage in the other House has done a serious legislative tidy-up on this bill.

[English]

Canada was a signatory to the 1886 Berne Convention protecting literary and artistic works, and to the Universal Copyright Convention of 1982. Canada is also a member of the World Trade Organization.

Passage of Bill C-32 would entrench the right of performers, musicians and producers of sound recordings to the payment of neighbouring rights. Canada would thus be aligning itself with 50 other countries, a large proportion of them admittedly in continental Europe. Canada would become a signatory to the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. However, we should be reminded that of all the major industrialized nations, only the United States has not signed the Rome Convention.

This was the argument advanced in the other house by the Reform Party, and also by broadcasters, hoteliers and restaurateurs who are convinced that they cannot find extra money to pay out in these hard times.

[Translation]

In the music world, the usual royalties are paid to the composer, who wrote the music, and to the lyricist. Broadcasters have to spend a little over 3 per cent of their income on these royalties. Neighbouring rights represent an additional cost ranging from 1 to 3 per cent. The margin is enormous. However, that is the approximate assessment we have. Neighbouring rights will be regulated by the copyright board. And Bill C-32 has from the outset made an important exception: Stations receiving less than $1.25 million in advertising revenue annually will not pay more than $100 a year. It seems this applies to 65 to 70 per cent of the stations. Other stations will pay on that portion of their income that exceeds $1.25 million the full amount of neighbouring rights, after a phasing-in period of three years instead of the five years mentioned in the original version of the bill. Creators managed to obtain this change, which is to their advantage, while users do not look very favourably on this amendment.

When faced with Bill C-32, as in other instances, the Senate, this chamber of sober second thought, has an obligation to act as an arbitrator. The initial challenge for the Senate committee that will examine the bill after second reading will be to determine the number of witnesses to appear before the committee. I have a feeling we will have to deal with a host of contradictory requests. Those opposed to the bill will want to hear as many witnesses as possible, while those who support the bill will prefer to expedite the process.

Broadcasters are practically unanimous in their opposition to creating neighbouring rights for performing artists, musicians and producers of sound recordings. They argue, and I believe rightly so, that they help to sell audio disks and tapes. It is true that, after listening to a top hit on the radio, many people go to their record store to buy it. However, there is another side to the story, a side we can hardly afford to ignore.

Broadcasters will lose part of their profits, but the majority of performing artists in Canada have an annual income that ranges from $7,000 to $13,000. The arts are like a show that is all glitter and fairy-tale splendour, with ropes of pearls, genuine or fake, and costumes covered with sequins, but it is also a thankless existence. Any recognition that lesser-known performing artists get boosts their self-esteem more than their wallets. Because our artists are the standard-bearers of our culture, we think it is entirely legitimate to provide more substantial remuneration for performing artists, musicians and producers by guaranteeing them neighbouring rights on sound recordings.

(1520)

And the broadcasters are right: Céline Dion, Anne Murray, Roch Voisine and Alanis Morissette will skim off most of the revenue. They happen to have the biggest sales. However, how can we avoid this? I would really like to know.

[English]

Two other important aspects of the bill before us also affect broadcasters. Once again, things have changed considerably since the computer and the Internet replaced the typewriter and the rotary phone.

A committee amendment in the other place granted broadcasters "ephemeral rights" - the right to tape live local performances, and replay them up to 30 days later without incurring extra copyright charges, provided there is no creators' collective that can negotiate deals. I am referring to an article in The Gazette of January 2, 1997. This is a significant caveat. A creators' collective is an agency established by artists that authorizes broadcasts, collects royalties and manages their works on their behalf.

However, broadcasters are still lobbying for an exemption for "transfer of format," a technical term to describe the process whereby broadcasters transfer music from a CD to a computer drive for air play. Thus far, the government has refused to grant a general exemption. In a last amendment, Bill C-32 validates the exemption only for a period limited to 30 days. Broadcasters contend that they pay levies when they purchase records or cassettes, and that they should not be compelled to pay twice.

[Translation]

Of Bill C-32's nine parts, at least three are administrative in nature and two concern infringements and remedies. Listing all the provisions is out of the question.

Copyright provides protection for the lifetime of the creator plus 50 years, except in the case of photographs, where it is 50 years. The Bloc Québécois wanted to increase protection on photographs. It would have given them parity with other works of art. However, the Bloc failed in its attempt in the other House.

In a totally different area, parallel importation of books will be subject to sanction, if it infringes the rights of a recognized exclusive distributor in Canada.

One amendment warrants reflection. Clause 45 permits the import of used books, except in the case of textbooks for colleges and universities. The rights of an exclusive distributor must be respected. This will require students to pay an additional $3 million to buy new books, and will also mean they will lose $2 million and the universities $400,000 on the resale of these books. I wonder just who benefits from this amendment, which was tacked on at the last minute as well.

[English]

The proposed copyright legislation, Bill C-32, as it is now worded, presents a particular problem for Canadian booksellers who specialize in the sale of books not sold during their first appearance on a bookseller's shelf. The problem noted by Bill C-32 is that it gives Canadian distributors exclusive distribution rights. A distributor could hold titles on its distribution list for as long as it wants, preventing a reseller from importing those titles from U.S. publishers, even after this publisher's hold period has expired. This inability to import these types of book from the U.S. would effectively put these resellers out of business.

Stationing a policeman beside every photocopier in university libraries is unrealistic as a way of preventing the illegal reproduction of books. Bill C-32 takes a three-pronged approach to this problem. Universities will continue to make use of excerpts from authors for exam purposes, and they will be able to make copies of these excerpts for their students. However, they must reach an agreement with a collective society, and I am told that they are doing so already. A portion of the profits raised by the photocopy fees are to go to the collective society.

The right to make a copy for private use is recognized, but with certain restrictions. For academic purposes, educational institutions can reproduce one copy of a newscast or news commentary program, but they must destroy it after one year. The one copy of some other type of broadcast or program must be destroyed within 30 days.

For purposes of conservation and consultation on site, libraries, archives and museums may make copies of works that are deteriorating. This provision is found in the new clause 30.1 of the bill. One reproduction of an unpublished work deposited in an archive may also be made for private use for research purposes.

[Translation]

Just as important, Bill C-32 to amend the Copyright Act also provides for the establishment of a levy on the sale of blank audio tapes.

This levy is established under Part VIII of the bill and, like neighbouring rights, it will supplement the income of performers, musicians and sound recording makers. It will also benefit the authors of musical works. In Canada, 44 million blank audio tapes were sold in 1996, 39 million of which were presumably used for private copying of sound recordings by performers. Who never used an audio tape to record some music, even with the best of intentions?

Then again, the new levy does not make everyone happy. The audio cassette manufacturing industry fears it will face bankruptcy, job losses, the emergence of a grey market and other complications if this levy is imposed, as suggested by the minister, on imports instead of at the retail level.

Of course, the legislation makes recovery remedies available to musicians, performers and sound recording makers eligible to neighbouring rights. The levy will be established by the copyright board based on a tariff that each collective society "may" file.

This is a very technical bill. It is a headache even for informed lay people. Under clause 92, within five years of the passage of Bill C-32, a report must be laid before Parliament. And a committee of the House of Commons or of both Houses of Parliament, as the case may be, will review the operation of the Copyright Act.

To summarize, the main task that lies ahead for us is to decide whether or not to approve the granting of neighbouring rights to performers, musicians and sound recording makers. They too benefit from the levy on blank audio tapes. Do we go for the universal "collective society" supervision scheme, favoured to a large extent by the Bloc Québécois? American music aside, I must point out that these societies are more powerful in Quebec than anywhere else in Canada because that province produces more original music. The issue of ephemeral rights requested by broadcasters for copying laser disks onto their hard drives will certainly be thoroughly reviewed by our party.

(1530)

We support the motion for second reading of Bill C-32 subject to amendments for consideration and adoption, if necessary.

[English]

An impressive debate took place in the committee of other house on this bill: 65 witnesses appeared and 190 briefs were submitted. Perhaps that debate will resume here.

I should like to end by quoting, since it sums it up so well, the conclusion of the Revised Legislative Summary prepared by the Library of Parliament's Research Branch dated January 14, 1997:

Given the many amendments made in committee, Bill C-32 is materially different from the original version. The "losers" under the revised bill will doubtless want to make representations to parliamentarians in an effort to recover lost ground, while the "winners" will doubtless want to do the same in order to maintain their gains. Thus, the controversy surrounding the bill is not likely to go away; it may in fact intensify in the weeks to come. It is therefore an open question whether the bill as amended in committee will be passed in its current form, or whether it will be amended still further.

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, I was waiting to interject, since I expected that another senator on the government side would speak.

Hon. B. Alasdair Graham (Deputy Leader of the Government): He has already spoken. Senator Grimard has sponsored the bill.

Senator Kinsella: It is somewhat of a surprise that no other senator on the government side wishes to speak. With a bill as complex and important as this, the government has only one speaker, the sponsor.

Senator Gigantès: But what a speaker!

Senator Kinsella: Senator Gigantès did, indeed, make an excellent contribution to the debate, as did our colleague Senator Grimard.

Honourable senators, you may recall that, when the sponsor of the bill spoke on Tuesday, in my question to him I indicated that, when Bill C-32 was tabled on April 25, 1996, about a year ago, in the other place by the Minister of Canadian Heritage, the Minister of Industry, Mr. Manley, wrote that the bill would achieve a fair balance between the rights of those who create works and the needs of those who use them.

Quite frankly, honourable senators, as Senator Grimard has pointed out, it boils down to this balance between the interest and rights of the creator and the interest and rights of the user. Our task, it seems to me, is to critically evaluate whether that balance has been struck in the appropriate proportions.

The bill was originally introduced, went through the process in the other place, and was radically amended. Before us today is a bill which is completely different from the bill that was introduced initially in the other place.

When it was introduced in the other place, the two ministers were advising that place that they thought they had the right balance. This, it seems to me, honourable senators, is something we must examine acutely.

Many creator and user groups came out in support of the original bill, despite its shortcomings. They did so on the basis that it was a workable compromise that struck a fair and reasonable balance between the rights of creators and the needs of users for access to copyright material. It is important to note that now only certain creator groups are vocally calling for passage of Bill C-32 in the form in which it has arrived in this chamber.

Honourable senators, what happened to make so many groups, particularly user groups, turn against the bill as adopted in the other place? When the bill was originally introduced, there was a broad spectrum of support for it.

During the last days of its consideration of Bill C-32, the House of Commons Standing Committee on Canadian Heritage introduced a flurry of what I believe to have been hastily drafted amendments, many of which were passed without open discussion or serious consideration by the members of that committee in the other place. The process followed by the Commons heritage committee during the last days of its hearings has been criticized roundly in many quarters for its failure to meet even the most rudimentary standards of diligence in dealing with the government's proposed amendments.

Clearly, as the hearings of the heritage committee of the other place came to a close, expedience won out over the principle of balance in order to satisfy the government's apparent desire for speedy passage of Bill C-32 in anticipation of a rumoured spring election call.

(1540)

As a result of amendments brought in by the heritage committee, the balance in Bill C-32 has shifted considerably in favour of the interest of copyright collectives and rights of holders. The bill, in my opinion, is now seriously flawed and is in need of amendment by the Senate.

There is agreement that the Standing Senate Committee on Transport and Communication will soon give consideration to Bill C-32. At second reading debate, while debating the principle of the bill, I want to underscore the importance that senators refresh their memories regarding the history behind these second-phase reforms to copyright laws.

Honourable senators, when I first arrived in this chamber, the first-phase process had been completed, and I recall spending a fair amount of time in discussion with the Honourable Senator Lorna Marsden who had a great interest in this area. To this day we share a common interest in copyright reform and, in particular, in this second-phase copyright reform.

Indeed, it might be interesting and helpful if the committee were to invite our former colleague to appear, given her tremendous experience both from the standpoint of being a member of this chamber and dealing with the first phase, as well as being president of a distinguished Canadian university which is an important user-institution.

Let us recall for a moment the history behind this phase of copyright reform that we are dealing with now. The first-phase copyright law reforms, enacted in 1988, were designed to strengthen the rights of Canadian creators and ensure that they received fair remuneration for the use of their copyright works.

In 1988, and repeatedly thereafter, users of copyright works, especially the non-profit educational and library communities, were assured by the government that second-phase copyright law reforms would put in place educational and library exceptions to restore balance to our copyright law.

For two years leading up to the passage of the first-phase legislation, the government facilitated the formation and operation of consultative committees composed of creators and educational and library groups to discuss the scope of exceptions for specific uses of copyright works.

In 1989, the government acknowledged that a consensus had been reached on most of these issues and, in 1990, it proceeded to draft second-phase legislation on the basis of these compromise positions. The exceptions set out in the original draft of Bill C-32, when it was tabled, reflected those compromises. That is important for us to recall.

Despite the years of consultation and compromise that went into the drafting of the educational and library exceptions in Bill C-32, the amendments of the heritage committee of the other place have watered down and further weakened these exceptions to the point where the bill no longer embodies, in my judgment, a reasonable balance between the rights of creators and the needs of users of copyright works.

Accordingly, in my opinion, it is incumbent upon the Senate to restore balance to Bill C-32 by reversing some of the unfair changes made by the Heritage Committee in the other place.

Honourable senators, I specifically propose that the Senate consider reversing heritage committee amendments in the following areas: First, the original definition of the term "commercially available" should be restored. The Heritage Committee's change to the definition of this term undermines and effectively makes inoperable some of the educational and library exceptions in the bill.

The government should not give exceptions with one hand and take them away with the other. As a result of this change, if a library wants to replace lost or damaged pages in a rare or unpublished work in its collections, it must pay a fee to a copyright collective for the privilege of doing so.

Second, the new restriction on the importation of used textbooks, to which Senator Grimard has alluded, should be deleted from the bill. This provision, in effect, places a tax on learning and deprives students of access to affordable learning materials at a time when increasing student debt is becoming a serious public concern. If the government wishes to support Canadian textbook publishers, it should not be doing so on the backs of Canadian students.

Third, the provision that exempts educational institutions and libraries from liability for self-serve photocopying machines located on their premises should be restored to its original form when Bill C-32 was first tabled in the other place. When Bill C-32 was initially drafted, this provision exempted institutions from liability, provided they posted an appropriate warning notice near the photocopier to advise patrons of the need to comply with copyright laws.

Similar provisions exist in the copyright laws of other jurisdictions, such as the United States and Australia. Honourable senators, the heritage committee of the other place amended this provision to require that an institution must have a signed collective licensing agreement or it would not be exempted from the liability for any infringement by a patron using the self-serve copier. That change goes well beyond the laws of comparable jurisdictions and, quite frankly, will leave non-profit institutions worse off than they would be under the common law.

Even more disconcerting, that change may leave non-profit educational institutions and libraries more open to liability than for-profit enterprises such as law firms that allow the use of self-serve copiers in their law offices.

Fourth, the off-air taping exception should also be returned to its original form to allow the copying of documentaries for performance in the classroom.

Honourable senators, Bill C-32, as tabled, had permitted an educational institution to make a single copy of a news or commentary program for the purpose of providing the copy for students of the educational institution. I have done this in my own courses.

The heritage committee introduced a substantial amendment that diminishes the exception that was in the original bill. This was done by explicitly excluding documentaries from its coverage. As a result, if a university professor wants to show students a segment from a television show, let us say, Marketplace or Witness, the university must pay the broadcaster anywhere from $50 to $100 or more for a copy of the program.

Under the exception, as it was originally drafted, when the bill was first tabled in the House of Commons and supported by the minister, a professor could have taped the show off air and could have shown the segment in class with no requirement of payment.

(1550)

Finally, there is one key area, the proposed new statutory damages regime, in which Bill C-32 should have been amended by the committee of the other place but was not. As the bill stands, the statutory damages regime can lead to the payment of damages for copyright infringement, even if a person had no knowledge that the activity in question infringed copyright. That is patently unfair. A lack of knowledge on infringement should be a bar to liability for statutory damages.

The Hon. the Speaker: Honourable Senator Kinsella, I regret to have to interrupt you, but your 15-minute time period has expired.

Honourable senators, is leave granted that Senator Kinsella continue?

Hon. Senators: Agreed.

Senator Kinsella: I have but a paragraph left, honourable senators. Thank you.

The bill also requires that non-profit educational institutions and libraries have a collective licence in order to benefit from an exemption from liability for statutory damages. Publicly funded educational institutions and libraries should be exempt from statutory damages, irrespective of whether they have licensing agreements with reproductive collectives.

Honourable senators, we must give serious consideration to these proposals with the view to restoring the balance to Bill C-32 that was promised by the government when the bill was introduced.

In conclusion, we must remember that educational institutions and the libraries in our country are, virtually, universally publicly funded. Both, from the standpoint of the fruit of the creator, come about as a result of the creator himself or herself having been a beneficiary of the public education system. The granting of these exceptions is unique when granted to the publicly funded educational system in which the artist or creator himself or herself has developed to the point that they have become a creator.

After a long period of work during a consultative process, the communities involved, both the creators and the users, had come to a compromise that was reflected in the bill as it was originally introduced into the other place. That bill was supported by the government and ministry. We should restore that balance in our consideration of the bill.

Hon. Finlay MacDonald: Honourable senators, this question is for Senator Kinsella. I gather from what he has said that this bill will eventually be referred to the Standing Senate Committee

on Transport and Communications. There has been a kind of mix-up. First, we understood it would go to the Standing Senate Committee on Social Affairs, Science and Technology, and that was changed, apparently by agreement. You have now moved it to the Transport Committee. Why did you agree to do that when this bill should, under normal circumstances, go to the Banking, Trade and Commerce Committee, which has traditionally handled copyright legislation?

Senator Kinsella: Honourable senators, I thank Senator MacDonald for the question. I am not sure that I can provide an answer. Perhaps it would be more thoughtfully answered by the Deputy Leader of the Government in the Senate.

In all frankness, I cannot remember if part of the problem was workload or whether it was principally that the subject-area crossed the boundaries of several standing committees. Perhaps we could ask the deputy leader to tell us why it is being referred to that committee.

The Hon. the Speaker: Honourable senators, leave must be granted for the Honourable Senator Graham to respond to a question.

Is leave granted?

Hon. Senators: Agreed.

Hon. B. Alasdair Graham (Deputy Leader of the Government): Honourable senators, as the Acting Deputy Leader of the Opposition has indicated, the substance of the bill crosses the boundaries of several committees.

In response to Senator MacDonald's question, I do not recall that the bill was originally scheduled to go to the Standing Senate Committee on Social Affairs, Science and Technology. It is a cumbersome and complicated bill, as indicated by the very excellent presentations made by the sponsor of the bill, Senator Gigantès, and the speeches today by Senators Grimard and Kinsella.

Frankly, I did not find any committee that was very anxious to take on the responsibility of examining such a complicated piece of legislation. Most of the concerns that I received came from the communications industry. The conclusion was reached, in consultation with the opposition leadership, that the bill should be referred to the Standing Senate Committee on Transport and Communications in order for it, among other things, to examine the broadcast elements of the bill and the recent technological developments that have an impact on copyright protection.

As honourable senators who have examined the legislation know, one part of the bill addresses issues related to sound recordings and communications signals. The portion on communications signals, for the first time in the Copyright Act, recognizes the rights of broadcasters with respect to those signals.

More important, the bill also deals with possible exemptions for broadcasters with respect to ephemeral recordings and certain re-recorded recordings. These matters are of substantial interest to the broadcast industry and other groups as well. In order to permit the broadcasters and those other interested parties to address these specific aspects of the bill, it has been agreed that the bill should be sent to the Standing Senate Committee on Transport and Communications. The committee's Chair, Senator Bacon, has had considerable experience in the areas involved in the copyright bill, be it culture, communication or whatever, as have the deputy chairman, Senator Forrestall, and other very competent members of the committee. That is why the determination was made that it should be sent to the Standing Senate Committee on Transport and Communications.

Senator MacDonald: Honourable senators, I realize that a bill can be sent to any committee on the basis of workload of particular committees, and that is a better reason than the one the honourable senator has just given. As far as communications that refer to broadcast are concerned, only two sections of the bill are involved - shifts in time and changes in format. The bill is laden with many other issues, 90 per cent of which have nothing whatsoever to do with broadcasting.

Senator Graham: Honourable senators, if the honourable senator wants to talk about workload, we have already given first reading of Bill C-66, amendments to the Canada Labour Code, and next Tuesday we will give it second reading and refer it to the Standing Senate Committee on Social Affairs, Science and Technology, which has already received Bill C-300. That committee already has its work cut out for it over the next week or two.

Since the Transport Committee does not have any specific legislation before it at this time, it was thought that it would be appropriate to send Bill C-32 to them because of the comparative workload of the two committees.

(1600)

Hon. Philippe Deane Gigantès: Honourable senators -

The Hon. the Speaker: Honourable senators, I wish to inform the Senate that, if the Honourable Senator Gigantès speaks now, his speech will have the effect of closing debate on second reading of this bill.

Senator Gigantès: Honourable senators, from the excellent speeches by Senators Grimard and Kinsella, from the comments of the various stakeholders who have been contacting me as sponsor of the bill - even though I am hardly an expert in this subject - and from the briefings I have received, it seems that this bill results from a very delicate balancing act in which the creators did most of the conceding.

We are a small country with a small market for creative people. It is difficult for them to make a living as creative people. They are not all like me; I grovel with gratitude when a university student presents me with a photocopy of a book I have authored on ancient Greek history and asks that I autograph it. I am so pleased that I never think of my loss of copyright. Of course, I am a senator and I have a salary. However, there are others who are trying to make a living as authors, and we must protect their interests, but that involves a difficult balancing act. The Standing Senate Committee on Transport and Communications will be glad to revisit and re-examine this important subject.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker: When shall this bill be read the third time?

On motion of Senator Gigantès, bill referred to the Standing Senate Committee on Transport and Communications.

Criminal Code
Department of Health Act

Bill to Amend-Second Reading-
Debate Continued

On the Order:

Resuming the debate on the motion of the Honourable Senator Carstairs, seconded by the Honourable Senator Cohen, for the second reading of Bill S-14, to amend the Criminal Code and the Department of Health Act (security of the child).-(Honourable Senator Pearson).

Hon. Landon Pearson: Honourable senators, today I should like to add my support to Bill S-14. The primary purpose of this bill, introduced by my colleague Senator Carstairs on December 12, 1996, is to repeal section 43 of the Criminal Code and, by so doing, to encourage parents and teachers who are currently able to use this section as a defence when charged with assault against a child, to turn to other sections of the Criminal Code to defend themselves if they feel their actions were justifiable under the circumstances.

A parallel purpose of the bill is to enable a public education program to accompany the repeal of section 43 explaining why the use of force as a means of correction against a child will no longer be acceptable behaviour in Canadian society, and to promote alternative non-violent methods of discipline, which, in any case, are much more effective for a developing child.

Let me state at the outset that I do not for a moment support the criminalization of a parent for an occasional slap. I have five children of my own and now 10 grandchildren who constantly remind me how provocative and how challenging little children can be. Every time a small child misbehaves, that child is telling us something - that he or she is unhappy or angry or hungry or possibly unloved or neglected. That child is using body language to ask for our attention, our help and our guidance. If we respond with a blow, we are telling the child with our body language that he or she is not a person who deserves our respect but something much less, worthy only of being treated with violence.

This is a lesson I have learned through my own mistakes. When my children were small, even though Dr. Spock said that an occasional spanking was acceptable, whenever I followed his advice I felt rather uneasy. The older I get, the worse I feel about that aspect of my behaviour as a well-intentioned young parent. I am happy to say that my grandchildren have never had to experience that behaviour for which my own children have forgiven me. However, that sanction by the most respected child-rearing expert of the time allowed me to use a method I now know to be demeaning as well as ineffectual. That is what we condone if we leave section 43 on the books.

Honourable senators, we have all advanced considerably in recent years in our understanding of the real meaning of human dignity. Our understanding has been shaped by codes, covenants and conventions - the international language of human rights. No one would dream now of using corporal punishment to discipline a person who is disabled, a woman, an elderly individual afflicted with Alzheimer's disease or any other vulnerable person. Yet, we still find it acceptable to sanction the corporal punishment of children in our Criminal Code.

In Canada, the right to security of the person is protected in article 7 of the Canadian Charter of Rights and Freedoms. People have the right to that security without discrimination based on age. At present, owing to section 43, children are the only persons not protected from the use of force by way of correction.

In my view, it is at the very least a breach of the Charter to single out children for an all-purpose defence based on status rather than on circumstances.

Honourable senators, in 1991, Canada ratified the UN Convention on the Rights of the Child. This international treaty clearly recognized the status of children as holders of universal human rights. Article 19.1 of the convention states:

States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse while in the care of parents(s), legal guardians, or any other person who has the care of the child.

Article 289.2 states:

States parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity.

Article 3 also states that in all actions concerning children, their best interests shall be a primary consideration.

Striking children in order to discipline them is, in my view, a violation of their fundamental human rights as human beings and a constant confirmation of their low status. We also know that this type of discipline passes from one generation to another. It encourages violent behaviour both in childhood and later in life. It is a dangerous practice that can sometimes lead to serious injury or escalate into child abuse.

By opposing the physical punishment of children, we are not just promoting one way of child-rearing over another; we are seeking to apply a fundamental human right to all adult-child relationships. Penalizing parents and other caregivers is not the answer. We all recognize that behavioural and attitudinal change is a slow and arduous process requiring sustained public awareness.

International experience indicates that legal changes to protect children from physical violence and physical punishment are most effective if they are combined with public education programs emphasizing positive forms of discipline, forms that enable children to understand their behaviour and to learn to discipline themselves.

Besides, in most cases, criminal prosecution would not be in the best interests of the child or of society. In those cases where no physical injury has occurred, an assault charge against a parent or a person acting in the place of a parent would be counter-productive and inappropriate. A certain level of corporal punishment exists in Canadian families. Polls indicate that a large number of parents use some physical discipline. That is clearly better than the removal of children from their families. That is, of course, while we are working to reduce this kind of discipline.

Child protection workers, police and family courts require alternative responses when dealing with most of the families brought to their attention. Educational programs and services that support them in a positive way are especially needed. While I fully support the repeal of section 43 for the reasons I have already given, I recommend some caution in removing this section without adjusting some of the surrounding sections.

(1610)

In 1994, I participated in a consultation on section 43 organized by the non-governmental community. We looked at what might be done to respond to certain concerns raised by teachers and parents who found themselves obliged to use force as a restraint. We found that the defences provided by Criminal Code sections 34, self defence against unprovoked assault, and 37, preventing assault, might not apply in all situations. If teachers acted to interrupt a fight, they might be charged with assault.

The 1986 Law Reform Commission report suggested that the defence of necessity is the appropriate one for situations involving teachers and masters of ships in their requirement of maintaining order and safety. A February 1993 report from the House of Commons subcommittee dealing with reforms adopted the view of the Law Reform Commission. Further clarification and codification of the defence of necessity would help the situation with regard to teachers.

There are other situations where caregivers are justified in using force to protect the child from harm. Restraining a child to protect other children, adults, animals or property may also be justified. Many of these situations are covered in sections 27 to 37 of the Criminal Code. Sections 25 and 26 also address the use of force and will need to be studied as well. The impact of the repeal of section 43 on these sections will have to be analyzed and adjustments made if necessary.

Furthermore, the repeal of section 43 would have to be preceded by careful analysis of other sections of the Criminal Code that are designed to ensure that homes, schools, facilities and institutions are safe environments for children and for the adults who care for them. This analysis should be accompanied by public education efforts to inform children of their rights and responsibilities, to help parents and other caregivers learn positive ways to teach children how to behave, and to encourage ways of child-rearing that promote dignity, respect and the growth of self-discipline.

We can learn much from the Swedish model. As part of their public education efforts on corporal punishment, a code of parental responsibility was developed which says that children should be treated with respect as individuals and not exposed to situations that violate them in any way. Repeal of section 43 and the suggestions regarding public education made by Senator Carstairs in introducing Bill S-14, I feel, are positive steps towards affording children in Canada the status and protection they deserve.

On motion of Senator DeWare, debate adjourned.

Criminal Code

Bill to Amend-Report of Legal and Constitutional Affairs Committee-Motion to return report
to committee-Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Carstairs, seconded by the Honourable Senator Losier-Cool, for the adoption of the sixteenth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-3, to amend the Criminal Code (plea bargaining)), presented in the Senate on November 7, 1996;

And on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Robertson, that the Report be not now adopted but that it be referred back to the Standing Senate Committee on Legal and Constitutional Affairs for further consideration.-(Honourable Senator Corbin).

Hon. Sharon Carstairs: Honourable senators, I rise today to address Senator Cool's amendment to the motion to adopt the sixteenth report of the Standing Senate Committee on Legal and Constitutional Affairs regarding Bill S-3, which would have the effect of referring the bill back to committee.

Before we, as a Senate, take a decision on referring the bill back to committee, I feel it is necessary to clarify for honourable senators the circumstances surrounding the unanimous decision of the committee to recommend to the Senate that the bill not be proceeded with.

Bill S-3 was introduced in the Senate on February 28, 1996. It was debated at second reading, and, on May 2, 1996, it was referred to the Standing Senate Committee on Legal and Constitutional Affairs for study and report.

In June, as Chair of the Legal and Constitutional Affairs Committee, I met with Senator Cools in my office, on behalf of the steering committee, to discuss the committee's proposed time line for the bill and to invite Senator Cools, as sponsor of the legislation, to deposit with the clerk of the committee a list of witnesses that she would like the committee to consider, so the steering committee could proceed to decide which witnesses to invite before the committee.

Senator Cools indicated in her remarks that the steering committee did not meet with her. Honourable senators, the steering committee does not meet with sponsors of bills to determine their witness list. I can only imagine the consternation in this chamber if the Minister of Justice or the Solicitor General were to determine for our steering committee the witness lists on their bills.

Senator Cools did provide the clerk of the committee with a list of possible witnesses on September 24, 1996. In September, on behalf of the committee, I did two other things with regard to the study of Bill S-3. I wrote to all provincial Attorneys General and/or Ministers of Justice to gauge their interest in appearing before the committee. Plea bargaining is administered by the provinces, and as such I thought they would have an interest in the bill. I also asked the Library of Parliament to prepare a research paper on the bill for the members of the committee.

Although the committee received a number of responses to my letters to the provinces, none indicated an interest in appearing before the committee. However, the Attorney General of Alberta, although he did not wish to appear, expressed concerns as to the constitutionality of the bill.

In the September 6, 1996, Library of Parliament report prepared for the committee, the issue of constitutionality was again raised:

Implementation of Bill S-3 may also infringe legal rights protected by the Canadian Charter of Rights and Freedoms. For example, section 11(h) guarantees that anyone found guilty and punished for an offence cannot be `tried or punished for it again'. The absence of any specified time limit may render Bill S-3 even more vulnerable to Charter challenge, since it could be argued that a sentence could be set aside at any time, even after an accused had served the requisite prison term and been released. Furthermore, section 7 of the Charter guarantees the right to `liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice'. Bill S-3 certainly has the potential to affect liberty rights and it remains to be seen whether the courts would find the process contemplated by the legislation to be consistent with the principles of fundamental justice.

It was therefore of grave concern to the committee that Bill S-3 be first examined for its constitutionality.

Honourable senators, there is a whole section within the Department of Justice, the Human Rights Department, whose role it is to ensure that everything the government does in its operations, legislation, and policy development is consistent with the Charter of Rights and Freedoms, whether the bill comes from the Department of Justice or from any other department. Furthermore, it is the duty of the Minister of Justice to certify all government legislation as complying with the Charter. It is a frequent occurrence in our committee hearings that senators will ask if, in fact, the particular bill has been so certified.

There is, however, no such check on private members' bills. It is therefore incumbent on the committee - in this case the Standing Senate Committee on Legal and Constitutional Affairs, which always looks at the constitutionality of a bill - to report to the Senate their concern that a bill may be unconstitutional.

The committee invited Senator Cools, as sponsor of the bill, to appear before the committee to explain the bill. Senator Cools appeared before the committee on September 26, 1996. On behalf of the steering committee, on October 2, 1996, I wrote to the Canadian Bar Association inviting them to comment on Bill S-3. In a letter dated October 21, 1996, Joan Bercovitch, Senior Director of the Legal and Governmental Affairs division of the Canadian Bar Association, wrote me to refuse the invitation to appear.

The committee then invited officials from the Department of Justice to appear to give testimony on the bill. They appeared on October 24, 1996. Mr. Yvan Roy of the Criminal Law Section of the Department of Justice, in testimony before the committee, also raised the issue of section 11(h) of the Charter:

In other words, in the case involving Karla Homolka, or other people who have already been convicted, we are talking about reopening the conviction, and on the basis of section 11(h) I would submit that there may be a significant Charter problem.

(1620)

Mr. Roy went on to say:

What would be argued later on, I am afraid, is that there is a limitation to be put on the right under section 11(h) on the basis of section 1 of the Charter of Rights and Freedoms, and that may prove to be a very daunting task.

On October 24, 1996, following the presentation by the officials from the Department of Justice, the steering committee of the Standing Senate Committee on Legal and Constitutional Affairs, composed of Senators Nolin, Lewis and myself, met to discuss the next step to be taken on Bill S-3. It was the unanimous view of Senators Nolin, Lewis and myself that there were serious concerns about the constitutionality of the bill, and that no further witnesses should be called until the full committee of the Standing Senate Committee on Legal and Constitutional Affairs decided on how it wished to proceed.

Our decision was based on our concern that the bill contravenes section 11(h) of the Canadian Charter of Rights and Freedoms. However, because of the importance of this decision, the steering committee resolved to raise the issue of further study of Bill S-3 at the next meeting of the entire committee and leave it to the full committee to decide how to proceed.

The Legal and Constitutional Affairs Committee met on October 31, 1996. The steering committee reported its concerns about the constitutionality of Bill S-3, but made no recommendation to the full committee on how to proceed and asked the committee to make that decision.

The committee decided not to call any further witnesses and to report unanimously to the Senate that the bill not be proceeded with because of the concerns raised that the bill was unconstitutional and in conflict with section 11(h), of the Charter of Rights and Freedom, which states:

Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

Staff was directed to draft a report to this effect. The draft report was considered at the November 6, 1996, meeting of the Standing Senate Committee on Legal and Constitutional Affairs. The draft report was adopted unanimously by the committee.

Honourable senators, the committee is not a court of law. We cannot state categorically that this bill is unconstitutional. However, it is our responsibility as members of the Legal and Constitutional Affairs Committee to bring our concerns to the Senate when we fear for the constitutionality of a bill.

Honourable senators, Senator Cools in her speech of March 12, 1997, presented, as she always does, a very well researched and thought-out argument regarding the use of Royal Prerogatives and pardons. Although I appreciate Senator Cools' remarks, I must remind honourable senators that this bill is not about Karla Homolka. Criminal Code amendments are not usually retroactive. There is nothing in this bill to make it apply retroactively to Karla Homolka.

Bill S-3 addresses the issue of plea bargaining and creates a new offence for those who knowingly withheld or misrepresented information. However, it could certainly be argued that the intention of the lawmaker is that the bill apply retroactively and, by necessary implication, would affect Karla Homolka. However, if this were the case, then it could be argued that the bill contravenes section 11(g) of the Charter which states:

Any person charged with an offence has the right

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

It is arbitrary and unfair for government to pass laws to criminalize actions that are already passed. That is why the Charter protects against retroactivity in law.

The September 24 list that Senator Cools sent to the clerk of the committee was comprised exclusively of those involved in the Homolka case. Senator Cools stated in her remarks to the Senate that the committee never shared with her its research materials. Senator Cools attended the meeting of the committee when Justice officials were with us. She was also given a copy of the Library of Parliament document.

Senator Cools: I was not.

Senator Carstairs: Honourable senators, the Legal and Constitutional Affairs Committee is an extremely hard-working committee of this house. In the 2nd Session of this 35th Parliament, we have met 75 times. We have sat for over 150 hours.

Honourable senators, I would not like the impression to be left with the Senate that the committee was remiss in its responsibility for Bill S-3. For me to support Senator Cools' motion to refer the bill back to committee would mean that I thought the committee had not done its job on Bill S-3. I would be doing a great disservice to the members of the committee who treat the work of this committee with the utmost respect.

I am also somewhat mystified as to what the Senate would like us to do with this bill if it is sent back to committee. Is the Senate asking us to call further witnesses, at some significant expenditure of money, even though all members of the committee have serious concerns about the bill's constitutionality?

Honourable senators, I raised this matter again in the full committee following the introduction of Senator Cools' amendment to return the bill to committee. The members of the Legal and Constitutional Affairs Committee remained unanimous in their view regarding the constitutionality of Bill S-3. Honourable senators, we await your decision and your instructions.

Hon. Noël A. Kinsella (Acting Deputy Leader of the Opposition): Honourable senators, would the Honourable Senator Carstairs entertain a couple of questions for clarification?

Senator Carstairs: Of course, honourable senators.

Senator Kinsella: Senator Carstairs mentioned her correspondence with the provinces and territories. I did not hear her say how many responded.

Senator Carstairs: I did not say exactly, Senator Kinsella. My recollection is that about five or six did reply.

Senator Kinsella: Did I understand correctly that the province of Alberta was one of the provinces that wrote to express the view that they believe there are serious constitutional problems with this bill, but that they do not wish to appear before the committee?

Senator Carstairs: I will provide Senator Kinsella with a copy of the letter from the Attorney General for the province of Alberta. In essence, that is exactly what was stated in that letter. They do not wish to appear, but they have serious concerns about the constitutionality of the bill.

Hon. Anne C. Cools: Honourable senators, I should like to ask a question of the honourable senator.

Is Senator Carstairs willing to share with me the letters she received from various provincial ministries? Will she also provide me with the research materials, including the paper from the Library of Parliament? I have received no such documents.

Senator Carstairs: I will be pleased to provide Senator Cools with all of the letters I have received from attorneys general or ministers of justice, as well as the document from the Library of Parliament.

Senator Cools: Could I also have from Senator Carstairs any written legal opinions from the Department of Justice or anyone else?

Senator Carstairs: What we have received from the Department of Justice is the testimony they gave to the committee, and that is is available in the transcript of the proceedings of the committee. However, I will have my researcher provide that information to Senator Cools.

Senator Cools: I have read with some care the testimony given by the representatives of the Department of Justice before the committee. I read Mr. Roy's testimony. I was referring specifically to any legal opinions that may have been rendered, rather than the transcript of the proceedings, which is a public document.

Senator Carstairs: As I indicated, they have not given us a legal opinion on the legislation. They are hesitant to do that with respect to private members' bills. All that is available is the record of their testimony.

Senator Cools: Will Senator Carstairs share with us -

The Hon. the Speaker: I hesitate to interrupt the proceedings. However, Senator Carstairs' speaking time has been exhausted. The questions come out of the same time allocation. With leave, of course, we may continue.

Is it agreed that we continue?

Hon. Senators: Agreed.

Senator Cools: Would Senator Carstairs share with us why this legal opinion was rendered that the bill was unconstitutional? From what I can hear, all that has happened is that an assertion has been made. Someone has said that Bill S-3 is unconstitutional, but has given no reasoning. It is not clear to me what the thinking is. A declaration on a conclusion is simply not enough.

(1630)

Senator Carstairs: My answer to that question, honourable senators, is that there were several meetings of the Standing Senate Committee on Legal and Constitutional Affairs with respect to this bill. Like all senators, my honourable friend was afforded an opportunity to attend that meeting. She could then have heard the debate and discussion that took place. However, there is a record of that meeting, and it is available to her.

Senator Kinsella: Honourable senators, there appears to be, in the opinion of a number of persons, a problem with the Charter, specifically section 11 and a couple of its subsections. Given that tendency, did the committee also conclude that this provision would not be saved by section 1?

Senator Carstairs: Yes. On the basis of evidence we received from the Department of Justice in reference to section 1 of the Charter, we accepted that it would not be saved.

On motion of Senator Kinsella, for Senator Robertson, debate adjourned.

 

Canada-Japan Inter-Parliamentary Group

Fifth Annual Asia-Pacific Parliamentary Forum-
Inquiry-Debate Adjourned

Hon. Dan Hays rose pursuant to notice of March 13, 1997:

That he will call the attention of the Senate to the Report of the Canada-Japan Inter-Parliamentary Group on the Fifth Annual Meeting of the Asia-Pacific Parliamentary Forum, held in Vancouver, British Columbia, from January 7 to 10, 1997.

He said: Honourable senators, I should like to make a few comments arising out of the fifth annual meeting of the Asia-Pacific Parliamentary Forum held in Vancouver on January 7 to 10 of this year. Some weeks ago, a copy of the joint communiqué was tabled in this chamber and in the other place as a matter of record for members to examine should they wish. I should like to elaborate on what I think we have achieved by our participation in this particular organization.

The meetings, as I indicated, were held in Vancouver. It was the fifth meeting of the association, the first having been held in Tokyo, the second in Manila, the third in Acapulco and the fourth in Thailand. The meeting was attended by 92 parliamentarians from 21 member countries, and, of those, 15 member countries of the APPF are also members of APEC.

The conference was opened by our Speaker, the Honourable Gildas Molgat. The Speaker of the other place, Gilbert Parent, had participated in proceedings of the organization in September of last year at the executive committee meeting here in Ottawa. I was appointed chair of the meeting and Senator Oliver was elected vice-chair. I might point out that Senator Oliver is, I believe, the only person who was in attendance who had been at the founding meeting and every other meeting that the APPF has held.

The Prime Minister was able to be with us and addressed the plenary session on the first day, which also happened to be the day of his departure from Canada on his Team Canada mission - the third of those initiatives - to the Republic of Korea, the Philippines and Thailand. I am pleased that he was able to attend because that kept the custom of heads of government in the host countries attending and addressing the APPF conference.

All resolutions of the organization were dealt with on a unanimous basis. Even though the word "consensus" was the requirement for an agreement to pass a resolution, it was interpreted as unanimity. I think that is significant because of the diverse membership within the organization. The ability to actually achieve unanimity on controversial resolutions, with a diverse membership that includes the United States, Russia, China and other countries that during the Cold War period did not always find it easy to agree on a common position, is significant.

Honourable senators, I should like to quote briefly from the Vancouver Declaration, which was adopted at the meeting. The initiative was initially Japan's. Japan has played an extraordinary role in this organization and is, I think it is fair to say, responsible for its coming into existence, its chair being former Prime Minister Yasuhiro Nakasone of Japan. As I will mention in a moment, it is probably not surprising that Japan has played that pivotal role.

To read briefly from the Vancouver Declaration would be helpful in highlighting why this is an important organization and why its past and future work will be key in terms of the world we live in today evolving in a way that we want it to.

It reads as follows:

The international community is in the process of building a new world order now that the Cold War is over, and Asia-Pacific is attracting worldwide attention as the most dynamic region because of its remarkable economic growth. Countries in the region are cooperating more closely than ever, due in part to the increased economic exchanges in the area, greater trade and investment, and technological advances in fields like transportation and telecommunications, with an increasing sense of common destiny to live together and to share prosperity.

Quoting further:

...we should embrace our differences with the goal of creating something new, rather than seeing diversity as a source of potential conflict.

Skipping ahead, the declaration indicates:

What we are pursuing is the unity and diversity of the Asia-Pacific region, keeping mutual respect for the customs, values and traditions of various countries, while learning from each other's experience and seeking a common ground from which to build.

In order to achieve general prosperity in the Asia-Pacific region, it is important to form a consensus gradually through dialogue and by respecting the traditions of member countries. We hereby propose to name this gradual approach the "Asia-Pacific Way" as a guiding principle for all human beings in the 21st century.

The Parliamentary members of APPF are determined to make the Asia-Pacific community a common house where people can lead peaceful and prosperous lives. And we, as parliamentarians with considerable influence upon the policy-making processes of our respective countries, will strengthen the region's unity and foster mutual understanding, trust and friendship to promote cooperation in regional politics, security, the economy, and culture, through such regional inter-parliamentary organizations as the APPF, with a view to resolving and preventing problems that this region faces.

Honourable senators, the document goes on in some detail to deal with specific areas of interest, including security, the economy, the environment, law and order, human rights, education and cultural exchanges, the latter in particular being of special interest to two of our delegates who participated in the meeting in Vancouver, Mrs. Anna Terrana and Madam Maud Debien.

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This organization had its origins in a Japanese initiative to which Canada, the United States and most of its current membership agreed and participated in and moved forward on. Japan finds itself in an unusual position. It is a developed country within the Asia region, and it is a country that, like Canada and the United States, has become an economy and society that is remarkable in terms of the way in which wealth is shared among its citizens. It has done this mostly since World War II. The remarkable achievement of Japan to me is not because it is the second largest economy in the world or that it is a remarkable success story in terms of its influence in the world because of its successful industries, but because it has created an economy and a society where income disparity between its richest and poorest is not great, and, accordingly, its health and many other positive factors flow from economic decisions it has made. The United Nations annually indicates which are the best countries in which to live, and Canada and Japan vie for first place. The remarkable achievement of that country is what it has done for all its people, not, although remarkable as well, its great success as an economy.

Japan is positioned between - I do not mean geographically, although that is true as well - the America side of the Asia-Pacific region and the Asian side. As a developed economy, it is an example to other Asian countries, and a bridge between western values, which to some considerable degree it has adopted, and those traditional values of the Asian region that are in the process of evolution and change.

Professor Samuel Huntington, author of a recent book entitled The Clash of Civilizations and the Remaking of World Order, which was elaborated upon in a much-read article published in Foreign Affairs late last year, indicates that the post Cold War world has seen the three major elements of the worlds - the non-aligned, the Western, and the Russia-China led communist world - fragment into many cultural areas or areas of cultural strength such as Islam, the West, China, Japan, India, and that these are the driving forces of our time. Without agreeing with him, it provides a provocative and helpful way of looking at the changes that have taken place in the world. A country like Japan, finding itself between cultures and with a fully developed western-type economy in the Asia area, has this bridging role to play.

We and 24 other countries, through the APPF, at the parliamentary level, are playing a significant and important role in raising the level of understanding of the world in which we find ourselves living now, in sharp contrast to the one we lived in for so long under the Cold War. At the parliamentary level, we are making important progress through this organization and others in coming to understand what we must do to achieve the objectives that we all agreed on in terms of basic human rights and our commitment to a more open trading economy. That, by the way, is creating all sorts of difficulties, as we heard in Senator Stollery's provocative and helpful speech earlier today, in terms of the choices we have made for liberalized trade. This is a level of contact in which important work can be and is being done.

The other, of course, is APEC, which is at the executive level and is ongoing. This is Canada's year of the Asia-Pacific. Our APPF meeting was the first Asia-related event of this year. At the executive level, we are also seeing great progress being made, but it must be accompanied by our contact at other levels. In the area of business, we have also seen remarkable changes and contacts grow, but it is important at the parliamentary level as well.

Honourable senators, those are a few comments on the meeting recently held in which members of this Parliament participated actively. We started working on the hosting of this event three years ago, and it culminated in our hosting it earlier this year. The joint communiqué has now been tabled in both houses.

Those, honourable senators, are a few remarks that I thought might be of interest to you with respect to what has happened. Hopefully, they are indicative of the future of this organization and some of the good things it can do. I encourage you all to be interested in it and, if you have an opportunity, to participate in its activities.

I wonder if I might look across the way to Senator Kinsella. I believe Senator Oliver may wish to participate in this inquiry. If it could be adjourned in his name, that would be helpful.

On motion of Senator Kinsella, for Senator Oliver, debate adjourned.

Adjournment

Leave having been given to revert to Government Notices of Motions:

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 next, April 15, 1997, at 2 p.m.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Tuesday, April 15, 1997, at 2 p.m.

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