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Debates of the Senate (Hansard)

1st Session, 36th Parliament,
Volume 137, Issue 158

Tuesday, September 14, 1999

The Honourable Gildas L. Molgat, Speaker

SENATORS' STATEMENTS
ROUTINE PROCEEDINGS
- Transport
  - Tabling of Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada
- Transport and Communications
  - Referral to Standing Committee of Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada-Notice of Motion
QUESTION PERIOD
ORDERS OF THE DAY

THE SENATE

Tuesday, September 14, 1999

The Senate met at 9:00 a.m., the Speaker in the Chair.

Prayers.

SENATORS' STATEMENTS

Sandra Schmirler

Best Wishes for Recovery

Hon. David Tkachuk: Honourable senators, I rise today to speak on a very serious note about a Prairie icon who is fighting for her life. You may know Sandra Schmirler of Regina. Her four-member curling rink brought a gold medal to Canada from Nagano, Japan in 1998, to add to their already achieved three women's world championship medals.

Sandra is fighting to recover from a major cancer operation. I spoke of her last in April of 1994 when she and her team became the first Canadian women's team to win back-to-back world titles. At that time, my entire province of Saskatchewan toasted Sandra and her team-mates.

The Prairies produce very special people. The grace, class and skill that Sandra Schmirler embodies make her one of these people. I should like to ask you to make room in your prayers for this courageous and enchanting lady as she fights for her life against cancer in a hospital in Regina. I would like to send my thoughts and prayers, along with those of my wife and my family, and yours, honourable senators, for more strength and courage to Sandra and her family.

Question of Privilege

Hon. A. Raynell Andreychuk: Honourable senators, you will have received a notice of a question of privilege being raised by me pursuant to rule 43(5) which states:

Immediately upon receipt of a notice required in sections (3) and (4) above, the Clerk of the Senate shall arrange for the immediate translation and dispatch, to each Senator's office address in Ottawa, a copy of the original notice and the translation.

I trust that all honourable senators have received this notice. The question of privilege concerns the unauthorized release of working drafts of a report of the Standing Senate Committee on Aboriginal Peoples, to which I intend to speak later this day.

Business of the Senate

The Hon. the Speaker: Honourable senators, before I call the next item on the Order Paper, I should like to advise you that, due to the late session last evening, the Debates of the Senate are not available in both languages at this time. There simply was not sufficient time to produce and translate them. They should be available by about ten o'clock.

ROUTINE PROCEEDINGS

Transport

Tabling of Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, pursuant to subsection 47(4) of the Canada Transportation Act, I am pleased to table an order authorizing certain major air carriers and persons to negotiate and enter into any conditional agreement.

(0910)

Transport and Communications

Referral to Standing Committee of Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada-Notice of Motion

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, notwithstanding rule 58(1)(j), I give notice that, with leave, later today, I will move:

That, pursuant to subsection 47(5) of the Canada Transportation Act, the order authorizing certain major air carriers and persons to negotiate and enter into any conditional agreement, be referred to the Standing Senate Committee on Transport and Communications.

The Hon. the Speaker: Is leave granted for later this day, honourable senators?

Hon. Senators: Agreed.

QUESTION PERIOD

Transport

Private Sector Proposal to Purchase Air Canada- Effect of Rule Regarding Ten Per Cent Ownership

Hon. Noël A. Kinsella (Deputy Leader of the Opposition) : Honourable senators, I wish to thank the Leader of the Government in the Senate for having tabled in this place today the order made pursuant to the Canada Transportation Act dealing with the suspension of the competition rules for 90 days. I request that the matter be referred to the Standing Senate Committee on Transport and Communications so that at least one of the Houses of Parliament can be examining it. I wish to thank the minister for having done that.

My question to the minister relates to the policy of the Government of Canada concerning the 10 per cent ownership rule which is provided for by statute. Is it the intention of the Government of Canada to change that policy or will the policy be developed after whatever conclusion is reached in the relationship between Air Canada and Canadian Airlines International?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, to put it into context, the 10 per cent rule was part of the Air Canada Public Participation Act to ensure the widespread public ownership of Air Canada's shares and to prevent any party from having undue influence over the airline at that time.

The government will consider all the parameters of any proposal supported by stakeholders to restructure the industry and to ensure the long-term stability of the industry. In that context, the government will consider potential legislative and regulatory changes required to ensure a long-term solution to the financial difficulties in the industry, including changes to the 10 per cent rule.

Private Sector Proposal to Purchase Air Canada- Order in Council to Allow Discussion- Effect on Fair Competition

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, the order that has been in force holds in abeyance any application of unfair competition, while at the same time the Competition Bureau is sidelined in this process. In light of this, who will provide oversight for fair competition in the air industry?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, there has been a 90-day suspension of the rule and, as the situation evolves, there will be an examination of the proposals, including an examination by the Standing Senate Committee on Transport and Communications.

As the honourable senator will know, the government is seeking a solution to ensure the long-term viability of the airline industry while maintaining the benefits of competition for travellers and shippers.

I am sure that members of both Houses of Parliament will have an opportunity to examine any proposals very carefully.

Onex Proposal to Purchase Air Canada and Canadian Airlines-Influence on Price of Shares

Hon. Noël A. Kinsella (Deputy Leader of the Opposition) : Honourable senators, while this process is ongoing, can the minister advise the house if the value of shares in either or both airlines could be affected? Has the government given any consideration to the impact on the value of shares as a result of following the process it seems to be following? Is there any mechanism in place to ensure that there was no prior knowledge of what is unfolding that would affect the value of shares in either airline?

Hon. B. Alasdair Graham (Leader of the Government): I am not aware that there was any prior knowledge, honourable senators. The actions that have been taken by the government, by Onex and, indeed, by Air Canada have already had an effect on share prices. After the government announced the 90-day suspension, there was a great deal of activity in the public market-place. The objective of the government is to ensure that any final proposal will satisfy very special conditions before it is approved by cabinet. Those conditions will be the preservation of a competitive environment in which price gouging will be prevented, as well as the protection of services to remote communities and respect for workers' rights. In the final analysis, those conditions will ensure the best interests of all Canadians.

Onex Proposal to Purchase Air Canada and Canadian Airlines-Request for Names of Persons Involved in Discussions

Hon. David Tkachuk: Honourable senators, I wish to address a supplementary question to the Leader of the Government in the Senate.

There is no question that Onex will have to make public its participation in the market-place in the purchase of shares of Canadian Airlines and Air Canada not only after the announcement was made but prior to the announcement being made. Can the minister assure us that the government will make public a list of all those people in government departments or any other affiliated parties who may have been part of this deal so that we can find out whether they participated in the market-place prior to the announcement made by the minister in August of this year?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I am sure that question would be more appropriately put to the witnesses who may appear before the Standing Senate Committee on Transport and Communications.

Senator Tkachuk: Honourable senators, could we not have a list of the people who participated in this matter? It seems to me that public policy should not be carried out in private.

(0920)

It seems to me that probably a group of people participated in this process that led to the minister's decision. Certainly people in the minister's office and in the departments, and maybe even outsiders, would have known the decision of the government prior to its being announced, and they may have bought Canadian Airline shares and Air Canada shares with insider knowledge, and thereby profited greatly, regardless of what happens between now and when the final decision is made.

Senator Graham: I am sure that, through the various processes available to us as the situation evolves, that information will be forthcoming.

Question on the Order Paper

Request for Answer

Hon. Colin Kenny: Honourable senators, I have a question to the Leader of the Government. I would like to draw his attention to question No. 143 on the Order Paper. It was placed on the Order Paper on March 2, 1999, seven months ago. It has to do with tobacco smuggling. Can the Leader of the Government give me some indication as to how much longer I will have to wait before I get a response to this question?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, it is my understanding that the answer to that particular question is ready. However, there has been not just a cabinet shuffle but a shuffle among parliamentary secretaries as well, and it is the practice for the parliamentary secretary in most cases to consult with the minister before signing off on an answer. We are attempting to get that answer signed off as quickly as possible. If it is possible to do that today, we will do so.

I know that Senator Comeau also has an outstanding question on the Order Paper and I have been pressing to have the answer to that question. I believe Senator LeBreton also has an outstanding question. I wish to assure all honourable senators that I am asking the authorities and ministers responsible to have those answers brought forward as expeditiously as possible.

Senator Kenny: Given that notice was provided on this matter, can we expect to have the answers before any prorogation?

Senator Graham: I will attempt to fulfil the request that has been made, not just by Senator Kenny but by other honourable senators as well.

Transport

Private Sector Proposal to Purchase Air Canada- Effect of Rule Regarding Ten Per Cent Ownership- Possible Changes to Statutes- Government Position

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, on the question of the 10 per cent limitation which affects only Air Canada, I understood the minister to say that the government might look with favour on suggesting changes to lift that 10 per cent maximum, should the Onex proposal receive the support of the government. Is that a correct interpretation of what I heard?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, the government would entertain any necessary change in legislation that would facilitate an improvement in the long-term stability of the airline industry.

Senator Lynch-Staunton: Does that mean that any proposal or counter-proposal could benefit from a lifting of the 10 per cent rule, so that it would not necessarily be limited to the Onex proposal?

Senator Graham: I think that would be accurate, honourable senators. However, I am sure the government will examine any and all proposals on their merits.

Private Sector Proposal to Purchase Air Canada- Effect of Rule On 25 Per cent Foreign Ownership

Hon. John Lynch-Staunton (Leader of the Opposition): There is also a 25 per cent limitation on total foreign ownership of any airline in Canada. Is the government willing to entertain suggesting legislative changes to remove that limit or to increase it, in order to allow, in its assessment, a more sound passenger airline industry in Canada?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, Senator Lynch-Staunton is going down the road as to where the ownership may lie, whether the majority would be in American hands or Canadian hands. My understanding is that the offer by the company that would be known as AirCo to purchase Air Canada shares is subject to acceptance by holders of at least 66.6 per cent of each of the voting and non-voting shares. Following these transactions, assuming that holders of 66.6 per cent of Air Canada shares accept the offer by Onex, it would be estimated, and I say this purely for purposes of clarification, that Onex will hold 31 per cent of the equity of the new airline, that AMR, the owners of American Airlines, will own 14.9 per cent, and that other public shareholders would hold 54 per cent.

Senator Lynch-Staunton: Yes, that is the Onex proposal, but let us say there is another proposal which appears to be more interesting, more financially sound and more promising for the Canadian airline industry, but which includes foreign ownership beyond 25 per cent. Would the government then entertain a legislative change to allow that to take place, or is that 25 per cent maximum figure fixed and the government will not deviate from it?

Senator Graham: Honourable senators, I would have to make further inquiries and I do not know if the government has taken a position on that as yet.

National Defence

Conflict in East Timor-Duties of Peacekeeping Force

Hon. A. Raynell Andreychuk: Honourable senators, I should like to return to yesterday's questions with respect to East Timor. Is the Leader of the Government now in a position to indicate whether the troops that the Prime Minister indicated would be available to go to East Timor will take on a peacekeeping role or a logistics-support role?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, we are awaiting the specific request from the United Nations. A draft resolution is being circulated today, Tuesday, and it will be discussed today and tomorrow. I anticipate that a vote will be taken on Thursday. Presumably the draft resolution would contain the nature of the peacekeeping force to be requested.

Conflict in East Timor-Possibility of Parliamentary Debate on Sending Troops

Hon. A. Raynell Andreychuk: Honourable senators, if, in fact, Canada does send peacekeepers, will the government allow a parliamentary debate before our troops are sent into any field of action?

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I think such a debate would be entirely appropriate. As a matter of fact, I have discussed with my colleagues the possibility of some kind of a briefing for the appropriate committees of both Houses. I mentioned this to the Chair of the Standing Senate Committee on Foreign Affairs, Senator Stewart, yesterday, very late in the day. The possibility of having both Foreign Minister Axworthy, Defence Minister Eggleton and International Cooperation Minister Minna available for briefings on Friday is being examined. I hope that, before the day is out, I will be able to provide this chamber with further information.

The timing, of course, is related to Minister Axworthy's return to Canada from the APEC meeting in New Zealand. I understand he is also dealing with other responsibilities and meetings scheduled beforehand. However, at the present time I see a very real possibility of holding briefings for the appropriate committees in both Houses of Parliament this coming Friday morning. I hope to have further information on that before we adjourn today.

Senator Andreychuk: My question, however, was not a request for a briefing, particularly on a Friday. Some of us who do not live in Ottawa have a long distance to travel. The question was whether or not there would be a parliamentary debate, where all parties would have an opportunity to discuss and debate the issue of whether it is appropriate and feasible to send troops to East Timor.

Senator Graham: Honourable senators, I think it would be entirely in order, and under ordinary circumstances, that would be the case.

Hon. Marcel Prud'homme: Practically, honourable senators, with all due respect to Senator Andreychuk, it seems evident that a full briefing is in order, as the Leader of the Government has suggested. If we follow the announcement that is coming out progressively, Parliament may not be sitting. While there is no doubt that Parliament should be sitting, if it is not sitting, whether to have a debate in the House or in the Senate becomes quite irrelevant.

(0930)

I agree totally with Senator Andreychuk that Parliament should give its consent. However, in view of the circumstances, by the time Parliament has a chance to debate this issue it will be quite late and I wonder if any East Timorese will still be alive. Some members will have trouble coming back here for a full briefing because of the distance involved. We should begin by having a full briefing - not one for half an hour or an hour, but a total debate. If the House is back, then we will debate the issue - that is, if it is still relevant. Ample opportunity should be given after consultation to accommodate the members of the committee, who have their own scheduling concerns. The chairman and others are here, but the scheduling of any briefing must be acceptable to them, not only to the minister.

Will the minister ensure that consultation takes place for that briefing so that every member of Parliament who has an interest in international affairs - whether or not they are a member of the committee - will be able to attend? In other words, will the agenda be made in order to accommodate the members of the committee? Non-members should follow what the members of both committees decide. Will the government entertain that possibility?

Senator Graham: Yes, I would be very happy to do that and to make every effort in that direction.

Senator Prud'homme questioned whether or not there will still be East Timorese alive. The situation is serious. Information that I received within the past 45 minutes indicates that in West Timor, there are 120,000 displaced persons; and in East Timor, there is something in the order of 190,000 displaced persons. That is a total of 310,000 displaced persons. That is almost half the total population of East Timor.

On the humanitarian level, I can report that Canadian Ambassador Sunquist will be in West Timor today to look at the refugee camps. We anticipate that the Red Cross will be in East Timor today, and a full UN assessment mission will be in East Timor tomorrow. Air drops to deliver humanitarian aid are being contemplated, but the earliest that they could occur would be, perhaps, September 18.

Senator Prud'homme: I am sure honourable senators have seen the interview given by Ambassador Sunquist on television. I should like to convey my compliments to the ambassador for the excellent interview that he gave in French. I learned more in that brief interview than I will probably learn in any briefing. I wish him well. We should not hesitate to acknowledge such accomplishments. He was superb in his interview on Radio-Canada and I, for one, would like to ask the Leader of the Government to express our thanks to him for giving us the beginning of an explanation that should be further developed by the ministers involved.

Senator Graham: Honourable senators, I should be pleased to do so. Senator Prud'homme's remarks underscore the importance, value and expertise of our diplomats who serve Canada with such great distinction in all parts of the world.

Replacement of Sea King Helicopters- Delays in Awarding of Contract

Hon. J. Michael Forrestall: Honourable senators, my question is for the Leader of the Government in the Senate. Having attended the air show at Canadian Air Force Base Shearwater on both Saturday and Sunday; and having rubbed elbows with probably 250,000 people, both on the base and in the streets and hills surrounding that base, I am hard pressed to find the words strong enough to urge upon the Leader of the Government the necessity and urgency of the government in calling for active offers to replace the ship-borne helicopters.

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I will be very pleased to bring that comment to the attention of my colleagues, whom I may or may not be able to meet with in the cabinet meeting at ten o'clock this morning, depending on how things are progressing in this chamber. As the Honourable Senator Forrestall knows, I am a great supporter of a program to replace the Sea Kings. I shall bring his new and latest observations to the Minister of National Defence and to my other colleagues.

Senator Forrestall: Can the minister indicate if there is, to his knowledge, a particular reason why the government has not taken the final step to call for proposals?

Senator Graham: I am not aware, honourable senators, of any particular reason. Again, I will bring Senator Forrestall's remarks to the attention of my colleagues.

Foreign Affairs

Conflict in East Timor-Possible Investigation of Prior Events-Government Position

Hon. John G. Bryden: Honourable senators, I should like to direct a question to the Leader of the Government in the Senate or to the Chairman of the Standing Committee on Foreign Affairs. This relates to the situation in East Timor. In all the discussion relating to what is occurring now in East Timor, is any agency or anyone examining how this was allowed to happen? There was considerable advanced warning that if the vote went the way that it did, exactly what is happening now would happen. Yet we have our missionaries of democracy wandering around the world. This is only the latest instance of promoting such a vote and assuring the people that they some how would be secure. The vote occurred, people voted, and now they are being slaughtered or driven out of their homes.

I am reminded that in the best wishes and intentions, Christian missionaries used to go proselytizing around the world. In the process, they saved a lot of souls and destroyed a lot of cultures. In this instance, we are pushing the democracy agenda and it appears to be costing a lot of people their lives.

I should like to ask the minister or Senator Stewart if there is any avenue available that could be pursued to prevent this sort of thing from happening again and to see if some investigation should occur in relation to this sequence of events.

Some Hon. Senators: Hear, hear!

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, Senator Bryden has raised a valid point. It is almost an embarrassment to the world that such carnage could happen to innocent people exercising their democratic right to cast a ballot. They are being punished. This is not the first time that this has happened in various parts of the world. I witnessed it firsthand in 1986, in the Philippines, where the first major international observance mission of an election took place. I was privileged to take part in that mission and to visit the Philippines again in the following year. I have witnessed similar situations in other parts of the world as well. I will not go into a long list, but I will state that such monitoring is a responsibility of the United Nations and all its member countries.

(0940)

As I indicated earlier, a United Nations assessment team is presently monitoring the humanitarian situation in East Timor and trying to find the answers to how this could have happened. Members of the United Nations and particularly member-countries of the Security Council are seeking ways to anticipate and prevent these kinds of events in the future. The UN anticipated difficulties but certainly not the extent of the carnage that is being inflicted upon the innocent people of East Timor.

The honourable senator raises a valid point which I will bring again to the attention of my colleagues so that the appropriate authorities will press it further at the Security Council of the United Nations.

Hon. A. Raynell Andreychuk: Honourable senators, I have a supplementary question. I thank Senator Bryden for returning to my question of a few days ago. The United Nations delayed the election in Angola because they knew there were difficulties on both sides. They delayed in Mozambique. Why did they not delay this vote? Why did we not press them to delay the vote?

The leader said that it was known there would be some difficulties. There is well-documented evidence that forewarned of the present events. Canadian representatives were made aware of it, as were members of the United Nations.

They were obviously hoping they could thwart the dangers. They appealed for calm and reason, but were they not ready for the inevitable problems if the anticipated positive outcome did not arrive as they thought it would?

Senator Graham: Honourable senators, it is a question of judgment. History has recorded many errors in human judgment. We must choose whether to participate in a particular democratic exercise in democracy at a given point in time and decide whether achieving one particular step towards democracy is worthwhile.

I cite as an example Paraguay. I witnessed elections in Paraguay in 1989, 1991 and 1993. I recall the discussions in 1989 when the opposition parties were being asked by some not to participate, while others felt their participation was a positive step in the right direction. The Colorado Party led by President Stroessner had, for 35 years, run the country under military rule. In 1991 an independent was elected as mayor of the capital city of Asunción. Clearly, very soon after the first so-called democratic elections in 1989, giant strides had been made.

It is a question of human judgment in choosing the most appropriate window of opportunity. Those responsible for taking that decision in this case felt the vote should go forward in East Timor, for better or for worse. Whether it was an error in judgment or not, only history will record. Now that it has happened, the nations of the world must get together and look after the people of East Timor as best we can.

Hon. Marcel Prud'homme: Honourable senators, many years ago, I clashed vigorously with a certain member of the House of Commons on the Middle East question. As I reflect on my old files from those days of the epoch, I realize I must pay homage to that man because he was the first to be a great defender of East Timor. He was Reverend Roland de Corneille from Toronto. He attracted the House of Commons' attention to that area of the world before 1984.

In the next session, I will remind the minister that he gave the go-ahead to the next Standing Senate Committee on Foreign Affairs - although most likely I will not be a member - to take up this issue. If not, I will start a movement here on the Hill to see that the issue is addressed.

Senator Graham used the word "anticipate." It is a very important word. We must anticipate what the year 2000 will bring. Anyone who is a good reader of the future will know that we will face immense difficulties with nationalities who want to succeed not by use of democratic methods but by use of violence. We need only to look to what is going on in Russia now.

Answers to Order Paper Questions Tabled

Public Works-Government Contracts with BMCI Consulting Inc.-Request for Particulars

Hon. Sharon Carstairs (Deputy Leader of the Government) tabled the answer to Question No. 135 on the Order Paper-by Senator LeBreton.

Customs and Excise-Implications of Tobacco Smuggling Activities-Request for Particulars

Hon. Sharon Carstairs (Deputy Leader of the Government) tabled the answer to Question No. 143 on the Order Paper-by Senator Kenny.

Agriculture and Agri-Food Canada- Research Conducted with Monsanto and Other Industry Partners-Request for Particulars

Hon. Sharon Carstairs (Deputy Leader of the Government) tabled the answer to Question No. 145 on the Order Paper-by Senator Spivak.

Environment Canada-Delegation to Meeting on Biosafety Protocol in Cartagena, Columbia- Request for Particulars

Hon. Sharon Carstairs (Deputy Leader of the Government) tabled the answer to Question No. 146 on the Order Paper-by Senator Spivak.

Business of the Senate

Answer to Order Paper Question Delayed

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, I must say to Senator Comeau that his question, No. 147, is the last written question. We do not yet have an answer for it. I have been told that some work has been done on the question and that they will deliver it to us as quickly as possible.

Hon. Gerald J. Comeau: I suppose because it is a fisheries issue, it is not all that important.

ORDERS OF THE DAY

Public Service Pension Investment Board Bill

Motion for Allotment of Time for Debate

Hon. Sharon Carstairs (Deputy Leader of the Government), pursuant to notice of September 14, 1999, moved:

That, pursuant to rule 39, not more than a further six hours of debate be allocated to dispose of third reading of Bill C-78, an act to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act and to make a consequential amendment to another Act; and

That when the debate comes to an end or when the time provided for the debate has expired, the Speaker shall interrupt, if required, any proceedings then before the Senate and put forthwith and successively every question necessary to dispose of the third reading of the said bill; and

That any recorded vote or votes on the said question be taken in accordance with the provisions of rule 39(4).

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, we are quite willing to forgo debate on this motion in the hope that we can be a little more flexible in the closure debate in allowing amendments.

(0950)

I know this is a violation of the rules, and I know that I am considered to be a stickler for the rules, but we are in an unusual situation so we must take unusual steps.

We have three or four speakers who have amendments. Foregoing the two-and-one-half-hour debate on the notice of motion would allow them time to propose their amendments, at which time we could vote on them in the same way we voted yesterday. That would be our suggestion.

Senator Carstairs: I thank Senator Lynch-Staunton. That would be agreeable with this side. However, I wish to make it very clear that this is not a precedent. The amendments will be accepted within the six-hour time of debate.

However, I would ask that, as soon as those amendments are read or are, in lieu of being read, distributed, they be distributed with speed to all members of the Senate so that, at the time of the voting, all honourable senators will have the exact wording of those amendments at their seating place.

Senator Lynch-Staunton: Perhaps those who have amendments could see that they are photocopied now so that, as soon as they are tabled or presented, the copies would be available.

Senator Carstairs: That is a wonderful suggestion. Doing so would make things easier for the Table.

Hon. Marcel Prud'homme: I am sure that I would be echoing my friend Senator Gauthier, as well as several other senators, when I say that these amendments should be put to us in both languages. Otherwise, you had better be ready to be delayed.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): So that all honourable senators are clear, it is my understanding, and I would ask His Honour to correct me if I am wrong, that we are entitled to two-and-one-half hours of debate on the motion now before us, the time allocation motion. No later than two-and-one-half hours into the debate, immediately after the conclusion of that debate, we move directly to debate on the bill. We are then entitled to up to six hours of debate. At the end of that six hours, all questions will be put ad seriatum.

As we are operating today on the Friday rules, does that mean that we do not see the clock at four o'clock if we have not concluded the six hours of debate? Do we carry on beyond four o'clock, or do we see four o'clock and the motion to adjourn is deemed to have been put, as on a Friday? If it is the second scenario, do we then adjourn until Monday, which is what would be provided for in the Friday adjournment motion at four o'clock?

Senator Carstairs: Honourable senators, there are a number of issues here.

I thought we had an agreement to waive the two-and-one-half-hours. That was the suggestion of Senator Lynch-Staunton in order that the other side be allowed to make their amendments. Clearly, if they want to engage in a two-and-one-half-hour debate, then we will go to the letter of the law with respect to time allocation, which would mean no amendments. That is their choice. I have provided them with that option.

As to what day of the week it is today, a Tuesday is a Tuesday is a Tuesday is a Tuesday. It certainly indicates on the Table that it is Tuesday. It indicates in our Order Paper for today that it is a Tuesday. When I was asked yesterday if the understanding of the rules relating to time of sitting for Fridays would apply today, I indicated that that was my understanding. However, at no time did I agree that today would be a Friday. The motion to sit today clearly rules that it is a Tuesday.

Therefore, it would be my clear understanding that. if we could not finish our business today, we would sit at the normal time tomorrow, at two o'clock.

The Hon. the Speaker: Honourable senators, we are in an irregular mode once again. There is a motion before us, and I should allow only one speech on the motion. However, I think we need to clarify the situation. If it is agreeable to the Senate, I would propose that we discuss this question to settle where we are at. Is that agreeable, honourable senators?

Hon. Senators: Agreed.

Senator Kinsella: Honourable senators, I just wished to have clarification of the rules, which I think is something we can do at any time.

Unlike the Deputy Leader of the Government, I do not have copious notes in front of me on this matter. Unfortunately, we do not have the Debates of the Senate before us yet, but I think when they do arrive you will find that I rose in this place and asked very clearly, "Do the rules that provide for our sitting time apply tomorrow?" and the answer I was given was "yes." Therefore, I turned to the rules that apply for Friday. I merely asked the question. I will be quite happy to take the guidance of the Speaker on this.

Senator Carstairs: In order to provide just a little further clarification to His Honour and to members of this chamber, I would make it clear that rule 39(5)(a), which is part of the time allocation motion, indicates that if we are in the six hours of debate, whether it is Friday or not, we would not adjourn. Therefore, we would not see the clock at four o'clock. That is a clear rule with respect to the Senate. In fact, the motion that was introduced yesterday for today reads very clearly that the sitting would be on Tuesday.

It is true that Senator Kinsella asked a question, and the blues say the following:

Is it the understanding that the rules relating to time of sitting for Fridays will apply tomorrow?

I responded:

Yes, honourable senators, that is the understanding.

That agreement relating to hours of sitting was reached between Senator Kinsella and me when we discussed the matter in my office yesterday morning. I was the one who raised it because I wanted to make it possible for all members of the other side to get to their caucus in Calgary.

Senator Kinsella: I thank the honourable senator for that. That was my second question. Indeed, I read the rules that way as well, as far as what happens when a time allocation motion has been passed. When that debate is ongoing, should it be at twelve o'clock midnight on a Monday to Thursday at twelve o'clock midnight we would not see the clock but would continue. When the eight hours has been exhausted, all votes would be put ad seriatum until they are concluded.

There is another part of the process that I think we need to consider, and that is the question of Royal Assent. If by four o'clock today Bill C-78 has not been passed, we will go beyond four o'clock until the eight hours has been exhausted, at which point all questions are put and the matter is resolved. I have a slight suspicion that it will be resolved in favour of the view taken and expressed by the majority. However, we are then in a situation of Royal Assent.

Can the house adjourn for Royal Assent when, by virtue of the four-o'clock rule, we are to have had the motion to adjourn overtaken for purposes of the closure motion? It seems to me that this is only for purposes of the closure motion. A letter could be received today from Rideau Hall announcing that His Excellency would be here, as I understand that bills have been adopted by this house, including Bill C-32. However, if we have yet to vote on Bill C-78 before four o'clock, could that notice come to affect our decision? I raise this matter for clarification only.

(1000)

Senator Carstairs: Honourable senators, the rule is a little clearer on Royal Assent. For interested members of the Senate, I am referring here to rule 135, with particular reference to section 4, which says:

If the Senate has completed its business for the day prior to the hour fixed in the message received pursuant to section (2) above, the Speaker shall suspend the sitting until not later than five minutes before the time set for the arrival of the Personage outlined in the message....

Therefore, if in fact we have given notice of Royal Assent - and I understand that we may be able to do that shortly - even though we have completed all other business, of course we could continue. In fact, we could continue beyond even a four o'clock rising in order to hold Royal Assent, and one would assume, therefore, that any bills that we have passed in this chamber could then be dealt with at that Royal Assent ceremony.

Senator Prud'homme: Honourable senators, I should like to add that when I left last night, I was convinced that the rules that apply to Fridays would be applied today. I came to that conclusion after listening to the exchange between Senator Kinsella and Senator Carstairs. I did not know that there was this meeting in Senator Carstairs' office. I do not believe all honourable senators were invited, and there was no need for such a meeting. The answer which Senator Carstairs gave to Senator Kinsella left me with the idea that today would be treated as a Friday, as far as the rules were concerned. However, now it seems that other, later consultations took place, and that is what happens when we do not follow the book. Thus, honourable senators, we will finish up this session not following the book at all. However, I hope by the next session some honourable senators will have read the red book of rules, as I have done this summer, and as I intend to do again. I feel that some members of the Senate should become another Royce Frith of the red book, the Rules of the Senate of Canada, and that would make the Senate very interesting.

Senator Lynch-Staunton: He made it up as he went along. He did not have any rules. There were no rules, then.

Senator Prud'homme: He was a pain for the Conservatives.

The Hon. the Speaker: Honourable senators, a number of questions have been asked, which I frankly cannot answer. It is not for me to decide whether today is Tuesday or Friday. That is a decision that only the Senate can make. I have no order from the Senate that today is deemed to be Friday and, therefore, I must function on the basis that today is Tuesday.

I might add that if it were to be Friday, there would be other complications, for example, the privilege motion, which I would then have to consider under rule 43 (9). There would be some complications. Unless I am guided otherwise, I must declare that today is Tuesday. Can we have that clearly established? A number of things will flow. Therefore, I assume that that is clearly established.

Senator Kinsella raised the question of timeliness. Under the rules, two and a half hours are allowed to debate the motion that is presently before us, and that is whether or not we will accept the motion of the Honourable Senator Carstairs that there be a time allocation. If that debate is concluded before two and a half hours have elapsed, then we move directly into the debate on the bill itself.

Senator Lynch-Staunton has asked whether there would be the consent of the Senate to have amendments moved during that debate, contrary to the rules. I must ask the Senate, is there an agreement of the Senate to allow such motions?

Senator Carstairs: Honourable senators, there would be such agreement provided we do not have the two and a half hour debate on the time allocation motion itself.

The Hon. the Speaker: I had understood from Senator Lynch-Staunton that that was his proposal, that there would be no debate, and that we would go directly into the vote. In other words, we would have a vote on the motion for time allocation, and then we would go directly into debate on the bill. Is that agreeable to all honourable senators?

Hon. Senators: Agreed.

The Hon. the Speaker: I must deal now with the question that was raised by the Honourable Senator Prud'homme, and that is the matter of the language of the amendments that are to be put.

Senator Prud'homme, we had this debate some time ago on a motion by the Honourable Senator Grafstein. We then looked at all the rules, and it is clear that motions and amendments need not be in both languages. They can be in either French or English; however, it is not necessary for them to be in both languages. Either language is acceptable. Therefore, I wish to make it very clear that there may not be translations for all of the amendments, and if there are no translations, I will not entertain a point of order in that respect because there will be no point of order. I wish to make that very clear so that we can eliminate any possibility of discussion later on. Is that clear, honourable senators?

Senator Prud'homme: It has always been understood that in this country - and this has led to many bad discussions in committees of the Senate and of the House of Commons - any Canadian, including senators, can introduce a motion in either language. It is then left to the staff to put it into two languages. For instance, we had one this morning, which was hand-written by Senator Andreychuk, who very rightly put her motion, by hand, in English. However, the rule clearly says that the Clerk must then translate that motion and send it to each senator. We have an example right now in our hands.

Of course, a senator is not required to introduce anything in both languages. His duty is to introduce whatever he or she wishes. It is then left to the staff, under the responsibility of the Clerk, to translate and circulate that motion. If it were otherwise, then it should so state in the rules. I am positive on this.

The Hon. the Speaker: Honourable Senator Prud'homme, I do not think we should extend this discussion. It is clear that motions and amendments need not be in both languages. That is a definite situation, that one or the other will prevail.

You mentioned the case of the privilege motion. That is a different case. I refer you to rule 43(5), which clearly states that there must be a translation. That provision does not appear elsewhere in our rule book. Therefore, there is no question in that regard, one way or the other. Obviously, we try to accommodate all honourable senators. If there is time, we will provide the translation. However, I cannot guarantee that we will have the time to do that. If we do not, I repeat, those motions will be in order in whatever of the two languages they come.

Senator Prud'homme: Honourable senators, I give notice that during the next Parliament, I will meet with all the other members of this house who do not like that state of affairs, so that we can change the rules accordingly. Nothing should be circulated unless by agreement. Language is so technical, it is difficult enough to understand one language without being required to do so in someone else's language.

The Hon. the Speaker: What will be done insofar as the rules are concerned will be entirely up to the Senate.

Hon. Anne C. Cools: Honourable senators, I should like to add a little bit to this thought, because the question of bilingualism and the question of translation is frequently raised. I believe all honourable senators have sympathy with the fact that, wherever possible, documentation should be translated. However, we must differentiate between two questions: first, the spoken word, and second, the written word. The document that Senator Andreychuk caused to be circulated by the Clerk of the Senate is a written document. Therefore, that is a different situation. Motions and the moving of motions in this chamber are part of the spoken record. The tradition is that when we speak, simultaneous translation is provided, but we must differentiate between that which is spoken and that which is written.

(1010)

Senator Prud'homme: Honourable senators, I do not like to pontificate, but I do not need any sympathy. When people start saying "I sympathize," I assure you that I will explode, and I am not the only senator who feels this way. I see another senator who is about to explode, too.

It is not a question of sympathizing or of being patronizing. It is a question of what is right. What is right is that a senator is able to function only in one language. Of course, that is what I have been defending all across Canada.

The amendments presented yesterday were very technical. The fact of the matter is that a senator who comes to the chamber to do his or her work cannot understand the proceedings unless they have a good knowledge of both languages. Senator Spivak put her motion in two languages, hence we could all understand it. The point is that if we receive amendments in only one language, one senator is able to function better than another, and in this Senate no senator should be put in that position.

The Hon. the Speaker: Honourable senators, I repeat that we will do everything we can, from a staff standpoint, to provide translations. However, there are time limitations, and we may not be able to do that at times, but we will certainly do everything we can. I agree with that principle.

Honourable senators, the question before the Senate is the motion by the Honourable Senator Carstairs, seconded by the Honourable Senator Robichaud (L'Acadie-Acadia ), that pursuant to rule 39, not more than a further six hours of debate -

Hon. Senators: Dispense!

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

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "yeas" have it. I declare the motion carried.

An. Hon. Senator: On division.

Motion agreed to, on division.

Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Kirby, seconded by the Honourable Senator Sibbeston, for the third reading of Bill C-78, to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act and to make a consequential amendment to another Act.

Hon. A. Raynell Andreychuk: Honourable senators, as you are aware, I was not part of the committee studying this bill. When this bill was first introduced in the Senate, I determined that it was just another piece of legislation that was more of a housekeeping nature. I quickly learned that, on the contrary, it was a fundamental piece of legislation that was of particular concern to the many Canadians who have served in the military, the RCMP and the Public Service of Canada.

My reason for rising today flows from a number of issues that trouble me in relation to this bill. These issues have been brought to my attention by the members who will be affected by this legislation. I can say that only the gun control legislation created more communication in my office, and more attention in the Province of Saskatchewan, than this bill. I have received correspondence by telephone, fax, e-mail and in person. This is not an issue that swirls around Ottawa; it is an issue that affects many Canadians.

My concern also is that there has not been a full opportunity for many people to come forward in a manner where they would be accepted. It appears that their chances of speaking to this bill have come at a time when the government has already made up its mind that it will not move, will not budge and will not listen to reason from any source.

In a parliamentary democracy, honourable senators, it is unfortunate that a government would make up its mind and not listen to people who are affected by legislation. Surely the government does not have a special position in this legislation. The government's role is to administer this pension plan on behalf of the citizens of Canada, and on behalf of those who will benefit from the plan. I have heard from citizens in Canada who believe that members of the plan should be an integral part of the management of this plan. Likewise, I have heard, in volumes, from those who will be directly affected by this plan.

The two issues that concern me greatly are, first, that the government continues to be litigious. The government puts forward legislation that it knows will be subject to a court review. As Senator Eugene Forsey said forcefully, it is not for a government in a parliamentary democracy to put people through the expense of a court hearing; put them through the trouble, the agony and the time to go through a court process to prove that legislation is wanting. We all know that legislation can end up in court. However, if already there are fundamental signals that there will be court scrutiny of the legislation, surely the government should listen; surely the government should answer; surely the government should amend its legislation to be in compliance with the reasonable comments and reasonable statements made by lawyers.

Honourable senators, a trend appears to be emerging with this government. I recall the gun legislation when section 35 of our Constitution was not appropriately applied. The aboriginal community had not been consulted. At that time, I recall very clearly Minister Rock saying, "If it does not comply, take us to court." In a democracy as mature as ours, surely people should not be forced to take their government to court in order to have them do the right thing. The government should do the right thing.

At every turn, people appealed through the committee, by way of the opposition, that the government take a second look at this legislation and make certain that it is in compliance and would not lead to immediate court scrutiny; yet the government has refused to listen.

My other difficulty with this legislation is that many people have asked to have someone on the management board from the unions to represent the people who will benefit from the pension. The government has said, no, not until the legislation is passed. The government is essentially saying that your opinions and your ability to contribute to the success of the fund are not important, and that it will determine later whether it thinks this is an appropriate option. What makes the government think that its experts are any better at managing a fund? Why should the members of a pension plan accept the government's superiority in this case, a government that, over many years, has created much of our debt and deficit?

Political parties, in their wisdom, perhaps, choose good people on management boards. However, surely those who are so directly affected by their pension should have a say. No one has come forward, as I understand it, to say that they should have complete and absolute control over the management of this fund. However, since they will be so directly affected, some representatives from the unions or employee groups should be at the table. Is this not good parliamentary practice? Is this not good democratic governance? Is this not the way to build up good social capital for the citizens of Canada?

What would it have taken to have had the government add to the management process a measure of union representation? It would have given an assurance to the people that their funds are being looked after, and they would have had a double check on the system.

Nothing worries people more than their health today and their financial well-being in the future. Surely what civil servants, retired military personnel and retired RCMP officers are asking for is the chance to be part of the process and a chance to determine their own future. The government, in an arbitrarily and cavalier way has said, "Your opinion does not count." In a paternalistic way the government has said, "You are not as competent as we are to judge what is in your best interest." Surely, this is not the Canadian way. I appeal to the government to reconsider its position.

(1020)

The money looked at by this plan will grow quickly to exceed $100 billion. The longer the government waits, the greater the consequences of a flawed structure. The government borrowed from its flawed legislation on the CPP Investment Board using that as a framework for this board. It did not bother to ask anyone whether the legislation was appropriate for an employee pension board. It did not bother to ask anyone what kind of skills directors should bring to the board table. It did not bother to ask that the relationship between the board and the actuary be spelled out in law. It did not bother to ask anyone if the board would be subject to adequate safeguards to protect the interests of both taxpayers and plan members.

Honourable senators, the government did not bother to listen to any of the testimony before either the Standing Senate Committee on Banking, Trade and Commerce or the Natural Resources and Government Operations Committee in the other place. It ignored everyone and everything.

The government promises to sit down with its unions to negotiate joint management as soon as the bill is law. However, for now, the government feels that the bill is just fine. Is this the way to govern in a democracy? Is this the way to be inclusive? Is this the way to ensure that people contribute and are part of a parliamentary democracy?

There must be an early review of this board and its operations to ensure that a board charged with investments in excess of $100 billion is not mismanaged or incapable of carrying out its mandate in a professional manner. It must not be allowed to continue without the input of plan members. Ideally, Parliament should have a role in reviewing the nature of the plan, its management practices, and attempts by the parties to find common ground in reaching agreement on changes to the plan.

If not a parliamentary committee, then some kind of other independent review is warranted. While the legislation creates consultative committees, the acrimonious circumstances under which these are to be created call into question their potential effectiveness as vehicles for further reform. There must be a formal means to monitor the effectiveness of the committees and to monitor the board's management practices.

In committee, the government pointed to the six-year auditor's review of the board's accounting and management practices, namely, the special examination, as a reason not to make parliamentary review mandatory after three years. Given the amount of money to be invested, six years is far too long to wait for such an internal review. A special examination is not the same thing as public hearings by a review committee mandated to call witnesses, hold public hearings and make recommendations on several issues to which the government is committed to respond in writing.

We must also remember that the auditor is not independent. He or she is appointed by the board. How anxious will the auditor be to expose bad managerial practices on the part of those whose favour must be kept if the appointment is to be kept? At least there is an appearance of difficulty here.

We believe that the legislation should be amended to provide for a mandatory review within three years, as was recommended last June by the Senate Banking Committee. In this regard, the committee's report is worth noting. It states, in part:

Bill C-78 would establish a Public Sector Pension Investment Board to invest employer and employee contributions to the federal public service pension plans. The Committee believes that, since the creation of the proposed Board and the investment of contributions by it would be such a significant change from the current situation, the operation of the proposed Board, as well as its investments, communication vehicles, etc., should be reviewed after an appropriate "start-up" time to ensure that the proposed Board is operating as planned. This is particularly important given the Committee's concerns about governance and accountability. For this reason, the Committee recommends that:

the President of the Treasury Board initiate a Parliamentary Review of the operation of the proposed Public Sector Pension Investment Board no later than three years after the coming into force of Bill C-78.

Motions in Amendment

Hon. A. Raynell Andreychuk: Therefore, honourable senators, I move:

That Bill C-78 be not now read a third time but that it be amended,

(a) on page 28, by adding after line 7 the following:

"THREE-YEAR PARLIAMENTARY REVIEW

53. (1) The administration of this Act shall be reviewed on a permanent basis by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established for that purpose.

(2) The committee designated or established for the purpose of subsection (1) shall, not later than three years after the coming into force of this Act and every three years thereafter, undertake a comprehensive review of the provisions and operation of this Act and shall, within a year after the review is undertaken or within such further time as the House of Commons may authorize, submit a report to Parliament thereon including a statement of any changes the committee would recommend."; and

(b) by renumbering clauses 53 to 231 and any cross-references thereto accordingly.

Honourable senators, I have another amendment to which I would like to speak. Should they be moved separately, Your Honour?

The Hon. the Speaker: It would be preferable if you moved both of your amendments at the same time at the conclusion of your speech.

Senator Andreychuk: Honourable senators, it is most unfortunate that the government senators are unwilling to enshrine in law recommendations made by a Senate committee. Ideally, this review would be done by a parliamentary committee as recommended by the Banking Committee last June. However, anticipating that there may be difficulty with the first amendment, I am proposing that some other independent committee be formed.

I believe that a parliamentary committee and an independent review committee would be desirable. Certainly, one is not dependent on the other. My preference is that there be at least a parliamentary committee. Therefore, I suggest that, in the absence of any request from the government that such a review take place, a committee of Parliament of its own initiatives ought to hold hearings within that period. The hearings would examine the effectiveness of the consultative bodies created by the bill, the extent to which recommendations of the Senate had been acted upon, the management of the plan, and any other public-sector pension issues that interested parties and parliamentarians may care to bring before it.

One way or another, whether or not it is done by a committee of Parliament, there ought to be an independent review of this board. Perhaps, if government members are not willing to have a parliamentary review, they would be open to hearing from an independent review. Therefore, I move:

That Bill C-78 be not now read a third time, but that it be amended,

(a) on page 28, by adding after line 7 the following:

"THREE-YEAR REVIEW

53. Three years after this Act comes into force, the Minister shall cause an independent review of the Act and its administration and operation to be conducted, and shall cause a report on the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the review is completed."; and

(b) by renumbering clauses 53 to 231 and any cross-references thereto accordingly.

[Translation]

The Hon. the Speaker: It is moved by the Honourable Senator Andreychuk and seconded by the Honourable Senator LeBreton:

That Bill C-78 be not now read the third time but that it be amended.

(a) on page 28.

Hon. Senators: Dispense!

[English]

(1030)

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

Hon. Sharon Carstairs (Deputy Leader of the Government): No.

The Hon. the Speaker: Are there any other honourable senators who wish to take part in the debate?

Hon. Marjory LeBreton: Honourable senators, I am very pleased to participate in this most important debate on Bill C-78. As many of you know, I am a native of Ottawa. I say that to make the point that I am perhaps more sensitive than most to "Ottawa bashing." I heard the argument advanced, when the $30-billion pension grab was first proposed, by those who supported the government's actions that Canadians will not give a hoot about a bunch of so-called "fat cat" public servants in Ottawa. Unfortunately, public-service and Ottawa bashing has reached new heights. They are targeted by the Reform Party with its hot-button anger-driven politics, which creates a them-against-us mentality, and they are unsupported by the government, which has asked public servants to endure every manner of sacrifice, downsizing, restructuring, which I hasten to add they supported and implemented. Now these very same public servants are expected to sit silently by as the pension fund surplus is picked from their pockets by a government that will use the money to play its deficit-surplus-debt-reduction shell game.

When I speak of public service, honourable senators, I of course refer to the entire public service, including the RCMP and the military. Who are these so-called "fat cat" public servants who live in the Ottawa area? Just as a matter of record, Ottawa is not a public service town. The vast majority of people who serve in the public service live elsewhere in the country. As a matter of fact, less than one-third of the public servants who serve our government live in the greater Ottawa area.

Honourable senators, public servants are the backbone of government. Before Parliament recessed last June, we all received a book outlining the services provided to Canadians, services that impact on their day-to-day lives. These services - and that book was a very interesting read - go unnoticed by most Canadians - that is, of course, until the services are not there, and then there is great hue and cry.

One of the arguments we hear is that the public servants will get the pensions they have been promised and therefore the surplus belongs to the government. But will they get the pensions they have been promised? A previous Liberal government rolled back promised pension benefits through the 6-and-5 program, and as Sharon Hamilton of Treasury Board testified before the Banking Committee, the government could very well do so again.

Honourable senators, just like 6-and-5 and wage-and-price controls in the past, this Liberal government of Jean Chrétien and Paul Martin, Jr. has consistently broken its promises to the public service. Back in 1993, the Liberals published a pre-election paper entitled "Liberal View on Government Reorganization." In that document, we were told that the Liberals were committed to the process of collective bargaining; nevertheless, their very first budget delayed for two years the resumption of collective bargaining on substantive issues like salaries.

At the same time, they promised to bring in legislation to protect public servants who blow the whistle on illegal or unethical behaviour. No such legislation has been introduced, even though, as members of Agriculture Committee will attest, it is badly needed. Just ask Dr. Chopra.

The Liberals told the Professional Institute of the Public Service in a 1993 questionnaire that changes to the workforce adjustment policy would best be done through negotiations - another commitment not worth the paper it was written on. The 1995 budget unilaterally suspended some provisions of the workforce adjustment directive for several major departments, and I will name just a few to see how major they are: Agriculture and Agri-Food, Environment, Finance, Fisheries, Human Resources, Industry, National Defence, Public Works, Transport, and Treasury Board. Is there anyone left?

Their 1993 Red Book also promised to cut spending on outside professional services by $620 million per year. Those sleazy Tories and their crony friends had to be stopped! Today, honourable senators, government departments are crawling with consultants doing the work that used to be carried out by the public service. Spending on professional and special services climbed by $500 million between 1993 and 1997 - in four short years - 1997 being the latest year for which public accounts data are available. Honourable senators, $620 million and $500 million is $1.1 billion. Talk about broken promises - expensive broken promises!

Honourable senators, this government cannot be trusted to treat the public service fairly. We are consistently told by this government that this pension plan is different because it is a legislated plan rather than a traditional legal-trust type of arrangement. I am not a lawyer, but I know one thing - there is no trust, legal or otherwise, when it comes to this Liberal government. Money contributed to a pension plan ought to be treated as funds that are held in trust even when there is no formal legal-trust arrangement.

Honourable senators, there is not a shred of doubt that what this bill is all about is $30 billion. The government has borrowed against its own employees' trust, and now the government asserts that the $30 billion belongs to the taxpayers and that it should be government revenue. The government is totally ignoring the fact that this surplus was built up by employee contributions.

I am a taxpayer, honourable senators, just like you, and I for one do not want to be further taxed in a few years for a deficit in this fund; however, honourable senators, that is exactly what will happen. Furthermore, the much-maligned public servants will take it in the neck again because government will not explain that their grab of the pension fund is what caused the problem in the first place.

Surely, honourable senators, it is not unreasonable to demand that a significant portion of the $30 billion be left in the fund. As a taxpayer, I would welcome that because this is about trust.

As many honourable senators know, I have been closely monitoring the government's promises for several years now. It is not a job I sought, but I have become somewhat of an expert on this government's broken promises. Now I am beginning to predict them, a task that really is not so difficult.

Surely, honourable senators, if we are serious about our responsibility to the Canadian public, and if we believe that we are the chamber of serious second thought - I like the word "serious" better than "sober" - then you cannot but agree that there is a case to be made to strengthen this bill in any way we can. The minister is on record as saying that she will bring in amendments to this legislation almost as soon as it is passed. What an admission of incompetence: Pass the bill and then immediately try to fix the mess. It is the same story as with Bill C-32. Let us save Parliament and our courts and our public servants some costly time and money and do our job now.

We have been through all of this before. Many of the sins of Canada Pension Plan Investment Board are back with us again in the proposed Public Sector Pension Investment Board. When the Senate Banking Committee looked at the CPP board last year, it made a number of recommendations to strengthen the governance structure set out in the law. Unfortunately, the government chose to ignore that report when it drafted this bill, Bill C-78.

One of the Banking Committee's recommendations concerned the appointment of the auditor. As was the case with the CPP board, Bill C-78 gives the proposed Public Sector Pension Investment Board the power to hire its own auditor. Honourable senators, the first responsibility of any auditor is to protect the stakeholders. The auditor is not there to protect the board, and he or she should not feel any pressure to turn a blind eye to the board's attempts to engage in fancy bookkeeping. You cannot be 100 per cent independent if you live in fear that, if your message has bad news, you as the messenger will be shot.

It is for that reason that, in the private sector, the final decision to hire or fire an auditor rests with the shareholders. Private sector managers and boards may recommend that a particular auditor be hired or fired, but they cannot do this by themselves. I might add that, in the private sector, an auditor who objects to being fired has the right to set out in a letter to the incoming auditor the reasons he or she objects, and the incoming auditor is required by law to read that letter before taking up his or her new duties. This basic safeguard is there to ensure that shareholders' interests are protected when an auditor is let go after catching the scent of something rotten.

Honourable senators, most federal statutes either spell out in law that the Auditor General is the auditor or assign responsibility to the ministers for hiring the auditors. Boards simply cannot hire their own auditor.

(1040)

Our preference would be for the Auditor General to audit this fund, as it is done in Quebec with the Caisse de dépôt et placement du Québec.

The basic principle that you do not pick your own auditor even applies to the government itself. The Auditor General reports not to the Prime Minister, not to the Minister of Finance, not to the president of the Treasury Board and not to the Minister of Public Works; he reports to Parliament. He can issue reports telling Parliament that the books are cooked, as he has done for the past three years in a row, and not worry about being fired. He can tell Parliament that billions of dollars are being wasted, as he routinely does with his annual report, and not worry about being fired. He can tell Canadians that Health Canada's food safety program is not up to snuff and not worry about being fired.

The question surely is how the auditor of the proposed Public Sector Pension Investment Board will be able to report to Parliament, without fear of retribution from the board, that the board has engaged in fancy accounting practices. It is to be hoped that the board will hire a reputable auditor. Most are reputable, but there is always the danger that the fear of dismissal could influence the auditor on calls that could go either way. That is why the Auditor General should be the auditor of this $100 billion pension fund.

Honourable senators, I gave the Table a copy of my motion in advance of my speech so that they could translate the motion because I only have it in English.

Motion in Amendment

Hon. Marjory LeBreton; Therefore, honourable senators, I move:

That Bill C-78 be not now read the third time but that it be amended,

(a) on page 15, by adding after line 9 the following:

"27.1 The Auditor General of Canada shall be the primary auditor of the Public Sector Pension Investment Board.";

(b) in clause 28, on page 15, by replacing line 10 with the following:

"28. The audit committee shall be responsible for presenting all records of all financial activity of the Public Sector Pension Investment Board to the Auditor General on an annual basis. In addition, the audit committee shall"; and

"auditor's report to be prepared and presented to the Auditor General of Canada, in respect of."

[Translation]

The Hon. the Speaker: Honourable senators, it has been moved by the Honourable Senator LeBreton and seconded by the Honourable Senator Nolin:

That Bill C-78 be not now read the third time but that it be amended as follows -

[English]

Hon. Sharon Carstairs (Deputy Leader of the Government): Dispense!

The Hon. the Speaker: Honourable senators, in accordance with our understanding, we will now proceed to further speeches. I want to thank the Honourable Senator LeBreton for having provided us with the copy earlier so that we could have it translated.

[Translation]

Hon. Pierre Claude Nolin: Honourable senators, last week I spoke on the amendment moved by Senator Kelleher. This morning I rise on the main motion, the debate on third reading. I do not intend to repeat everything I said last week.

Last Friday, I asked my colleagues from the government three things. I shall repeat them. I have not yet had any responses to those three questions. First, why is the government, which strives to protect retirees and workers from the private sector, suddenly changing its policy when it comes to the public funds that it is administering without complying with its own legislation? This seems to me to be a worthwhile question. I could stick to just that one until I get the answer, which is still forthcoming. I trust I shall get it before the end of the debate. Second, should the government not recognize that the two decisions mentioned above ought to apply to Bill C-78, even though the context is not the same? Third, does the government not have any hesitation about infringing on its employees' right to retirement? We are still awaiting the answers to these questions, as I have already said.

Honourable senators, who think they have answered my questions, will recall my saying last Friday that the Quebec courts have recognized that the establishment of a pension fund creates a contractual relationship. One of the judges even wrote that a contract existed since the two parties concerned by such a plan may, on the one hand, claim certain rights, while on the other hand they are bound by certain obligations. That is the essence of our little debate.

What we have here is not contract law but a legislative regime. Regardless of which it is, there is a contract between the parties. In the second decision I mentioned last week, Mr. Justice Fréchette ruled that there was a contract - and that it was legislative in nature, solely on the basis that the parties sought or reached agreement - since both parties concerned by such a plan may, on the one hand, claim certain rights, while on the other hand they are bound by certain obligations. Even under a purely contractual regime, there are rights and obligations.

If the provisions of this agreement are silent with respect to the allocation of the surplus - it is a simple matter when provision is made - the rules apply. The courts have told us that the parties must use these rules to reach agreement on allocation of surpluses. If there are no such stipulations in the agreement, you must renegotiate. It does not strike me as all that complicated. No one may unilaterally lay claim to the surplus, not even the federal government.

I heard Senator Christensen make the following argument: When a government employee leaves after working the required number of years, I think it is six, he may withdraw his contributions, but only his, not the employer's. Do you know why? Because it is so provided in the plan. The parties have agreed on this. No other course of action is possible.

In the case of the $30-billion surplus, the bill will make provision for how this amount is to be distributed. This is where I have a problem and where I do not agree with your bill. You are going to appropriate something that does not belong to you. There is another word to describe this state of affairs that I may not use in this place, but it is exactly what you are going to do. You do not have the right to do this. The surplus belongs to the plan and the plan was created for the benefit of retired contributors, not the government.

[English]

(1050)

Hon. J. Michael Forrestall: Honourable senators, like my colleague from Ottawa, I also come from an area heavily populated with public servants, particularly of a military nature.

It would be other than responsible on my part not to participate to some degree in this debate. I have followed the debate closely, and I share the concerns of public servants in the Halifax area. They believe that something wrong is happening. They believe that their future is being endangered. As they see it, if the government can do this, it can do pretty much what it wants to with the fund.

I wish to associate myself with the remarks of Senator LeBreton and with others who will speak and who will move thoughtful amendments in the hopes that this bill might be put aside and revisited.

The primary purposes of this bill ought to be dealt with at greater depth. That opportunity has been denied the Senate. The uncertainty of events leaves me with only one certainty and that is that I probably will not be here to vote. Were I able to be here, honourable senators, I would vote for each and every amendment put forward by this side of the chamber.

Hon. Michael A. Meighen: Honourable senators, I rise to join the Honourable Senators Tkachuk, Stratton, Kelleher, Nolin, LeBreton, and Andreychuk, and I am sure many other honourable senators who would voice similar sentiments to those that we have heard this morning.

Their concerns were well and comprehensively articulated and bear careful consideration by members on both sides of this house. Certainly, they convinced me and I would only wish that the government would listen a little more sensitively and in a more understanding fashion to these legitimate concerns.

For my part, I wish this morning to touch on a few issues of governance. However, before doing so, I should say a few words on how this government has conducted itself with respect to Bill C-78.

Frankly, honourable senators, we have here the latest example of spin doctoring. The spin doctoring that is going on with respect to this bill is the spin that the pension surplus is a game of taxpayers trumping civil servants. I do not think that is what it is in any of our minds.

If Canadians had a choice, they would put a different spin on this bill. Their spin would be, I feel sure, that they want to deal with the surplus on the basis of fairness for all, not on the basis of one-upmanship.

Canadians would wish to ensure that the surplus is shared, perhaps not evenly, but shared nonetheless. They would not side with government greed, or greed on any side.

I say this because if we look at pension plans in the public sector, such as that of CMHC, or in the private sector, such as Dofasco, we see employers sharing in the pension surpluses with their employees, even when not obliged to do so. Here, on the other hand, honourable senators, we see a government that has one regime for the private sector under the PBSA, and another rule for itself. A simple case of what is good for the goose is not good for the gander.

Consequently, honourable senators, it will be the courts that will decide whether the government is entitled in law to the surplus. Whatever the outcome of this course of action that the government insists on pursuing, it will cause untold and unnecessary damage to employee morale and to the constant fragile state of employer-employee relations.

Honourable senators, Bill C-78 is not about entitlement to the surplus because, as pointed out by my colleague Senator Nolin, the government is aware that Bill C-78 does not create any legal entitlement to the surplus but is, rather, premised on the belief of entitlement.

One can only question the motives of this government regarding Bill C-78, given the apparently certain prospect of lengthy and expensive litigation. Such litigation, honourable senators, will surely result in nothing more and nothing less than a lose-lose situation for everyone. The government will lose, public servants will lose, the Canadian taxpayers will lose; the only winners, God bless them, will be the lawyers.

In testimony before the Senate Banking Committee, Minister Massé said that lawyers would be dealing with this proposed legislation for the next 10 years. I think the minister was being optimistic.

Why are we having the spin doctoring? Why are we having this shell game? This government shies away from the difficult decisions on reducing government spending that were begun by the Mulroney government when government operations were brought into the black for the first time in decades. This government chooses to sidestep such decisions and manipulate perceptions by moving the shells on the table: $26 billion from the Employment Insurance fund, $20 billion from transfers to the provinces, and now $30 billion from the public sector pension plan. This government continually forgets that there is only one taxpayer, one taxpayer who pays both federally and provincially. It is that taxpayer from whom the money is being taken away.

To more fully explain the effectiveness of the government manipulating perceptions regarding Bill C-78, we need look no further than the decision not to consult prior to the introduction of the bill and to directly and indirectly limit parliamentary debate. When taken all together, the Liberal Party has moved decisively in ensuring that this bill is dealt with quickly. That is rule number one of effective spin doctoring.

In June, when I asked in committee whether the government had consulted anyone on the structure and powers of the Public Sector Pension Investment Board, the answer I received was "no." Treasury Board officials admitted that they did not ask anyone outside of the government whether or not the accountability framework in this bill was appropriate. No outside pension experts were asked for their opinion. In light of what we have heard this morning, I think we all know what their opinion would have been.

What this bill contains, honourable senators, is the board governance structure of the Canada Pension Plan Investment Board Act. Honourable senators will recall that our Banking Committee raised numerous concerns in our final report, concerns relating to transparency and accountability, the term and qualifications of directors, the auditing function, conflicts of interest, the investment fund, and the foreign property rule.

While the work of the committee and later of this chamber was important enough for the government to agree to delay the coming into force of the governance and investment provisions of that bill, the Finance Minister stated that provincial agreement would need to take place prior to the committee's recommendations being incorporated. It is my understanding that the federal-provincial negotiations on the CPP will wind up this fall. I am sure all honourable senators will join me in wishing for the approval of recommendations made by our Banking Committee.

There is a between-negotiations phase that is taking place and that should be taking place. That is the difference with the bill that is before us today.

I know honourable colleagues on all sides are wondering why the Prime Minister, the Minister of Finance, the Treasury Board president, and other cabinet members, including the Leader of the Government in the Senate, who is known to be a supporter of this chamber and our committee and its work, would permit the same flawed governance structure of the Canada Pension Plan Investment Board Act to be inserted holus-bolus in Bill C-78. One would think that the 11th-hour agreement to address the concerns of this place regarding the CPP board would have been taken seriously in the drafting of Bill C-78.

Alas, such was not the case; today, the Senate is debating Bill C-78 at third reading. The bill establishes the proposed Public Sector Pension Investment Board using, as I said before, the same flawed investment board model found in Bill C-2.

In addition, I cannot help but wonder if any thought was given to whether the governance structure of the Canada Pension Plan makes sense for an employee pension plan, even when improved by adopting the suggestions of the Senate Banking Committee. It is quite a different kettle of fish but the same governance structure.

Consequently, honourable senators, the bill before us does not set out a system that constitutes best practices for establishing an investment board. It should not be brought into law.

Consensus exists on the matter of a joint board to manage the plan but Bill C-78 does not establish a joint board. Rather the President of the Treasury Board merely gives us an undertaking to continue trying to come to some kind of agreement with the unions on a joint board. However, it appears that this undertaking was predicated on the prior willingness of the unions to entirely forgo their rights to any part of the existing surplus - an agreement which I believe the minister knew all along was simply not on.

Without a joint management board, issues of accountability, investment rules, access to information, the skills of board members, the relationship of the board to the actuary, and so forth, are just that much more serious and troubling.

Bill C-78 does not permit plan members the right to seek information under the Access to Information Act. The annual report will not provide the kind of information one needs to ensure the discretionary powers are being exercised in an appropriate manner.

Bill C-78 does permit the board to hire and fire its own auditor. This was a serious concern of the committee. Senator LeBreton touched on this earlier today. We were concerned about this with respect to the CPP Investment Board. All honourable senators should be concerned with the lack of best governance practices regarding an auditor, remembering the board of this public sector plan will be responsible for investing more than $100 billion of employee and employers' funds.

Ideally, the best auditor for this pension plan would be the Auditor General as found in Quebec in the case of the Caisse de dépôt et de placement. Failing this, the auditor should be named by the minister as recommended in our study of the Canada Pension Plan Investment Board.

The qualification of board directors is another area of concern. This bill establishes a board nomination process in which the final selection of the board is made by the minister. Again, I question if any thought was given as to whether the governance structure of the Canada Pension Plan makes sense for an employee pension plan.

To close, honourable senators, I focus for a moment on one of most important players in the management of any pension plan - the actuary. Bill C-78 incorporates, dare I say blindly, the same model as found in the Canada Pension Plan Board. In fact it gives this plan the same actuary as that of the CPP board. I am sure all colleagues were astonished to learn that the bill fails to provide for an independent actuary free from political pressure. It fails to establish any direct relationship between the setting of premiums and the actuary's report. Accordingly, the minister may decide premium levels, leading many, including public sector unions, to be concerned about the possibility of artificial surpluses in the future.

Honourable senators, the role of the actuary in advising the plan's board on its investment horizon should be of deep concern. If we read carefully the board's terms of reference, we will not find any requirement for the board to dialogue with the chief actuary. I question how the board will be able to understand the nature and duration of its liabilities so that the investments of the plans can be made in a responsible and prudent manner.

Bill C-78 certainly does not contain any of the best governance practices that are currently in use in the private sector. In my view, honourable senators, there is no alternative but to defeat this bill since most of the problems and deficiencies of plans are sins of omission rather than sins of commission. Bill C-78 commits many sins of omission by failing to implement good governance practices.

So, honourable senators, we must prepare ourselves for what promises to be the inevitable result - inadequate professional work, inappropriate investments, conflicts of interest, excessive or inappropriate plan expenses and lack of understanding of fiduciary responsibilities and what one should expect as a member of the board from the board's professional advisors.

Bill C-78 should address at the very least good corporate governance, the proper delineation, organization and oversight of the roles and responsibilities of those persons having fiduciary obligation to the plan or to its members. Since it utterly fails to do so and given its serious shortcomings in other areas, as described by a number of colleagues this morning, I urge all honourable senators to defeat this bill. Failure to do so will have serious long-term consequences not only for public service employees but also for all-Canadian taxpayers. These unfortunate consequences can be avoided. I urge the government to rethink its position and do just that.

[Translation]

Hon. Gérald-A. Beaudoin: Honourable senators, now that the debate on Bill C-78 is entering its final phase, I should like to make a few brief comments on one particular issue.

At one point, the Honourable Michael Kirby, the chairman of the Banking, Trade and Commerce Committee, addressed the roles of the Senate and the courts of law when a bill is before Parliament. The Leader of the Opposition, Senator John Lynch-Staunton, took part in the debate, and the ensuing exchange of views was most interesting.

Without a doubt, a controversial bill can be challenged before the courts. This is a very frequent occurrence. This must not, however, ever prevent us from having a thorough debate in the Senate or in our committees, or from reaching our own conclusions.

Of course, once a bill is passed and goes before the courts, we bow to the judgment of the Supreme Court. That is our system, one that is much to my liking. The Court does its job well.

But how many times has the Supreme Court said that the lawmakers must also do their own job? The legislative branch, that is the Senate and the House of Commons, must do its job and must never hesitate to play its full role. I am not the only one saying this. In a recent judgment, Beaulac, the Supreme Court found that Parliament has an important role to play in linguistic matters, since these are rights of an institutional nature.

How many times have I heard it said that the courts are too powerful? I do not share that opinion. In doing our job we are establishing a healthy balance of power between the judiciary and the legislative.

We must never abandon part of our legislative role on the grounds that the court will settle the issue. We must do our job and let the court do its job in due course.

All aspects, including the legal and the constitutional, absolutely must be addressed here in this forum of all Canadians.

It is not my intention to exhaust the topic of the relationship between Parliament and the court. That could take up hours of debate and we will have ample opportunity to do so when the Senate resumes again, but at least I wanted to raise the point that, if the court does its job, that does not release us from the obligation to do ours.

[English]

(1110)

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I have a few remarks to make on this bill, particularly in reference to the procedure through which we have had to suffer, and also a few comments on how the Senate has been treated.

Quite frankly, I am aware that I will not change anyone's mind about supporting the bill, but I will use some fairly harsh language and simply say that this has not been the Senate's finest week. As Senator Buchanan said yesterday on Bill C-32, we are knowingly being asked to pass bad legislation.

In the case of Bill C-32 and now in the case of Bill C-78, one only need read the reports of the committees on each bill to find in them, one perhaps more direct than the other, anxiety about some of the clauses in the bill. Yet, both committees say that despite our reservations, despite our concerns, in effect despite our knowledge of the major flaws in both bills, we should pass them anyway. Why? Simply to meet a self-imposed partisan deadline called prorogation.

Prorogation is simply a ceremonial ending of one session preceding a new one. There is no need for prorogation. There is no requirement in the statutes, even less in the Constitution, for a prorogation. The Prime Minister hopes to, in the Speech from the Throne, set out a new course for the Parliament and the country in the next century - the next millennium. These are the buzzwords. He is asking the Senate of Canada to be a party to his political schedule, regardless of the weaknesses of the two bills still before us.

In the case of Bill C-32, the new Minister of the Environment was no sooner in office than he said in a radio interview, "This bill must go through; we have discussed it long enough." That was even before the Senate entertained it. So much for the respect that one minister showed for this house.

By forcing closure, the government is sanctioning the abdication of our responsibilities as senators to assess responsibly and scrutinize closely major legislation, all in order to meet a self-serving deadline which has no reason for being except to serve the government party's interests.

To acquiesce to this process by supporting this bill today is simply to convert us into a mirror image of the other place. There, the majority has become a lifeless entity whose role is to blindly obey instructions emanating from the Langevin Block. It is as simple as that. I am sure those across the way hear in their caucus constant complaints about the diminished role of the elected representatives on the government side. It is a fact, and it is not new. It has been going on for at least two decades. The trouble is that it is getting worse. I sense that we are now being, as senators, drawn into that category of, "Follow orders, do not discuss, and just do what you are told."

The other day, Senator Stewart made some very interesting comments comparing our parliamentary system with the congressional federal system in the United States. He came down on the side of the parliamentary system. For my part, I find that in the congressional system, the federal system in the United States, there are tremendous advantages which favour the elected representative. True, party lines there are blurred and obscured. The names may mean one thing, and those who support one party or the other more often resemble each other than not, but at least the elected representative in Congress has a say in the tailoring of laws, in the development of laws, in the passing of laws, and in rejecting the executive's proposals. Here in the Canadian parliamentary system, we are becoming, willingly or not - at least the House of Commons has, and perhaps the Senate - more and more subservient to the dictates of the Prime Minister's Office and the unelected people around him. Even ministers are subservient to that system. We have heard these arguments before.

It is up to the House of Commons to re-establish its authority, but it is up to the senators to ensure that their authority is not whittled away. Through the imposition of closure on these two important bills, only to meet a deadline decreed by the political authority, we are conniving in the new system of having everything directed from central headquarters.

Bill C-32 is in the past.

In Bill C-78, the main issue is that of the ownership of the so-called $30-billion surplus. The government has told us that the actual ownership, while claimed by it, has yet to be settled and can only be settled by the courts, although in the bill the disposal of the surplus is based on the premise that the government owns it completely. There is nothing in the bill which allows for a joint ownership, whatever the division. There is nothing in the bill which says that should the unions be allowed a certain percentage and the government the balance, then the allocation will be based on a different formula. The whole surplus is assumed to be the property of the Government of Canada.

The government says, "If there is a contestation to that claim, you can go to the courts." The government from the beginning said, "We will not discuss the ownership of the surplus. Unions, if you want to talk about the joint management board and other issues arising from this bill, keep the surplus off the agenda or we will not discuss any items with you."

For that reason, the Senate agreed in June to refer the bill back to the committee and asked it to report no later than September 7. That was to allow the unions and the Treasury Board to sit down and discuss outstanding issues, particularly that of the joint management board. I understand that the unions were becoming less insistent on having the surplus as part of the agenda, or at least that is what one hears, but I have yet to have that confirmed. In any event, no meetings were held despite the fact that a branch of the Parliament of Canada urged the Treasury Board to do so.

Our recommendations were completely ignored. It is not just that the Opposition feels frustrated, but the entire Senate should feel the same way. It was a strong recommendation of the Senate - not an instruction, because we cannot instruct - an urging to the Treasury Board to sit down with the unions and discuss outstanding issues. The government refused, so we are no further ahead today than we were in June.

As Senator Beaudoin said, in a way, we are going through the same frustrating debate we had during the Pearson debate. At that time, there was a serious concern about the constitutionality of certain clauses of that bill. Honourable senators will recall that the entire executive of the Canadian Bar Association unanimously found certain clauses of that bill, in their mind, unconstitutional. Our recommendation to the government was, "Why not refer it to the Supreme Court, have them decide, and then take it from there?" The same thing, as Senator Nolin has outlined, should have been done in this case. Make a reference. Get a mediator. If the two sides cannot agree, get a third party. However, all that should have been done before passage of this bill because by passing the bill without one of the key elements in it being resolved, we are abdicating our legislative responsibilities and telling the courts, "You resolve the outstanding issues for us."

(1120)

How many times have parliamentarians complained that the courts encroached on Parliament? How many times have parliamentarians complained that the interpretation given certain legislation, no matter the court, goes against the will of Parliament? Why should we encourage the courts to do our work by having the government say: "Well, you know, we cannot be bothered talking to the other party regarding the surplus. We have a deadline. We want to get out of here. Tell the house not to come back on Monday. Therefore, that must be done by Friday. We are imposing closure. Hold your nose, pass the bill, and then if the unions want this issue resolved let them go to the courts."

That is not the way to treat this proposed legislation. All efforts must be made, as much as possible, to avoid court challenges; in this case, we are encouraging them. By doing so, we are abdicating our responsibilities as legislators. I would ask honourable senators across and all those who are called on to support this bill to keep in mind that, by supporting the bill, as much as it has many positive features, you are in effect supporting the thesis that the courts should more and more have a say in the legislative process.

I will not talk more on the bill itself. I will, however, point out that by supporting this bill we are going far beyond altering the pension scheme for our public servants, for the RCMP, for the Armed Forces, and for the post office. We are sanctioning the whittling of our authority. We are conniving with the Prime Minister's Office in supporting an agenda that has been set out simply to suit the government. We are dismissing concerns expressed over these two bills. Even Senator Taylor had the effrontery, in his comments on Bill C-32, to insult certain witnesses by saying that they were exaggerating the negative features of the bill simply to position themselves to raise more money for their efforts.

Senator Taylor: It is true.

Senator Lynch-Staunton: With that kind of argumentation, how can we have a positive, intelligent debate based on the concept that this is a chamber of sober, second thought? Read the report on Bill C-32. Read the report on Bill C-78, where there are phrases like "the committee is deeply disturbed." In another paragraph, the committee is "outraged." Disturbed, outraged, concerned, bad bill, full of flaws, outstanding issues not resolved: "Pass it anyway. The Prime Minister wants to prorogue. He wants a Speech from the Throne. Clean the slate, start over again, and we will fix it after."

Bill C-32 contains a clause that provides for a review in its fifth year, like its predecessor, Bill C-88. The committee said that, in effect, this bill is so bad that as soon as it is passed let us start reviewing the legislation right away. That is the kind of legislation we passed yesterday, knowing that it was so bad, so flawed, so weakened by the lobbying efforts of vested interests that the committee unanimously agreed that no sooner is there Royal Assent let us sit down and start reviewing the bill. That is the kind of legislation we passed yesterday, and that is, to a certain extent, the kind of legislation we will pass today, simply to serve the interests of the governing party.

As I said, I believe that nothing I say will change the vote on the other side; however, I hope it will cause them to reflect and perhaps when we face this situation again we will not take the ultimate step as we are asked to be do so shamelessly today.

The Hon. the Speaker: If no other honourable senator wishes to speak, we will then proceed to the motions.

It was moved by the Honourable Senator Kirby, seconded by the Honourable Senator Sibbeston, that the bill be read a third time now. It was then moved in amendment by the Honourable Senator Andreychuk, seconded by the Honourable Senator LeBreton, that the bill be amended, and you all have copies of the amendment.

Shall I dispense with the reading of the motion in amendment?

Hon. Senators: Dispense.

The Hon. the Speaker: It was then further moved in amendment by the Honourable Senator Andreychuk, seconded by the Honourable Senator LeBreton, a second amendment, which you have in your hands.

Shall I dispense with the reading of the motion in amendment?

Senator Carstairs: Dispense.

The Hon. the Speaker: A third amendment was then moved by the Honourable Senator LeBreton, seconded by the Honourable Senator Nolin, and again you have that motion in your hands.

Shall I dispense with the reading of the motion in amendment?

Senator Carstairs: Dispense.

The Hon. the Speaker: The immediate question before us then is the third motion in amendment, which was moved by Honourable Senator LeBreton, seconded by the Honourable Senator Nolin.

Will those in favour of the amendment please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those opposed to the amendment please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "nays" have it.

And two honourable senators having risen.

The Hon. the Speaker: Call in the senators.

Is there an agreement concerning the bells?

Is there leave for a 30-minute bell?

Hon. Senators: Agreed.

The Hon. the Speaker: The vote, therefore, will take place at 11:55 a.m.

(1150)

The Hon. the Speaker: Honourable senators, the question before the Senate is the motion for third reading of Bill C-78, and the immediate question is the motion in amendment proposed by the Honourable Senator LeBreton, seconded by the Honourable Senator Nolin, that Bill C-78 be not now read a third time, but that it be amended -

Shall I dispense?

Hon. Senators: Dispense.

Motion in amendment by Senator LeBreton negatived on the following division:

YEAS

THE HONOURABLE SENATORS

Andreychuk
Atkins
Beaudoin
Berntson
Buchanan
Cochrane
Comeau
Doody
Grimard
Kelly
Keon
Kinsella
LeBreton
Lynch-Staunton
Meighen
Murray
Nolin
Prud'homme
Robertson
Roche
Rossiter
Simard
Tkachuk
Wilson-24

NAYS

THE HONOURABLE SENATORS

Austin
Bryden
Callbeck
Carstairs
Chalifoux
Christensen
Cook
Cools
Corbin
De Bané
Fairbairn
Ferretti Barth
Finestone
Finnerty
Fitzpatrick
Fraser
Furey
Gauthier
Gill
Graham
Hervieux-Payette
Joyal
Kenny
Kolber
Kroft
Lewis
Losier-Cool
Maheu
Mahovlich
Mercier
Milne
Moore
Pearson
Pépin
Perrault
Perry Poirier
Poulin
Poy
Robichaud
(L'Acadie-Acadia )
Robichaud
(Saint-Louis-de-Kent)
Rompkey
Ruck
Sibbeston
Sparrow
Stewart
Taylor
Watt-47

ABSTENTIONS

THE HONOURABLE SENATORS

Nil.

The Hon. the Speaker: Honourable senators, the next question before the Senate is the following:

[Translation]

It has been moved by the Honourable Senator Andreychuk, seconded by the Honourable Senator LeBreton:

That Bill C-78 be not now read the third time but that it be amended.

(a) on page 28.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the motion please say "yea"?

Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "nays" have it.

[English]

And two honourable senators having risen.

The Hon. the Speaker: Call in the senators.

Is there an agreement on the bell, honourable senators? Is there leave for a five-minute bell?

Hon. Senators: Agreed.

The Hon. the Speaker: Honourable senators, the vote will take place at five minutes to twelve o'clock.

(1200)

The Hon. the Speaker: The question before the Senate is the first motion in amendment by the Honourable Senator Andreychuk, seconded by the Honourable Senator LeBreton, that Bill C-78 be not now read a third time, but that it be amended on page 28 -

Shall I dispense?

Hon. Senators: Dispense.

Motion No. 1 in amendment by Senator Andreychuk negatived on the following division:

YEAS

THE HONOURABLE SENATORS

NAYS

THE HONOURABLE SENATORS

Adams
Austin
Bryden
Callbeck
Carstairs
Chalifoux
Christensen
Cook
Cools
Corbin
De Bané
Fairbairn
Ferretti Barth
Finestone
Finnerty
Fitzpatrick
Fraser
Furey
Gauthier
Gill
Graham
Hervieux-Payette
Joyal
Kenny
Kolber
Kroft
Lewis
Losier-Cool
Maheu
Mahovlich
Mercier
Milne
Moore
Pearson
Pépin
Perrault
Perry Poirier
Poulin
Poy
Robichaud
(L'Acadie-Acadia)
Robichaud
(Saint-Louis-de-Kent )
Rompkey
Ruck
Sibbeston
Sparrow
Stewart
Taylor
Watt-48

ABSTENTIONS

THE HONOURABLE SENATORS

Nil.

The Hon. the Speaker: The question before the Senate now is the second motion in amendment. It was moved by the Honourable Senator Andreychuk, seconded by the Honourable Senator LeBreton, that Bill C-78 be not now read a third time, but that it be amended on page 28 -

Shall I dispense?

Hon. Senators: Dispense.

The Hon. the Speaker: Will those honourable senators in favour of the motion in amendment please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion in amendment please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "nays" have it.

And two honourable senators having risen.

The Hon. the Speaker: Call in the senators. I believe there is agreement for a five-minute bell. The vote will take place at 12:15 p.m.

(1215)

Motion No. 2 in amendment by Senator Andreychuk negatived on the following division.

YEAS

THE HONOURABLE SENATORS

NAYS

THE HONOURABLE SENATORS

Adams
Austin
Bryden
Callbeck
Carstairs
Chalifoux
Christensen
Cook
Cools
Corbin
De Bané
Fairbairn
Ferretti Barth
Finestone
Finnerty
Fitzpatrick
Fraser
Furey
Gauthier
Gill
Graham
Hervieux-Payette
Joyal
Kenny
Kolber
Kroft
Lewis
Losier-Cool
Maheu
Mahovlich
Mercier
Milne
Moore
Pearson
Pépin
Perrault
Perry Poirier
Poulin
Poy
Robichaud
(L'Acadie-Acadia )
Robichaud
(Saint-Louis-de-Kent)
Rompkey
Ruck
Sibbeston
Sparrow
Stewart
Taylor
Watt-48

ABSTENTIONS

THE HONOURABLE SENATORS

Nil

The Hon. the Speaker: The question now before the Senate is the motion by the Honourable Senator Kirby, seconded by the Honourable Senator Sibbeston, that Bill C-78 be now read the third time.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "yeas" have it.

And two honourable senators having risen.

The Hon. the Speaker: Call in the senators.

(1220)

Motion agreed to and bill read third time and passed on the following division:

YEAS

THE HONOURABLE SENATORS

Adams
Austin
Bryden
Callbeck
Carstairs
Chalifoux
Christensen
Cook
Cools
Corbin
De Bané
Fairbairn
Ferretti Barth
Finestone
Finnerty
Fitzpatrick
Fraser
Furey
Gauthier
Gill
Graham
Hervieux-Payette
Joyal
Kenny
Kolber
Kroft
Lewis
Losier-Cool
Maheu
Mahovlich
Mercier
Milne
Moore
Pearson
Pépin
Perrault
Perry Poirier
Poulin
Robichaud
(L'Acadie-Acadia)
Robichaud
(Saint-Louis-de-Kent )
Rompkey
Ruck
Sibbeston
Sparrow
Stewart
Taylor
Watt-47

NAYS

THE HONOURABLE SENATORS

Andreychuk
Atkins
Beaudoin
Berntson
Buchanan
Cochrane
Comeau
Doody
Grimard
Kelly
Kinsella
LeBreton
Lynch-Staunton
Meighen
Murray
Nolin
Prud'homme
Robertson
Roche
Rossiter
Simard
Tkachuk
Wilson-23

ABSTENTIONS

THE HONOURABLE SENATORS

Nil.

[Translation]

Royal Assent

Notice

The Hon. the Speaker informed the Senate that the following communication had been received:

RIDEAU HALL

September 14, 1999

Sir,

I have the honour to inform you that the Honourable John Major, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy Governor General, will proceed to the Senate Chamber today, the 14th day of September, 1999, at 2:00 p.m., for the purpose of giving Royal Assent to certain bills.

Yours sincerely,

Judith A. LaRocque
Secretary to the Governor General

The Honourable
The Speaker of the Senate
Ottawa

[English]

(1230)

Transport and Communicationss

Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada Referred to Standing Committee

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, I move:

That pursuant to subsection 47(5) of Canada Transportation Act, the order authorizing certain major air carriers and persons to negotiate and enter into any conditional agreement, be referred to the Standing Senate Committee on Transport and Communications.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, we welcome this motion; however, in recognition of the expectation of prorogation, we might want to make a contingency plan.

[Translation]

Motion in Amendment

Hon. Noël A. Kinsella (Deputy Leader of the Opposition) : Honourable senators, there is a likelihood that the Prime Minister will exercise his prerogative to prorogue Parliament. Under these circumstances, I wish to move an amendment to this motion. I move, seconded by the Honourable Senator Simard:

That in the event of a prorogation of Parliament, the Standing Senate Committee on Internal Economy be ordered to establish a Task Force on Transport and Communications, consisting of the members of the present Standing Senate Committee on Transport and Communications; and that this Order Authorizing Certain Major Air Carriers and Persons to Negotiate and Enter into Any Conditional Agreement be referred to the Task Force for study and report;

That the Task Force be authorized to establish television and radio broadcasting of its proceedings as it deems appropriate; and

That the Standing Senate Committee on Internal Economy, Budgets and Administration be ordered to provide the Task Force an appropriate budget to allow it to carry out its work.

Honourable senators, I move this motion in both official languages, seconded by the Honourable Senator Simard.

[English]

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion in amendment of Senator Kinsella?

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, we on this side must oppose this motion in amendment. This is an unprecedented motion being introduced under rules to which, quite frankly, Beauchesne would take great exception.

The sixth edition of Beauchesne, citation 235(1) states:

The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again. Not only are the sittings of Parliament at an end, but all proceedings pending at the time are quashed.

Furthermore, honourable senators, the Parliament Act of Canada specifically provides for the Standing Committee on Internal Economy of the Senate to continue to exist during a prorogation. It is for that reason, I am sure, that the motion allows for the Internal Economy Committee to establish such a task force. However, no provisions are made in the Parliament of Canada Act for any other committee.

Section 19.1 of the Parliament Canada of Act states:

(1) In this section and sections 19.2 to 19.9, "Committee" means the Standing Senate Committee on Internal Economy, Budgets and Administration established by the Senate Rules under its rules...

(2) During a period of prorogation or dissolution of Parliament and until the members of a successor Committee are appointed by the Senate, the Committee continues to exist for the purposes of this Act -

- and we are referring specifically to the Internal Economy Committee -

- and, subject to subsection (3), every member of the Committee, while still a senator, remains a member of the Committee as if there had been no prorogation or dissolution.

The very fact, however, that the Parliament of Canada Act makes reference to one committee and one committee only means that the intent of the act clearly is that no other committees should exist. Therefore, the Transportation Committee ceases to exist, as do all orders of reference before it. That includes the particular reference and intent of the original motion. There is no chair, there is no deputy chair, and there is no membership. There can be no meetings of the committee. There is no protection for witnesses.

In my view, the Senate is not competent to change the Parliament of Canada Act unilaterally. The only way to deal with committees sitting during a period of prorogation in the future would be to effect a clear change to our rules and, indeed, a change to the Parliament of Canada Act. We cannot do that at this time.

Senator Kinsella: Honourable senators, the Deputy Leader of the Government is partially right in that the Standing Committee on Internal Economy, Budgets and Administration continues notwithstanding prorogation. The amendment, therefore, was drafted in that light. This motion would be an instruction to the Internal Economy Committee, which is legally constituted to sit during prorogation. If prorogation occurs, then the order of this house, by virtue of this amendment, tells the Internal Economy Committee not to set up a committee but to establish a task force.

There is ample precedent for this. We followed this procedure for the study on corporate governance and for other task forces. I just took a quick glance at some of the past proceedings. In 1996, on December 5, authorization was given by the Internal Economy Committee to issue new contracts so those task forces could be retained. Indeed, it said that within five working days of prorogation or dissolution, the committee would review the mandate of each committee. Committees have been set up. Task forces have been set up. In particular, one task force looked at corporate governance.

I agree with the interpretation of the rules as given by the Deputy Leader of the Government that, with prorogation, the standing committees, save and except the Internal Economy Committee, would be functus. However, this instruction would be for the Internal Economy committee to set up a task force.

(1240)

The order issued by the government pursuant to Section 47 of the Canada Transportation Act is a matter of national importance where there is a very explicit statutory provision. Obviously the intent of both Houses of Parliament, when we adopted that act, was that this extraordinary power given to the cabinet be well circumscribed by Section 47 of the Canada Transportation Act. It said yes, the government can issue this order, but that order, within seven sitting days, must be tabled in not one but both Houses of Parliament. It is further circumscribed by the statute in that Parliament then said that that order must then be sent to the appropriate committee of each house.

It seems to me, honourable senators, that the intent of Parliament was very clear. It is in the statute. We have agreement that, yes, the order ought to be sent to the Standing Senate Committee on Transport and Communications. We heard from the chair of that committee the other day that, yes, she would be happy to have her committee work on that. We on this side are anxious to see the committee work on it.

However, there has been much discussion recently about two major pieces of legislation and all the flaws contained therein, as pointed out by this side, both being rushed through because of the suggestion that the Prime Minister was about to exercise his prerogative to prorogue Parliament. We do not want to have the work of Parliament impeded in examining this order. We foresee that examination occurring in the same way as in the past - namely, to authorize and instruct in this instance the Internal Economy Committee to set up a task force which would be composed of the same members as the Standing Senate Committee on Transport and Communications. Should there be no prorogation, then Senator Poulin's committee can get about the work of examining this order right away.

Hon. Marcel Prud'homme: Honourable senators, in order for some of us, and me especially, to understand, I would make a distinction between dissolution and prorogation.

I am of the strong view that, in the case of a dissolution, what Senator Carstairs said is obvious for partisan and political reasons. I cannot see the Senate sitting if Parliament has been dissolved. That is very clear.

In a situation of prorogation, Parliament can be recalled for emergency reasons, while Parliament cannot be recalled during dissolution.

Therefore, I wish to draw to honourable senators' attention, and to the attention of the government, that if it is because of the rules, then someone should take the initiative - I suggest that perhaps it should be Senator Kinsella and some others on the government side and in this corner - of describing what kind of power the Senate has in the case of prorogation. We do not disappear. As a matter of fact, even during elections, we do not disappear. We continue, except we do not have legislation.

I would put to the Senate that it would be appropriate to follow the advice of Senator Kinsella and that we go through the Standing Committee on Internal Economy, Budgets and Administration, and let the future unfold accordingly. I go even further than Senator Kinsella by pointing out to the Senate that there is a big difference between dissolution and prorogation. If there is some difficulty in this case, it would be up to the committee chaired ably by Senator Maheu to change the rules, as we will do on the question of His Honour's earlier statement concerning the precedent created by Senator Grafstein. I assure you that in the future we shall look into that in the Rules Committee.

Therefore, I say that we should add to the reform of the Senate the question as to what can be done by the Senate during a prorogation, knowing that nothing can be done during a dissolution.

Hon. John B. Stewart: Honourable senators, I am especially interested in this proposal because of the problems that a prorogation would raise for the Foreign Affairs Committee. However, I must say that it seems to me that there is no question but that a prorogation has the effect of terminating the session of Parliament for both houses, that is the Senate as well as the House of Commons; that all our standing and special committees cease to exist save and except the Standing Committee on Internal Economy, Budgets and Administration; and also that all the mandates given to the several standing and special committees are discharged.

As I understand it, the Standing Committee on Internal Economy, Budgets and Administration has been given a statutory basis for continuing so that it can carry out business work - the ordinary sense of the word "business" - relative to the Senate but not to engage in what one would call substantive work such as establishing a task force.

I wonder if those who are proposing the motion and supporting it have thought of the constitutional implications of the Internal Economy Committee replacing the Senate itself during a period of a prorogation.

There is then the question of to whom this task force is to report. It reports to its master, I suppose, namely the Standing Committee on Internal Economy, Budgets and Administration. Does not that show how extraordinary, how irregular, this motion is?

The situation is clear: If there is a prorogation, the committees are discharged, their mandates are discharged, and the Internal Economy's authorization is strictly limited to internal economy matters rather than to matters of substantive business.

Hon. Nicholas W. Taylor: Honourable senators, the difference we seem to be discussing here is between an adjournment and a recess. Recess applies when Parliament is prorogued. An adjournment can be called by each house separately. The House of Commons can adjourn, the Senate can adjourn.

As my colleague Senator Prud'homme said earlier, we must remember that senators are members of Parliament.

As for prorogation, Beauchesne states clearly in citation 235:

The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again.

Certainly "all business" would include the sitting of any of our committees. We are a part of Parliament. We are not adjourning. When you prorogue, it is a recess, and nothing is to be done.

I think honourable senators will find that the only time this caused a bit of a problem was during World War I, around 1916 or 1917. In my view the Senate is part of Parliament, therefore, we just suspend business. It is that clear.

(1250)

Hon. Bill Rompkey: Honourable senators, on that point, my understanding is the same as Senator Taylor's, having gone through a number of prorogations. Each time it happened, all business was suspended and all the mechanisms stopped. It was a virtual cleaning of the plate to be renewed when Parliament sat again. On that point I agree with Senator Taylor.

However, I should like to make another point which I think senators should consider, and that is the budgetary implications. We do not have any figures here as to what such a committee would cost. The television and radio coverage would not be a big cost, however, travel might very well be, because the task force is authorized to adjourn from place to place in Canada, and the Standing Committee on Internal Economy, Budgets and Administration will be ordered to provide the task force with an appropriate budget to permit it to carry out its work.

One of the policies we have been following is to make sure that, at such time as committee work is approved, the appropriate budget is approved at the same time so that we know what we are getting into. There are other committees that want to sit. There are other committees that want to do work. If we are ordered to fund this committee carte blanche, without any figures before us, certainly that impacts on the work of other committees. The chairs of the other committees might wish to consider what impact such a move would have on their work. I feel that if the Senate is considering that move, that that is a point we should take into consideration.

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, all the authorities make very clear that the prorogation of Parliament is a prerogative of the Crown, and Beauchesne's sixth edition, citation 234 states as follows:

Just as Parliament may only commence its deliberations at the time appointed by the Governor General, so it may not continue them any longer than the Crown pleases.

Then Erskine May, the twenty-second edition, at page 232, uses virtually the identical words:

Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases.

It is simple logic that if Parliament cannot continue after prorogation, neither can its committees. The committees are creatures of the Senate. They depend on the Senate for their creation and continued existence, and I am at a loss to know how the Senate could give them authority to do something, namely to sit during prorogation, whether it is a task force or a standing committee, when the Senate itself has no power or ability to do that.

No one is suggesting, or would suggest, that the Senate could continue its sittings after prorogation, and we all appreciate that this would be completely inappropriate, but to have our committees continue their sittings in such circumstances would be equally wrong.

Senator Carstairs made reference earlier to the effect of a prorogation on Parliament. She stated that it is also very clear in the authorities, and she quoted Beauchesne, at page 66, citation 235(1), which I will repeat:

That committees cannot sit during prorogation is well illustrated by an event that happened away back in 1873, which is documented in Bourinot's fourth edition, at page 467, and I will quote from that.

...no committee can sit after a prorogation. A memorable case in point occurred in the session of 1873 in the Canadian Commons. It was moved that a select committee be appointed to inquire into certain matters relating to the Canadian Pacific Railway, and that it had power, if need be, to sit after the prorogation. The resolution was agreed to, but members had serious doubts whether such a committee could sit as proposed. It having been admitted, by all parties after further consideration, that the house could give no such power to a committee, it was arranged that the house should adjourn to such a day beyond the 2nd of July, as would enable the committee to complete the investigation and to frame a report.

Now some may argue that notwithstanding the authorities, and notwithstanding what happened in 1873, the Senate should nevertheless authorize such a group - whether it be the Committee on Transport and Communications or a task force, as proposed by the Deputy Leader of the Opposition - to sit during prorogation on the grounds that our Committee on Internal Economy, as mentioned earlier by Senator Carstairs, already has the power to do so.

There is an important distinction here, honourable senators. I believe, as mentioned by Senator Carstairs, that should be kept in mind when examining the case of the Internal Economy Committee, because that committee gains its authority, honourable senators, to sit after a prorogation from the Parliament of Canada Act, which specifically provides for this exception. It is critical to understand that this is not simply a case of the House of Commons and Senate passing a law to allow this to happen, but rather that this was also agreed to by the Crown when Royal Assent was given to the Parliament of Canada Act.

I began my remarks by noting that prorogation was the prerogative of the Crown. Unless the Crown assents, as it has done for the unique case of our Committee on Internal Economy, neither the Senate nor its committees may sit after a prorogation. That has been the law since 1867 in Canada, and we have no authority for unilateral change.

I wish to make one other point. There has been one precedent for a committee to continue its work on an order of reference during a prorogation. The Banking Committee did it a few years ago, and I suspect it was a rather bad precedent. They acted as an informal, bipartisan group who met with people and gathered information during a prorogation and then, in the new session, revived the order and had the material from the intersessional time referred to the committee. However, they did not officially exist and the Committees branch could not offer them official assistance during their so-called hearings. They could not officially act, and the Senate itself was not involved in empowering them to act intersessionally.

National transportation, I wish to emphasize, does not fall within the jurisdiction of the Internal Economy Committee, therefore how can it create a task force on a matter over which it has no jurisdiction? The Parliament of Canada Act provided this exception for the Internal Economy Committee, as I mentioned, for administrative reasons and administrative reasons only; not to create quasi-committees to deal with substantive issues.

I have already mentioned in my remarks that we would be going behind the back of the Crown in establishing what is a committee - the task force referred to by Senator Kinsella - in everything but name only. Honourable senators, I suggest that such a move would be totally out of order.

Hon. John G. Bryden: Honourable senators, I have a very small point to make; however, I believe it is fatal. We are not dealing here with an order of reference of our own house. The transport act, or the provision under which this comes, directs that the matter be sent to the appropriate committee. There is no authority in the statute to send it to the appropriate task force or the appropriate study group; it is to be sent to the appropriate committee. There is no legal basis on which we could refer this matter to anyone other than the appropriate committee. As was agreed, the appropriate committee, if there is prorogation, will not exist; therefore it would be impossible for the task force to deal with the matter and, indeed, for such a matter to be referred to a task force. The only authority is to the appropriate committee.

(1300)

Hon. Peter A. Stollery: Honourable senators, I should like to speak on this matter briefly. There is a motion that attempts to rework the Internal Economy Committee, of which I am a long-time member, and give it authority that belongs to the Senate. This motion is not only out of order, it is so out of order I can hardly believe my ears.

The Internal Economy Committee has a very narrow mandate. It has been very complicated to administer that mandate for many years, to try to keep certain expenses and business of the Senate in progress when there is a prorogation. That is all the Internal Economy Committee is authorized to do.

It is unfortunate that we would try to turn the Internal Economy Committee into the Senate and attempt to give that committee rights that belong only to the Senate when it is sitting as the Senate.

Honourable senators, we have been playing pretty loose with the rules around here. This would be just about as bad a thing as we could do. Not only is it out of order but it is important that it go on the record, and that people understand that any committee is only an extension of the Senate. Committees cannot hijack rights that belong to this chamber.

It is for that reason, honourable senators, that I rise just to get in my two cents' worth because I think it is very important. We have been moving away from the basic procedures and parliamentary rules under which the Senate is supposed to operate.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, there is no question in my mind that if the Senate resolves to create a task force during prorogation, that is completely within its authority to do so. It has been done before. The Banking Committee is the one that comes to mind. That committee had started a study on corporate governance, had lined up witnesses ahead of time and then obtained the authority during prorogation to convert itself into a task force and to continue its work.

In this case, however, the real question is the credibility of the government on this issue. The government has tabled the order. It has moved to refer it to the transport committee, with the full knowledge that, on Friday midnight, that committee and all of the other committees will have dissolved. Thus, in effect, the order will be in limbo.

If the government were serious that a study of the order be started, it would give the tools to certain senators to carry on the study during the period of prorogation. This order expires on November 9 and, although the act directs that it shall only be studied by the appropriate committee, there is nothing to stop the Senate of Canada from charging a group of senators, under the rubric or the heading of a task force, to engage in that study. We can decide who studies what.

I am unfortunately reminded of the government's agreement to set up a special committee on Somalia to complete the work that the Létourneau commission was not allowed to complete. The government agreed to the setting up of the committee about three weeks before Parliament was dissolved, with the full knowledge that an election was coming. Therefore, the committee got nowhere because, as soon as it started its work, the writ was dropped and that was the end of it.

After the election, when we reconvened, we reintroduced the same resolution to create the same committee and the government said "no." The motion is still on our Order Paper. That is why I say the credibility of the government, once again, is being challenged.

If the government is serious, it will allow a study to be done by senators during prorogation. However, if it intends to repeat the same charade of the Somalia committee, - in other words, "Yes, we will create it with the knowledge that an election is being called and we will not get anywhere and after the election the pressure will be off, so we will just sweep it under the rug." If that is what is about to happen to this order, some of us do not want to engage in another charade of the same type.

The Hon. the Speaker: If no other honourable senator wishes to speak, the question before the Senate is the motion in amendment proposed by the Honourable Senator Kinsella, seconded by the Honourable Senator Simard - shall I dispense?

Hon. Senators: Dispense.

The Hon. the Speaker: Will those honourable senators in favour of the motion in amendment please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion in amendment please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the nays have it.

Senator Kinsella: On division.

Motion in amendment negatived, on division.

The Hon. the Speaker: We are now back to the main motion. It was moved by the Honourable Senator Carstairs, seconded by the Honourable Senator Furey, that pursuant to subsection 47(5) of the Canada Transportation Act - shall I dispense?

Hon. Senators: Dispense.

The Hon. the Speaker: Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the "yeas" have it. I declare the motion carried.

Senator Lynch-Staunton: May I have leave to ask whether it is the intention of the government to convene the committee today or tomorrow, to start the work as authorized by the Senate of Canada?

Hon. Marie-P. Poulin: Honourable senators, I thank the Honourable Leader of the Opposition for his question. I spoke to the Deputy Chair of the Standing Senate Committee on Transport and Communications this morning, before he left for Calgary. We agreed that we would speak later on, when he is in Calgary, over the phone. I am hoping we will have a meeting of the steering committee to discuss future strategy, probably tomorrow.

Senator Lynch-Staunton: I got my answer.

Motion agreed to.

Criminal Code Corrections and Conditional Release Act

Bill to Amend-Second Reading

Hon. Anne C. Cools moved the second reading of Bill C-251, to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences).

She said: Honourable senators, I should like to commend and praise Albina Guarnieri, the distinguished member of the House of Commons for Mississauga East. I applaud her for her efforts in bringing forward Bill C-251 and for her success in its passage by the House of Commons in June.

It is my honour that she has asked me to be the sponsor of this bill here in the Senate. Honourable senators, Bill C-251 addresses sentence insufficiencies in cases of malevolent and wilfully cruel multiple offenders, particularly multiple murderers.

The summary which accompanies Bill C-251 states:

The enactment also provides that where a person is sentenced for first or second degree murder and is at the time the sentence is imposed subject to a sentence for any offence other than murder, the person will not be eligible for parole until he or she has served the parole ineligibility period required by law to be served for that other sentence - the lesser of one third of that sentence and seven years - and the parole ineligibility period required by law to be served for the first- or second-degree murder.

Honourable senators, Bill C-251 proposes to amend the Criminal Code to provide that, in such related instances, the sentencing judge will have the discretion to order that such multiple offenders shall serve an additional parole ineligibility period not exceeding 25 years for the murder for which the offender is being currently sentenced, in addition to that parole ineligibility period that must be served for that other murder.

Honourable senators, Bill C-251 attempts to address many questions in respect of sentencing, parole eligibility, and section 745 of the Criminal Code regarding judicial review of parole ineligibility dates of first- and second-degree murderers.

On motion of Senator Cools, debate adjourned.

(1310)

Private Bill

Canadian District of Moravian Church in America- Third Reading

Hon. Nicholas W. Taylor moved the third reading of Bill S-30, to amend the Act of incorporation of the Board of Elders of the Canadian District of the Moravian Church in America.

He said: Honourable senators, I wish to thank the entire house for leaving a chance for the Moravian Church to come back again. It is probably one of the longest labours that this house has experienced. I think the original request came back in 1992 and was then lost amongst different senators here and there along the way.

The Moravian Church is established in both Labrador and Alberta. After having been a senator for about one year, I noticed that this bill, amongst others, had never been cleaned up. Cleaning it up, of course, took a lot of reinstating and getting things underway.

I wish to give special thanks to Senator Lowell Murray on the other side who, in his position as chairman of the Standing Senate Committee on Social Affairs, Science and Technology, was most helpful in telling me how to navigate through the many rocks, pillars, and obstacles one confronts in bringing a bill to fruition after lying by the wayside for many years. Most of that delay resulted from the fact that senators who had been seized with the issue for a year or so had passed on, and consequently this was bill was left behind.

I have little to say on the bill itself; it is a very simple bill. First, the bill makes the name of the Moravian Church the same in French and English. Second, it removes the limit on the amount of land or property they can own, which was a ridiculously low amount.

I thank all honourable senators, and I hope the bill will pass.

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

Motion agreed to and bill read third time and passed.

Present State and Future of Forestry

Report of Agriculture and Forestry Committee on Study Adopted

The Senate proceeded to consideration of the tenth report of the Standing Senate Committee on Agriculture and Forestry entitled: "Competing Realities: The Boreal Forest at Risk," deposited with the Clerk of the Senate on June 28, 1999.

Hon. Nicholas W. Taylor: Honourable senators, our subcommittee held 131 hearings over the course of a couple of years and filed its report on June 28 of this year. It was well received. That report has not yet garnered the all-time high interest of an earlier committee report, "Soil at Risk"; however, to date, in just the last few months, there have been requests for about 1,100 English copies and about 400 French copies of the report. Given that the report can also be found on the Internet, all in all it has had a very good following. We have had, I think, six editorials complimenting the Senate committee on its work.

The executive summary of the report refers to the fact that in face of the demands on the forest for aboriginal communities, habitat for wildlife, an attraction for tourism, and a place where biodiversity and watersheds are protected, as well as for fibre, we felt that we need new and better ways to manage our activity in the boreal forest to meet the competing realities of preserving the resource, maintaining the lifestyles and values of boreal communities, and extracting economic wealth and preserving ecological values.

The subcommittee believes that we can and must develop strategies that can help to ensure the survival of our beleaguered forest while still enhancing traditional forest use and creating economic benefits. We further believe that it is important to move in this direction very soon before certain opportunities are lost forever.

The plain fact of the matter is that, no matter how many trees are planted, at the rate we are going, we are cutting the forest more quickly than we are replacing it. We are cutting at a rate, admittedly, where the forest itself will survive to supply trees, as they have across Scandinavia, but not enough of a forest to supply ecological, tourism, and aboriginal needs.

We recommended that the forest be divided into three categories. One category would find 20 per cent of the area intensively managed on the Scandinavian model - some people call that plantation planning, but it is not exactly that - for purposes of timber and fibre production. Judging by the Scandinavian examples that the subcommittee saw, intensive management could boost timber yields by as much as eight times per hectare. In other words, the necessity for our timber and fibre industry to go out and harvest virgin forests would decline as we developed an intensive managed area.

Intensive productivity would free up more of our forest for ecological preservation, aboriginal use, tourism, wildlife protection, and other uses, and at the same time preserve our industry. The supply of timber and fibre for mills from the intensively managed area could also be supplemented by sustainably grown timber from private lands, including reforested marginal farm land near the forest fringe. This is very important because our tax laws have to change from the last century's incentives for converting forests to farms to laws that now do the exact opposite - convert marginal farms back to forests. Alternative fibres could also be used more widely, and that includes fibres such as hemp and flax.

The second category would be to manage at a less intensive level over a broader area with long-term leases, audited regularly by community groups assisting forestry experts. This zone would retain a relatively natural mixture of tree species and ages for the sake of preserving biodiversity, but would also accommodate the full range of forest uses and communities, including aboriginal hunters and trappers, tourist outfitters, and recreational users.

That second category is very much the same - about 60 per cent of the area - as we perceive the forest today.

The third category, constituting up to 20 per cent of the boreal forest, would be set aside as protected areas.

We set aside far too little of our forests as protected areas, particularly when some of the best timber we have is in protected areas. There continues to be pressure for provincial governments to extend rights to cut timber in this area. This would include old growth boreal forest areas traditionally used for native trapping, as well as ecological areas of significant wildlife habitat.

The subcommittee realizes that the system of designation recommended will not happen overnight. It will take some time and a great deal of cooperation between various jurisdictions to fully implement such a system. However, we firmly believe that such a long-term goal is essential and that a start must be made towards this soon. In pursuing this goal, the federal government must at all times live up to its responsibilities, particularly concerning aboriginal peoples. The tax system can always be used as a mechanism to promote sustainable forest practices.

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In reaching these conclusions, the subcommittee is not advocating that we mimic the Scandinavian situation in its entirety. Unfortunately, there are few untouched forests left in that part of the world. However, we do believe that we can learn much from their expertise in intensive forest management and apply that experience to our intensively managed areas. If we do, we will then be able to sustain a healthy forest industry and still preserve undisturbed large tracts of boreal wilderness, which we are fortunate enough to still have. In effect, we could have our cake and eat it too, if only we move quickly and decisively.

Honourable senators, I move the adoption of the report.

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

Motion agreed to and report adopted.

[Translation]

Official Languages Act

Progressive Deterioration of French Services Available to Francophones Outside of Quebec- Inquiry-Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Simard calling the attention of the Senate to the current situation with regard to the application of the Official Languages Act, its progressive deterioration, the abdication of responsibility by a succession of governments over the past ten years and the loss of access to services in French for francophones outside Quebec.-(Honourable Senator Prud'homme)

Hon. Marcel Prud'homme: Honourable senators, you are all aware of the great interest raised by this inquiry by Senator Simard. I attended the Francophonie Summit in Moncton of my own accord, not being part of the Canadian delegation. You are all aware of how I do not always follow the beaten path.

For three days I was able to witness the progressive deterioration of application of the Official Languages Act. It is not enough to boast about it to the rest of the world, particularly when it is pushed aside as soon as we are back in this country.

All those great parliamentarians in the current government and in the previous governments have boasted about how good Canada's Official Languages Act is. Everywhere in the world, moreover, people wonder how Canadians manage to live together so harmoniously, despite their differences. Our reality may be quite another thing.

We have some great champions in the Senate. The grand champion of them all is the man who has always been a pillar of the cause, the totally unsinkable Honourable Jean-Robert Gauthier. And there are a few others, for instance the Honourable Louis Robichaud, honoured consistently in New Brunswick for his contribution in this connection ever since 1960. I had the honour of campaigning with him in 1960 - more or less at the same time as the Jean Lesage campaign in Quebec. There is no way we will humble ourselves, or even to accept sympathy or understanding. I am not interested in anybody's sympathy and understanding for the French-Canadian people. I am a French-Canadian, even though the Bloc Québécois wants to change the definition and thus do away with it. To use the term used by my good friend Suzanne Tremblay, MP for Rimouski, there is no way that we can be made to disappear with a quick "Poof! Poof!" Not only are francophones outside Quebec going to disappear, but now they are using their incantation of "Poof! Poof!" on us. The French-Canadian people is no longer living. Funeral details to follow.

I most definitely intend to speak out in Quebec against this premature funeral. I shall be going to Trois-Rivières, Drummondville, Sherbrooke and Alma, cities in the very heartland of Quebec, where the true French-Canadian people reside.

I have great sympathy for what Senator Simard is trying to do. There are in this Senate some people of extraordinary good will who, while not actually bilingual, have their heads and hearts in the right place. I accept that these people may not be able to speak French, as long as they admit the reality of the fact that, on this troubled planet, a minority is being stomped on by a majority in Canada. A number of us are sick of these grandiose speeches inviting people to take a look at what is happening in Canada. Just listen to yourselves.

Take a look at what is happening in Canada. I will not belabour the point today, since everyone seems to be preparing for the end of the session. What I cannot understand is that we have been told that there will be a prorogation. I have not been so informed as yet, so I will proceed as though the session were continuing.

I am told that the session is now on its last legs. Personally, I am acting as though we were going to continue, and that is why the members of the Transport and Communications Committee should meet and continue their work until the end is definitively announced and the time and date given.

I can tell you in advance that Senators Gauthier, Simard, Prud'homme, and anyone else who wishes to join us, will be re-introducing all these inquiries. This will give rise to some very lively, very measured and very tough debate, to arrive at a true picture.

I am giving you plenty of notice that I do not intend to let Senator Simard's resolution die on the Order Paper. I will not let Senator Gauthier down easily. In the very first days of this possible new session, we will reintroduce this motion. That is why I have limited myself today to a few preliminary remarks.

On motion of Senator Finestone, debate adjourned.

[English]

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Foreign Affairs

Conflict in East Timor-Briefings by Ministers Involved

Hon. B. Alasdair Graham (Leader of the Government): Honourable senators, I should like to have leave to make a brief announcement concerning the remarks I made earlier about East Timor.

The Hon. the Speaker: Is leave granted, honourable senators?

Some Hon. Senators: Agreed.

Senator Graham: Honourable senators, it was suggested earlier that we might have briefings with the appropriate ministers on the situation in East Timor; namely, the Minister of Foreign Affairs, the Minister of National Defence and the Minister for International Cooperation. We have arranged such a meeting for the Standing Senate Committee on Foreign Affairs and the appropriate committees in the other place. That meeting is to be held on Friday morning, from ten o'clock to twelve o'clock. Of course, any honourable senator will be welcome to attend those briefings. We will send a formal notice of this event to all honourable senators.

Hon. Marcel Prud'homme: Honourable senators, I wish to ask the minister a question. Are you advising us that Parliament will not be prorogued until at least twelve o'clock on Friday?

Senator Graham: Honourable senators, I have merely said that the ministers will be available to members of the appropriate committees in the other place and the Standing Senate Committee on Foreign Affairs, and that any honourable senator who wishes may attend the briefing on the situation in East Timor.

You may wish to deduce from that that there will not be a notice of prorogation prior to that time. As all honourable senators know, I am not in control of prorogation. It is my understanding that the meeting will take place at ten o'clock on Friday.

Hon. A. Raynell Andreychuk: Honourable senators, is the Leader of the Government in the Senate saying that this will be a joint meeting between the two Houses? If so, will it be co-chaired by the chair of our Foreign Affairs Committee and the chair of the House of Commons committee, or will there be separate briefings?

Senator Graham: Honourable senators, I cannot even use the term "joint meeting." Perhaps one could use the term "parallel meetings." This will merely be an opportunity for members of the House of Commons and the Senate who are interested in this matter to meet. How the meeting will be chaired will be worked out prior to Friday.

Senator Andreychuk: I suggest that the meeting should be co-chaired. I have asked for a debate in Parliament on this matter. I presume that this is the best we will get at this point. I hope that there will be a full opportunity to ask questions. The only way I can see that happening is if the meeting is co-chaired. That has worked effectively in the past and I suggest that the same procedure be followed, if possible.

Senator Graham: I am sorry, honourable senators, to have prompted this discussion. I had intended only to make an announcement in response to requests from honourable senators.

Honourable senators will recall that, during the crisis in Kosovo, we arranged for Ministers Axworthy and Eggleton to appear at an informal meeting with members of all sides of the house, including independents. That was quite a successful undertaking, as I hope will be the meeting on Friday.

Question of Privilege

The Hon. the Speaker: Honourable senators, we have reached that point of the Orders of the Day where we can proceed with the notice that we received from Senator Andreychuk regarding a question of privilege.

Hon. A. Raynell Andreychuk: Honourable senators, I have given notice of a question of privilege concerning the Standing Senate Committee on Aboriginal Peoples.

As the Senate knows, the Standing Senate Committee on Aboriginal Peoples was empowered to study the issue of self-governance some time ago and the committee is to report before November 30, 1999. The committee has been holding hearings. Senator Watt chairs the committee and I am a member of that committee. At this point, we have stopped our hearings and have been meeting in camera studying various drafts. We are currently working on draft four.

No publicity was issued. All drafts received in my office were marked "draft" and "confidential." I was shocked to learn on the weekend that in the National Post of Saturday, September 11, 1999, there is a story entitled "Senators want special court for aboriginals - Scrap Indian Act, report recommends."

The article goes on to speak to various recommendations. It also indicates that a draft report was received. I am prepared to table a copy of the National Post of Saturday, September 11, 1999 and a copy of Quorum that reproduced that article.

The Hon. the Speaker: Honourable senators, is it agreed to have those items tabled?

Hon. Senators: Agreed.

Senator Andreychuk: I believe that all honourable senators will agree with me that we do some of our best work in committees. In most cases, free and open debate has led to reports that most senators sign. I have been involved with numerous reports and I can think of no case where a dissenting report was filed. We freely and openly discuss our opinions and try to find common ground.

(1340)

It is extremely important that our committees work in camera and that our drafts be held confidentially, that they are not distributed beyond the members of the committee and that the committee not be in any way prejudiced by leaks at any point. We float our ideas. Some ideas are imaginative, some are outrageous and some are down to earth. In the end, we take them all together and find the common ground.

This report obviously was leaked. There was certainly no authority to release it beyond the circulation to committee members for their own discussions in camera. In fact, the report was not circulated to any senators outside of the committee.

We have been rather fortunate to have a number of members on the committee who attend consistently. We have enjoyed a rather collegial approach to our report. It was disconcerting to see recommendations that may or may not be appropriate, which may or may not be chosen by the full committee, being publicized in the newspaper. My ability to feel secure that my comments in committee hearings will stay in the committee has been prejudiced. My options in deciding what recommendations are appropriate and inappropriate are prejudiced. I take this breach very seriously.

Honourable senators, this leak is also a breach of privilege for all members of the Senate. To read recommendations in the newspaper is certainly not how we want to receive reports of the Senate. It is time that we did something about this state of affairs.

In my own experience, I was sitting on another committee when a report was leaked to outside sources. I raised the issue within the committee. I raised it with the chairman and I expressed my displeasure. I asked the chairman to ensure that measures were taken to prevent any repeat of the action. I was assured that the matter would be examined.

I am also aware of the fact that draft reports of the Joint Committee on Custody and Access appeared in the newspaper before that report was tabled here.

When this report was leaked to the National Post, I felt the matter had become a question of privilege. We are coming to the point where we cannot do our work in committees if this kind of behaviour continues.

I have no idea who might have submitted the report to the National Post. I certainly have no idea whether it was done intentionally, accidentally or negligently. However, on the face of it, the sheer fact of the publication of a draft is prima facie a breach of the privilege of this chamber. I ask that there be such a ruling. I would then be in a position to move the following motion:

That the matter be referred to the Standing Committee on Privileges, Standing Rules and Orders for their study and investigation.

I would hope that the standing committee would look into not only this breach but into the whole matter of how our draft reports and our committees operate when they are in confidence and in camera.

The Hon. the Speaker: Are there any other honourable senators who wish to speak to the point of privilege?

Hon. Charlie Watt: Honourable senators, there is no doubt in my mind, when you read the National Post, that the unauthorized report was leaked. The description given by the National Post cannot help but infer that the report was leaked.

I was very saddened by this event. I do not think things like this should be happening within the Senate. Committee members are placed in the position where they question whether they can trust each other. In order to restore this trust, honourable senators, I support Senator Andreychuk's initiative in making that motion.

Hon. Anne C. Cools: Honourable senators, I thank Senator Andreychuk for bringing forward this question. I also thank her for her documentation and for the facts as she has outlined them. She has not cited any authorities. Perhaps she does not have to do so because many of the authorities are known.

Senator Andreychuk has brought forth a genuine question of privilege. I should like to add my support to her in this regard.

This question is extremely timely. We cannot open a newspaper any day of the week without reading of the leaking of some draft report from Parliament. Senate consideration of this matter is long overdue.

In defence of senators, most draft reports described in the newspapers in that way seem to come from committees of the House of Commons. In the many years that I have been here, it has been unusual to read in the newspaper about a draft report of a Senate committee. I am not meaning to praise the Senate, but that has been my experience.

On December 3, 1998, the House of Commons had a debate on a related subject-matter. Speaker Gilbert Parent of the House of Commons made the following statements at page 10866:

I must admit that I am becoming less patient by the day...

I would like the House procedure committee to address this matter as soon as possible. I would like some kind of recommendation to come forth to the House.

I have said on so many occasions that I do not have the power needed to curtail this type of thing. Collectively, members of Parliament have this power.

He continued:

If a court of law can put a ban on publication on certain materials and it is upheld, why can the highest court in the country not do something? I put that as a question, only as a question. But I wish that first the procedure committee would have a look at it post haste and we will wait to see what the outcome of that is.

I now refer to the draft report of the Special Joint Committee on Custody and Access which was quoted extensively in newspaper reports long in advance of the report being received or tabled or introduced here in the Senate on December 9, 1998, or in the other place. A profound atmosphere of mistrust and distrust is engendered in committees by this sort of activity.

On December 7, 1998, I put forward a motion to which I had not spoken about that particular joint committee's leaked draft report. For His Honour's consideration, I would also refer to an article in The London Free Press dated Saturday, November 28, 1998. That date is about 12 days before the joint committee report was introduced in both chambers.

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This was an article by Mr. Jeremy Torobin entitled "Battle for Custody." The article deals quite extensively with the leaked draft report, with lots of commentary, including a particular remark made by a family law lawyer from Toronto named Carole Curtis. She said:

The leaked draft report that I saw was just full of anti-woman vitriol.

That particular leak bothered me because the situation becomes even more complex when we are speaking about such an unauthorized document being in the hands of an officer of the court for commentary.

In any event, I am aware that we are under a particular time constraint because the representative of His Excellency will be arriving momentarily, but to round out the point, there must be a balance between freedom of the press and the freedom of members of Parliament to be able to do their work without undue disturbance. For the most part, many of us have laboured on, trying to be strategic or politic about whether or not some of these issues should be raised. I am of the firm opinion that it is possible to maintain a balance on all fronts on all of these issues.

In closing, I would ask His Honour to give proper deliberation and thought to this particular issue. I submit to all honourable senators again that the issue needs study. From what I can understand, that is all that Senator Andreychuk is asking. She wants a committee to examine the issue in a just and judicious manner. Very clearly, honourable senators, it is time for the Senate to look at some of these matters judiciously.

Hon. Jack Austin: Honourable senators, I am a member of the Standing Senate Committee on Aboriginal Peoples. Our committee met last Wednesday to discuss a draft report, which was called the fourth draft. Our review of that report led us to believe that we preferred an earlier draft to the conclusions that were contained in that fourth draft, which had been prepared by the staff of the committee that Senator Watt chairs.

It raises serious problems of privilege to see a draft that was, in a sense, rejected in our committee discussions appear in the newspapers as an about-to-be-released report of the committee.

I might ask the Senate for approval to table an editorial in today's National Post commenting adversely on the work of the committee as displayed in the unauthorized release of a report that really is not ours. It puts senators who are members of the committee, and the Senate as a whole, in an unfavourable position. What happens now is that, regardless of our views as to what should be in the report, it will not be the report as leaked to the media. We are compromised. If the media have created expectations that certain recommendations will be made and we do not make them, there will be speculation as to why we did not make them.

I could go on in that vein; however, quite clearly, it makes further debate by the committee on its intended report and all of the committee's work, which is extensive, in bringing witnesses to Ottawa, to hearing witnesses, and the hours that members of the committee have put in, somewhat questionable in the minds of various constituencies in the country.

I consider that the story is more than a nuisance. It is a serious breach of our privileges because it compromises our work.

Honourable senators, I wish to refer to our rules for one moment because, as I understand the rules, before the motion can be put His Honour must make a finding that a prima facie case of privilege has been established and it is only thereafter that, under rule 44(1), Senator Andreychuk can put the motion that she has announced she would like to make.

I wonder whether or not His Honour is ready to make that finding.

The Hon. the Speaker: Honourable senators, I will hear from Honourable Senator Fraser. However, unless there are new arguments presented, I will be prepared to rule.

Hon. Joan Fraser: Honourable senators, I have a comment that follows directly on something that Senator Austin said. I suspect it may have been said inadvertently because I know that Senator Austin has good reason to understand the workings of the free press. He suggested, as I understood him, that the story and, indeed, perhaps the editorial in the National Post were a breach of privilege.

I would suggest that if privilege has been breached - and I think it may have been - the breach is not the fault of media; rather, it is the fault of those who leaked the draft report. The media have every right to print material that comes into their possession, with very few exceptions. I do not think this draft report would be covered by those exceptions.

Senator Austin: Honourable senators, I agree totally with Senator Fraser. I had no intention of saying, nor do I believe that I said, that there was any breach of privilege by the media. What I am saying is that the story in the media is a breach of our privilege because it compromises the work of a Senate committee. This is not to say that the media do not have the right to publish this particular story; I believe they do.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I wish to have tabled the item in The London Free Press that Senator Cools mentioned.

The Hon. the Speaker: Is leave granted to table the article?

Hon. Senators: Agreed.

The Hon. the Speaker: Honourable Senator Austin, did you also wish to table an editorial?

Senator Austin: Yes.

The Hon. the Speaker: Is leave granted, honourable senators, to table that as well?

Hon. Senators: Agreed.

Speaker's Ruling

The Hon. the Speaker: Honourable senators, I thank all honourable senators who have participated in this debate on privilege, and I thank Honourable Senator Andreychuk for raising the matter. I am prepared to rule at this time, unless someone else wishes to speak.

I would refer honourable senators to Beauchesne's 6th edition, page 241, citation 877, which states:

No act done at any committee shall be divulged before it has been reported to the House.

Further in the same citation, it states:

The publication of proceedings of committees conducted with closed doors or of reports of committees before they are available to Members will, however, constitute a breach of privilege.

Then, of course, we have our own rules, which are equally clear in that regard. Rule 43(1) states as follows:

The preservation of the privileges of the Senate is the duty of every Senator. A violation of the privileges of any one Senator affects those of all Senators...

Our rules then set out the conditions that the Speaker must consider in deciding whether or not there is a prima facie case. These are founded in rule 43(1), which states the matter must:

(a) be raised at the earliest opportunity.

That has been done.

(b) be a matter directly concerning the privileges of the Senate...

That has been established.

That will be accomplished with the motion that Senator Andreychuk has indicated she is prepared to make.

(d) be raised to correct a grave and serious breach.

The comments that I have heard have convinced me that that is the case.

The four conditions having therefore been met, I rule that there is a prima facie case. Senator Andreychuk may proceed with her motion.

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Referred to Privileges, Standing Rules and Orders Committee

Hon. A. Raynell Andreychuk: Honourable senators, I move, seconded by Senator Prud'homme:

That the question of privilege concerning the unauthorized release of working drafts of a report of the Standing Senate Committee on Aboriginal Peoples be referred to the Standing Committee on Privileges, Standing Rules and Orders.

The Hon. the Speaker: Honourable Senator Andreychuk, you are simply proposing that the matter be moved to the Standing Committee?

Senator Andreychuk: Yes.

The Hon. the Speaker: You should have your motion in writing, but if the Senate agrees, we can do it verbally. Is it agreed?

Hon. Senators: Agreed.

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

Motion agreed to.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, before I leave the Chair, I should like to draw your attention to a distinguished group in the galleries, all of the galleries. These are the members of a group attending here on Parliament Hill for a Special Conference on Parliamentary Committees. These are Clerks and Table Officers from all across Canada, including from our latest new territory, Nunavut. They are here for a conference. This is the initiative of Gary O'Brien, our own Principal Clerk of Committees. It is the first time that such a conference has been held, and I think it is a magnificent idea. It should be helpful to all the Clerks and Table Officers across the country.

On behalf of honourable senators, I wish you welcome here in the Senate.

Hon. Senators: Hear, hear!

The Senate adjourned during pleasure.

[Translation]

Royal Assent

The Honourable John Major, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy Governor General, having come and being seated at the foot of the Throne, and the House of Commons having been summoned, and being come with their Acting Speaker, the Honourable the Deputy Governor General was pleased to give the Royal Assent to the following bills:

An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, (Bill C-32, Chapter 33, 1999)

An Act to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act and to make a consequential amendment to another Act, (Bill C-78, Chapter 34, 1999)

The Honourable the Deputy Governor General was pleased to give the Royal Assent to the said bills.

The House of Commons withdrew.

The Honourable the Deputy Governor General was pleased to retire.

The sitting of the Senate was resumed.

[English]

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Nuclear Arms

Motion to Urge Nuclear Weapons States to Take Weapons Off Alert Status-Debate Adjourned

Hon. Douglas Roche, pursuant to notice of September 7, 1999, moved:

That the Senate recommends that the Government of Canada urge the nuclear weapons states plus India, Pakistan and Israel to take all of their nuclear forces off alert status as soon as possible.

He said: Honourable senators, the prestigious journal Scientific American recently reported that on January 25, 1995 military technicians at a handful of radar stations across northern Russia saw a troubling blip suddenly appear on their screens. A rocket, launched from somewhere off the coast of Norway, was rising rapidly through the night sky. Well aware that a single missile from a U.S. submarine plying those waters could scatter eight nuclear bombs over Moscow within 15 minutes, the radar operators immediately alerted their superiors.

The message passed swiftly from Russian military authorities to President Boris Yeltsin, who, holding the electronic case that could order the firing of nuclear missiles in response, hurriedly conferred by telephone with his top advisors. For the first time ever, that nuclear briefcase was activated for emergency use.

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For a few tense minutes, the trajectory of the mysterious rocket remained unknown to the worried Russian officials. Anxiety mounted when the separation of multiple rocket stages created an impression of a possible attack by several missiles. However, the radar crews continued to track their targets. After about eight minutes, senior military officers determined that the rocket was headed far out to sea and posed no threat to Russia.

The unidentified rocket in this case turned out to be a U.S. scientific probe, sent up to investigate the northern lights. Weeks earlier, the Norwegians had duly informed Russian authorities of the planned launch from the offshore island of Andoya, but somehow word of the high altitude experiment had not reached the right ears. That frightening incident, according to Scientific American, aptly demonstrates the danger of maintaining nuclear arsenals in a state of hair-trigger alert.

Doing so heightens the possibility that one day someone will mistakenly launch nuclear missiles, either because of a technical failure or a human error. A mistake made, perhaps, in the rush to respond to false indications of an attack.

The Norway incident was not an isolated one. The U.S.-based Centre for Defense Information reported this month that in the years 1977 to 1984, a total of 20,784 false warning nuclear indications, most of them minor, were processed.

Last March, appearing before a joint meeting of Senate and House of Commons Foreign Affairs Committees, General Lee Butler, former commander-in-chief of the U.S. strategic command, said that upon receiving confirmation of an impending attack, the U.S. president would have only 12 minutes to decide whether to retaliate.

Both the U.S. and Russian military have long instituted procedures to prevent an accident from happening. However, their equipment is not foolproof. Russia's early-warning and nuclear command systems are deteriorating. The safety of all other nuclear weapons systems, in particular, those of India and Pakistan, is even less reliable. All told, there are 5,000 nuclear weapons on hair-trigger alert status, meaning they could be fired within minutes. The fate of humanity must not hang by such a slender thread.

Thus, a movement is building up around the world to de-alert all nuclear weapons. This would be done by the physical separation of the warheads from the delivery vehicles. That is the intent of the motion I respectfully submit to the Senate. It reads:

That the Senate recommends that the Government of Canada urge the nuclear weapons states plus India, Pakistan and Israel to take all of their nuclear forces off alert status as soon as possible.

Honourable senators will recognize that the motion is narrowly drawn. The subject of nuclear weapons is huge and complex. The abolition of nuclear weapons, for which I stand, entails a lengthy debate, but de-alerting is precise and sharply focused and can be done immediately under conditions of mutual verifiability. It must be done in order to prevent a calamity occurring through human error, system failure, irrational acts, or by the simple working of the laws of chance.

Some may interpret this motion as connected to the famous Y2K problem, which deals with the ability of computers to properly interpret the correct date change when the year 2000 arrives. It is true that the failure of computers to recognize the year 2000 could infect the command, control, communication and intelligence systems of nuclear forces. There may or may not be a problem on New Year's Eve, at midnight.

However, Russia and the U.S. are sufficiently concerned about this that they intend to establish a joint centre in the United States which would seat a handful of U.S. and Russian officers side-by-side for a few days during the 2000 date switch to monitor blips on nuclear screens. The officers would be in direct touch with their respective national command authorities to alleviate any concern about blips that may occur on the date change. Key United States senators have called for the inclusion of China, India and Pakistan in this early warning centre, so concerned are they that ill-prepared computers may malfunction.

This response to a potential problem is clearly inadequate. The year 2000 date change merely highlights the existing danger to the world because of the alert status of nuclear forces. The world needs the safety that de-alerting would ensure, not just on New Year's Eve but throughout every day of every year.

Honourable senators, in short, the argument as put forth by the Canberra commission of international experts is that the practice of maintaining nuclear-tipped missiles on alert must be ended because: It is a highly regrettable perpetuation of Cold War attitudes and assumptions; it needlessly sustains the risk of hair-trigger postures; it retards the critical process of normalizing U.S.-Russian relations; it sends the unmistakable and, from an arms control perspective, severely damaging message that nuclear weapons serve a vital security role; it is entirely inappropriate to the extraordinary transformation in the international security environment.

Honourable senators, terminating nuclear alert would do the following: reduce dramatically the chance of an accidental or unauthorized nuclear weapons launch; have a positive influence on the political climate among the nuclear weapons states; and it would help set the stage for intensified cooperation.

The Canberra commission concluded that taking nuclear forces off alert could be verified by national technical means and nuclear weapon state inspection arrangements. De-alerting has a wide basis of support. The Government of Canada is in favour, and has expressed its support in a formal response to the report on nuclear weapons of the Standing Committee on Foreign Affairs and International Trade. Therefore, this motion falls within government policy.

The U.K. government recently relaxed a notice to fire its nuclear weapons from minutes to days. Resolutions of the UN General Assembly have urged de-alerting.

The chairman's report of the three-year preparatory process for the 2000 review of the non-proliferation treaty calls for de-alerting to prevent accidental or unauthorized launches.

Friends of the Earth, in Sydney, Australia, have obtained the support of 380 organizations around the world for de-alerting.

Honourable senators, a few years ago I went back to Hiroshima and Nagasaki, the two cities in Japan that suffered atomic bomb attack. I have seen these sites several times. Each time, it is a profound experience in understanding the destructive power of nuclear weapons.

Accidental nuclear war remains an immense treat to humanity today. We can help to lessen that threat. I commend this motion, honourable senators, for your consideration.

Hon. John. B. Stewart: Honourable senators, I should like to ask Senator Roche a question.

He has made a persuasive speech and my question is: Given the plausibility of the argument he advances, why is it that the nuclear weapons states plus India, Pakistan and Israel, have not already taken their nuclear forces off alert status? Is there some argument, or is it recalcitrance among one or more of the states?

Senator Roche: I thank the Honourable Senator Stewart for that question.

The main reason that the principal nuclear weapons states, led by the United States and Russia, along with the U.K., France and China, have not de-alerted is that nuclear weapons fit into the strategy of nuclear deterrence. It is argued by some that, by de-alerting, they are taking away or diminishing the constant status of nuclear deterrence. That argument has been rebutted. After all, in the case of an emergency or some crisis happening in international affairs, nuclear weapons could be reactivated.

Therefore, it is for the safety of the major areas of the world that the de-alerting process, campaign or movement has grown. It is held by proponents of de-alerting that it is a more important consideration for the safety of humanity to take weapons off alert status than to preserve nuclear deterrence as we have known it through the Cold War years.

(1430)

On motion of Senator Carstairs, debate adjourned.

Adjournment

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

Hon. Sharon Carstairs (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, September 21, 1999, at 2 p.m.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Tuesday, September 21, 1999, at 2 p.m.

Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

1st Session, 36th Parliament, Volume 137, Issue 158

Tuesday, September 14, 1999

The Honourable Gildas L. Molgat, Speaker

Table of Contents

THE SENATE

Tuesday, September 14, 1999

SENATORS' STATEMENTS

Sandra Schmirler

Best Wishes for Recovery

Question of Privilege

Business of the Senate

ROUTINE PROCEEDINGS

Transport

Tabling of Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada

Transport and Communications

Referral to Standing Committee of Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada-Notice of Motion

QUESTION PERIOD

Transport

Private Sector Proposal to Purchase Air Canada- Effect of Rule Regarding Ten Per Cent Ownership

Private Sector Proposal to Purchase Air Canada- Order in Council to Allow Discussion- Effect on Fair Competition

Onex Proposal to Purchase Air Canada and Canadian Airlines-Influence on Price of Shares

Onex Proposal to Purchase Air Canada and Canadian Airlines-Request for Names of Persons Involved in Discussions

Question on the Order Paper

Request for Answer

Transport

Private Sector Proposal to Purchase Air Canada- Effect of Rule Regarding Ten Per Cent Ownership- Possible Changes to Statutes- Government Position

Private Sector Proposal to Purchase Air Canada- Effect of Rule On 25 Per cent Foreign Ownership

National Defence

Conflict in East Timor-Duties of Peacekeeping Force

Conflict in East Timor-Possibility of Parliamentary Debate on Sending Troops

Replacement of Sea King Helicopters- Delays in Awarding of Contract

Foreign Affairs

Conflict in East Timor-Possible Investigation of Prior Events-Government Position

Answers to Order Paper Questions Tabled

Public Works-Government Contracts with BMCI Consulting Inc.-Request for Particulars

Customs and Excise-Implications of Tobacco Smuggling Activities-Request for Particulars

Agriculture and Agri-Food Canada- Research Conducted with Monsanto and Other Industry Partners-Request for Particulars

Environment Canada-Delegation to Meeting on Biosafety Protocol in Cartagena, Columbia- Request for Particulars

Business of the Senate

Answer to Order Paper Question Delayed

ORDERS OF THE DAY

Public Service Pension Investment Board Bill

Motion for Allotment of Time for Debate

Third Reading

Motions in Amendment

Motion in Amendment

Royal Assent

Notice

Transport and Communicationss

Order in Council to Allow Discussions on Private Sector Proposal to Purchase Air Canada Referred to Standing Committee

Motion in Amendment

Criminal Code Corrections and Conditional Release Act

Bill to Amend-Second Reading

Private Bill

Canadian District of Moravian Church in America- Third Reading

Present State and Future of Forestry

Report of Agriculture and Forestry Committee on Study Adopted

Official Languages Act

Progressive Deterioration of French Services Available to Francophones Outside of Quebec- Inquiry-Debate Continued

Foreign Affairs

Conflict in East Timor-Briefings by Ministers Involved

Question of Privilege

Speaker's Ruling

Referred to Privileges, Standing Rules and Orders Committee

Visitors in the Gallery

Royal Assent

Nuclear Arms

Motion to Urge Nuclear Weapons States to Take Weapons Off Alert Status-Debate Adjourned

Adjournment

1st Session, 36th Parliament,
Volume 137, Issue 158