Debates of the Senate (Hansard)

2nd Session, 36th Parliament,
Volume 138, Issue 47

Tuesday, April 11, 2000
The Honourable Gildas L. Molgat, Speaker

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Table of Contents

• SENATORS' STATEMENTS
  • Apology to the Honourable Ron Ghitter
    • Statement in Response
  • World Curling Championships World Junior Curling Championship
    • Congratulations to Winning Teams
  • Forum on Society and the Economy
  • Visitor in the Gallery
• QUESTION PERIOD
  • Foreign Affairs
    • Palestine-Israel Peace Negotiations—Statement by Prime Minister—Difference in Attitude Toward Quebec
    • Israel—Deployment of Neutron Anti-tank Mines—Possibility of Representations by Prime Minister During Visit
  • Solicitor General
    • Auditor General's Report on Royal Canadian Mounted Police Screening Process of Forensic Services and DNA Testing
• ORDERS OF THE DAY
  • Business of the Senate
  • Nisga'a Final Agreement Bill
    • Third Reading—Motion in Amendment—Debate Continued
  • Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference
    • Second Reading—Debate Continued
  • Criminal Code 
    Corrections and Conditional Release Act
    • Bill to Amend—Second Reading—Debate Continued
  • Internal Economy, Budgets and Administration
    • Eighth Report of Committee—Debate Adjourned
  • Financing of Post-Secondary Education
    • Inquiry—Debate Continued
  • The Budget 2000
    • Statement of Minister of Finance—Inquiry—Debate Continued
  • Energy, the Environment and Natural Resources
    • Motion to Authorize Committee to Review Canadian Environmental Protection Act Withdrawn
  • Review of Anti-Drug Policy
    • Motion to Form Special Senate Committee Adopted
  • National Defence
    • Motion to Establish Special Senate Committee to Examine Conduct of Personnel in Relation to the Somalia Deployment and 
      the Destruction of Medical Records of Personnel Serving in Croatia—Debate Continued
  • Legal and Constitutional Affairs
    • Motion to Authorize Committee to Meet During Sitting of the Senate Withdrawn
  • Transport and Communications
    • Motion to Authorize Committee to Meet During Sitting of the Senate Withdrawn
  • Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference
    • Motion to Instruct Committee to Amend—Point of Order—Debate Adjourned to Await Speaker's Ruling
  • Nisga'a Final Agreement Bill
    • Motion for Disposal of Third Reading
  • Adjournment

THE SENATE

Tuesday, April 11, 2000

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

Prayers.

SENATORS' STATEMENTS

Apology to the Honourable Ron Ghitter

Statement in Response

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, as my statement, I should like to read part of a statement by our former colleague the Honourable Ron Ghitter, regarding the apology that he received from Mr. Ezra Levant and Mr. Rob Anders, which states as follows:

...I have now received a complete and unequivocal apology from Mr. Levant and Mr. Anders...

In addition to the apology which will be published this week in The Calgary Herald, The Calgary Sun and The Edmonton Journal, the settlement also includes the full payment of all my legal costs and a substantial contribution to the Tom Baker Cancer Clinic and the Sheldon Chumir Foundation which will be made in equal sums.

The issue is not so much the attack on my integrity, which I found to be very hurtful, as much as it is the growing direction of politics in Canada where personal attacks are becoming more and more common. The issues involved are the very basic concerns of leadership, dignity and the fundamental responsibilities of those involved in public life to maintain an element of decorum, fairness and above all civility in their conduct.

To be clear, those of us in public life have an obligation to aggressively debate the issues, to question the policies of others, to engage in the cut and thrust of political dialogue and to advance our agendas and arguments in the most persuasive manner. However, to enter into unsavoury and mean-spirited tactics of character assassination, based on alleged facts that are false, and out of context interpretations, as a means to encourage campaign contributions is not only unacceptable, it is deplorable.

If such tactics are left unchallenged there will be a continuing growth of disrespect for our institutions and the dedicated men and women who choose to serve in them. The result will be that fewer and fewer talented Canadians will agree to serve in our Parliaments, our Legislatures and our City councils.

In this case the ultimate responsibility lies with Preston Manning.

Mr. Anders is a Reform M.P. and Mr. Levant was a close advisor to Preston Manning at the time he wrote and distributed the letter. They acted with Mr. Manning's authority, and the blessing of the Reform Party.

Mr. Manning had the following to say when I threatened a law suit.

There is nothing in the letter that is libelous, Ghitter has no grounds to sue.

With the things in that letter being on the streets of Alberta every day, what's Ron going to do, sue all the rest of Alberta? I mean he's an unaccounted, unelected Senator for whom Albertans have less and less respect.

This is the same Mr. Manning who previously is quoted as saying,

We will campaign on principles and specifics and avoid the simple bashing of opponents and the manipulation of symbols. I want to emphasize that we in the Reform Party are not interested in personal attacks on individuals or in bashing any group or region in Canada.

Mr. Ghitter ends his statement by saying:

I think it would be appropriate, and it is to be hoped that Mr. Manning would also publicly apologize for his support and encouragement of such deplorable conduct and defamatory statements by one of his M.P.s and a senior advisor in his office.

Hon. Senators: Hear, hear!

World Curling Championships World Junior Curling Championship

Congratulations to Winning Teams

Hon. Gerry St. Germain: Honourable senators, I rise today to pay tribute to 15 superb Canadians who hail from the great province of British Columbia. Canada and British Columbia are proud to congratulate these three world champion teams.

This past weekend, we saw the World Curling Championship Tournament held in Glasgow, Scotland. On Sunday, April 9, 2000, Canada's entry into the men's challenge was led by Greg McAulay's Royal City Curling Club from New Westminster. The foursome was comprised of Greg McAulay, skip; Brent Pierce, third; Bryan Miki, second; Jody Sveistrup, lead; and Darin Fenton, fifth. McAulay's team captured the men's world curling title with a smashing win over Sweden after nine ends. This was Canada's twenty-sixth senior men's title since competition began in 1959.

The men's victory completed a gold medal sweep for Canada after Kelley Law of Richmond, B.C., claimed the women's title Saturday with a thrilling 7-6 victory over Switzerland. The women's team, representing the Richmond Winter Curling Club, was comprised of Kelley Law, skip; Julie Skinner, third; Georgina Wheatcroft, second; Diane Nelson, lead; and Cheryl Noble, fifth.

Law clinched the global crown with the final rock of the tenth end and earned Canada its eleventh world women's curling crown. McAulay became the third B.C. skip to win a world title this year.

The first skip to win a world title this year was Brad Kuhn, of Vernon, B.C., who won the world junior men's title on March 26, 2000, at the Grundel Arena in Geising, Germany. The young men who led and represented Canada in the World Junior Curling Championship were coached by Jock Tyre. The team was comprised of Brad Kuhn, skip; Kevin Folk, third; Ryan Kuhn, second; Hugh Bennett, lead; and Jeff Richard, fifth. Team British Columbia was from the Kelowna Curling Club.

For the tenth time since the competition began in 1975, and for the third year in a row, Canada struck gold at the men's World Junior Curling Championship.

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It cannot get much better than this. Greg McAulay's victory marks the ninth time Canada has won both the men's and women's senior titles in the same year. No other country has ever accomplished this feat.

Honourable senators, British Columbians roared out of the hack, cleaned the house in Scotland, swept themselves to victory and slid out with the crowns, back to the great province of British Columbia.

Hon. Senators: Hear, hear!

Forum on Society and the Economy

Hon. Douglas Roche: Honourable senators, a remarkable event took place yesterday on Parliament Hill. The Forum on Society and the Economy, the highlight of a two-year consultation initiated by the United Church of Canada, led by its moderator, the Reverend Bill Phipps, brought a faith perspective to issues of responsible economic and social policy. The purpose of the forum was to address the fundamental principles and values of social justice that should underlie economic and political decision-making at the individual, community and national levels.

Some of the values cited were mutuality, community, human dignity and solidarity, and inclusion. Contrast these values with the voices of the poor who were heard yesterday. The poor are growing in number, sinking ever lower in spite of a rapidly expanding economy, and are experiencing feelings of being blamed and excluded. In seeking the common good, the forum's participants stressed the desire to take their rightful place in setting the national agenda and holding their governments accountable.

This is a timely message coinciding, as it does, with the United Nations Secretary-General's Millennium Report entitled "We the Peoples," which calls for civil society to draw strength from acting together within common institutions based on shared rules and values to free the world's peoples from want and fear. In an era of globalization, people feel threatened by events both close and far away. They are also more aware of injustice and exclusion and expect states to take meaningful action.

Yesterday's message was loud and clear: People who seek change are abandoning political parties and processes. In fact, our colleague Senator Murray told the gathering that political institutions in Canada have eroded to the point of "irrelevancy". We must be concerned that active citizens are moving away from Canada's political process.

Honourable senators, as I listened to this group of religious and community leaders, one telling word reappeared throughout the day — hope. The forum's expressed disaffection with government has not marred its appetite for action and new ideas, even if it is only a crack in the wall. The group that made up yesterday's forum will not be silent. They want change.

Visitor in the Gallery

The Hon. the Speaker: Honourable senators, I draw to your attention a visitor in our gallery. Mr. Cliff McIsaac was a member of the Saskatchewan legislature for some years. He was also a cabinet minister there at the same time as our colleague Honourable Senator Wiebe and, later, a member of the other place here in Ottawa.

Welcome to the Senate.

Hon. Senators: Hear, hear!

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[Translation]

QUESTION PERIOD

Foreign Affairs

Palestine-Israel Peace Negotiations—Statement by Prime Minister—Difference in Attitude Toward Quebec

Hon. Jean-Claude Rivest: Honourable senators, the Right Honourable Prime Minister of Canada is having a bad spring, this year. After all the tumult of the Liberal Party of Canada convention, now he has headed off to the Near East, where he has committed several blunders. This very morning, he spoke out in contradiction to the established Government of Canada policy on the ownership of the shores of Lake Tiberias, thus managing to upset Syria today, Israel yesterday, and Palestine the day before that.

Honourable senators, the Prime Minister, who claims to be a man of clarity, has managed to create confusion with his statement about a possible unilateral declaration of independence by the Palestinians. Such a declaration has political resonance on the Quebec situation — although the comparison is a tenuous one — given the debate that is going on here concerning the unilateral declaration of independence.

We are well aware that the situation in Quebec is not the same as in Palestine. What explanation could Canada give internationally, were it faced with such a situation, for having a different attitude toward Quebec than the Prime Minister has stated in connection with Palestine?

[English]

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I thank the Honourable Senator Rivest for that question. I had suspected that he did not attend the recent Liberal biennial meeting, and his description of it confirms the fact that he was not there.

I must correct the honourable senator when he describes it as a difficult meeting. I was there with many of my colleagues. It was a wonderful and terrific meeting. It was extremely successful, and very much appreciated by the Prime Minister for the unreserved support he received.

On that point, I must indicate to the honourable senator a small correction with respect to the substance of the issue he raised. I agree with him that the situation in Palestine is fundamentally different from the situation in Quebec. He has indicated that and I support that judgment. We are committed as a country to encourage both the Israeli and the Palestinian authorities to continue their negotiations to arrive at a successful conclusion.

The international community stands firmly on that position and we want to do everything we can to support it. From time to time, there are discouraging aspects to those negotiations, but we must remain optimistic and encourage the parties to continue working toward an overall peace agreement to allow for both those peoples to live in harmony, one with the other.

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I do not know whether it is useful or helpful in that context to speculate heavily on that hypothetical situation. I will refrain from doing that to any extent, with some concern that we do not wish to say anything here that would harm the progress of the negotiations.

Hon. John Lynch-Staunton (Leader of the Opposition): It is done. You do not want to repeat it, is what you are saying. Once is bad enough.

Hon. A. Raynell Andreychuk: Honourable senators, if it is the case that we do not want to say anything, why did the Prime Minister say something?

Senator Lynch-Staunton: He believes in clarity.

Senator Boudreau: Honourable senators, I think the Prime Minister was expressing his personal feelings with respect to the future of the Palestinian people in their homeland. That is a position we probably all support.

As to precisely why the Prime Minister made a particular statement at a particular time, I trust there will be people who will ask him that question when he returns.

Senator Andreychuk: Honourable senators, the Leader of the Government in the Senate is saying that the people of Canada would support the statement made by the Prime Minister. My understanding, from a foreign policy point of view, is that the Canadian people support the peace process and that this was the government's position until the Prime Minister intervened. Are we still on the original foreign policy? If this is foreign policy by the day, by the hour, or by adhocery, then that will be devastating in the Middle East and also in Canada.

Senator Boudreau: I believe the honourable senator is quite correct. The position of our country is to encourage the peace process. That remains our position. Under the circumstances, we can only work to encourage that process and hope for its success.

Senator Andreychuk: Therefore, it was Canada's position to support the parties actually negotiating and involved in the peace process, to not do anything to disrupt the peace process, to not get involved in the peace process, and to not make statements about anything that had to do with the content of the peace process. Why did the Prime Minister, therefore, in that context, make that statement? He was there, not as a private citizen, but as the Prime Minister of Canada.

Senator Boudreau: Honourable senators, our position as a country has not changed. I believe our Prime Minister has not in any way interfered with the peace process. In fact, he continues to state that Canada actively encourages them to continue the peace process, and we firmly and fervently wish for its success.

Senator Andreychuk: Honourable senators, I take that to mean that the Prime Minister made a mistake.

Senator Boudreau: I do not wish to speculate on what might happen in other circumstances if, in fact, the peace process is not successful, or depending on some of the outcomes. I will not speculate on that since it is not helpful to the peace process itself. I can only reassure the honourable senator that Canada's position today is unchanged from what it was yesterday or last month. We continue to hope for the successful conclusion of that peace process.

Senator Andreychuk: The answer of the Leader of the Government in the Senate leads me to believe that there continues to be the same problem that has existed in the government for some time. In other words, there is a foreign policy as enunciated by the Minister of Foreign Affairs and then there are the actions of the Prime Minister. When will those two come together in a coherent foreign policy?

Senator Boudreau: Honourable senators, the Prime Minister's position is identical to the position of Canada and the Foreign Affairs Minister; that is, that we encourage the peace process without reservation, we hope for its successful conclusion, and we will do anything we can to assist with that process. That is the policy of Canada at the moment, and I am confident in saying that that is the position of the Prime Minister.

Hon. Lowell Murray: Honourable senators, on the basis of the Prime Minister's statement, is it the position of the government that Canada would recognize a unilateral declaration of independence by the Palestinian Authority? Yes or no?

Senator Boudreau: Honourable senators, as I said in answer to an earlier question, it is not particularly helpful to speculate on hypothetical situations. We have a particular set of circumstances before us now. The parties are engaged in this process, and it is one in which we sincerely wish to be successful.

Israel—Deployment of Neutron Anti-tank Mines— Possibility of Representations by Prime Minister During Visit

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I have a question relating to the Prime Minister's visit to the Middle East.

Senator Kinsella: Bring him home.

Senator Lynch-Staunton: Today, I understand he was visiting our troops in the Golan Heights. Canada has been there now for 25 years — at last count with 189 peacekeepers. I hope that the Prime Minister was made aware of a most disturbing story in The London Times on March 26, which reports that Israel has a plan called "David's Sling," which is to deploy neutron anti-tank mines near the Golan Heights where Canada's peacekeepers stand watch. Was the Prime Minister made aware of this story, which comes from an authoritative newspaper? If so, has the Prime Minister addressed the issue with Israel during his discussions over there?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I must indicate to my honourable friend that I cannot respond to that question. I do not know whether the Prime Minister was made aware of that particular story or whether he was aware of that situation in advance of the story, if, in fact, that situation is correct. I can only give the honourable senator a very incomplete answer at this stage, but I will direct his question to the Prime Minister's Office. No doubt, he will give it his attention upon his return.

Senator Lynch-Staunton: Honourable senators, I think the Prime Minister will have many other things to attend to upon his return. I was hoping the Leader of Government in the Senate could find the answer and give it to us as soon as possible. Hopefully, the story will be false.

As we know, Israel has never denied or admitted that it is a nuclear power. Israel certainly has nuclear weapons. First, should Canadian peacekeepers be there to sit on land where there may be nuclear anti-tank mines buried; and, second, are these nuclear anti-tank mines covered by the anti-personnel land mine treaty that Canada promoted so heavily?

Senator Boudreau: Honourable senators, I can appreciate Senator Lynch-Staunton's wish to have the information as quickly as possible. Perhaps I can direct the question to the Minister of Foreign Affairs in the absence of the Prime Minister and include specifically those issues the honourable senator raises.

I must comment and repeat what is an obvious fact; that is, that our peacekeepers have put themselves in harm's way in many areas in the world and have served remarkably under those circumstances. However, I can appreciate that the honourable senator raises an issue that he suggests might take this circumstance out of the ordinary. I will attempt to obtain that information for him as quickly as possible.

[Translation]

Solicitor General

Auditor General's Report on Royal Canadian Mounted Police Screening Process of Forensic Services and DNA Testing

Hon. Pierre Claude Nolin: Honourable senators, this morning the Auditor General of Canada tabled a report. Chapter 7 of this report concerns the Royal Canadian Mounted Police and the services available to those responsible for enforcing the law.

Honourable senators will recall that we examined Bill C-3 a year and a half ago. We passed this bill after lengthy examination of it by the Standing Senate Committee on Legal and Constitutional Affairs.

The bill provided for the creation of a system for collecting DNA samples and the establishment of a DNA data bank. When the bill was being examined, we heard from witnesses, including some from the RCMP, who spoke at length of their plans to set up laboratories in Canada that would analyse this DNA.

The Auditor General's report presents quite a different reality from that offered by the authorities from the RCMP. I am not talking only of the minister, but also of the experts who came to testify before our committee and who convinced us of the need for this measure. We are still convinced of it. Now there is a problem of time.

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Witnesses from the RCMP appeared before our committee and told us that 30 days were required to do DNA analyses. This morning, we learn that, in the Ottawa laboratory, it takes 100 days and, in the Vancouver laboratory, 171 days. A murder investigation last year cost $1.3 million, because the RCMP took so long to present its report. I am sure that the minister's assistants have already informed him of the various aspects of the Auditor General's report. What are we to do about it?

[English]

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I have had a brief opportunity to view the Auditor General's comments as the document was just tabled today. The honourable senator will appreciate that I have not had an opportunity to read it in any great detail but I have had a briefing on it, specifically in the area of his concerns.

Honourable senators should understand that the Auditor General was focusing on certain services delivered nationally by the RCMP, not on policing issues. The honourable senator referred to the laboratory and forensic service offered across the country by the RCMP, and specifically to DNA testing, which involves a two-stage screening process, the initial stage and the final work-up.

If my numbers are correct — and I qualify my answer by saying this is from memory of a very limited review — the Auditor General found that for completion of the DNA testing, the initial screening took up to 83 days and the final screening took up to 183 days.

I sought more recent information and I will get the answers specifically for the honourable senator. However, it is my understanding that those circumstances have changed dramatically since the Auditor General did his investigation. Currently, the preliminary screening, which had taken 83 days, now takes, I believe, five days. The final screening, which had taken 183 days, now takes 30 days. Therefore, the concerns have been quite dramatically addressed.

I am giving this information from memory. I ask the senators' indulgence if any of the numbers are not accurately presented.

Senator Nolin: When the Leader of the Government talks to his colleague the Solicitor General, the Honourable Lawrence MacAulay, later this afternoon, would he tell him the following: Bill C-3, the DNA indentification bill, was considered a year and a half ago. Bill C-10, which amended the Criminal Code with regard to DNA indentification, was considered a few months ago. The same witnesses appeared in front of the committee on both bills. The Auditor General ended his inquiry in September 1999. We heard those witnesses in January of this year. They maintained the 30-day period, knowing that in reality it was six months. We need reassurance that what was said in front of the committee is the truth. The system will be fully operational in June of this year when the bill comes into effect.

How does the minister reconcile six months with one month? The same witnesses who appeared before us a year and a half ago appeared before us two months ago. Who is lying?

Senator Boudreau: The most current information I have from the Solicitor General with respect to DNA testing is that all cases are now assigned a priority. The initial screening is completed in an average of five days, compared to an average of 82 days at the time of the Auditor General's findings. All priority-one cases, for example, a murder case would be a priority-one case, will be completed within 30 days, compared to an average of 183 days at the time of the Auditor General's findings.

The honourable senator indicated that witnesses who appeared before the committee had indicated that, in their view, up to that point, the old numbers were still the accurate numbers. I will certainly speak to the Solicitor General, but the most current information I have has been provided to this chamber. That would seem to contradict the proposition that substantial progress has been made in addressing these problems.

Senator Nolin: Honourable senators, we were never informed of a delay of half a year. The witnesses always indicated that it was 30 days. What the minister received from Mr. MacAulay is what we have — two months ago it was a year and a half and 30 days. When they appeared before the Senate committee, were they telling us what they wanted to achieve or what the reality is?

We are talking about the possibility of freedom for certain individuals, and we understood the importance of following procedure. An individual can be linked to a crime, so it is very serious. The witnesses never talked to us about half a year. Is it a problem of resources or securing the technology? We were never told. They also maintained, "We even receive foreign visitors who observe our system in order to copy it."

We have a problem, which is why I am asking these questions. Is it half a year? The Solicitor General is indicating 30 days. That is exactly the information we were given when ministers, officials, and experts from the RCMP appeared before the committee.

Senator Boudreau: Honourable senators, I will forward the issue as a concern raised by the honourable senator. While the current information I relayed to the Senate today is the identical information a Senate committee received some time ago, at least one senator has a tinge of scepticism and wants confirmation that the numbers I have given are the numbers being achieved today.

I will undertake to frame that question in the terms I have described, relay it to the minister, and bring back a response.

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ORDERS OF THE DAY

Business of the Senate

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I should like leave to make a comment at this point on house business.

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

Hon. Senators: Agreed.

Senator Kinsella: He does not need leave.

Senator Hays: With or without leave, I should like to comment on house business.

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Honourable senators, pursuant to the rules, and in the interest of orderly process in this place, I confirm that Senator Kinsella, the Deputy Leader of the Opposition, and I have been in discussion on how to dispose of the first order of business on our Order Paper; namely, Bill C-9, to give effect to the Nisga'a Final Agreement.

We have agreed, on behalf of the government and the official opposition, that all votes on the bill or amendments thereto will be taken at 3:30 in the afternoon on Thursday of this week.

I thank my counterpart for his cooperation in reaching this agreement. It is very much appreciated.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I confirm what the Deputy Leader of the Government in the Senate has just said. I wish to advise that, pursuant to rule 38:

At any time when the Senate is sitting, the Leader of the Government in the Senate or the Deputy Leader of the Government in the Senate may state from his or her place in the Senate, that there is an agreement among the representatives of the parties in the Senate...

That is the agreement to which Senator Hays has alluded and to which we are party.

The Hon. the Speaker: Honourable senators, I believe that pursuant to the rules there should be a motion to that effect. The difficulty in which I find myself is that there are independent senators who may not be in accord with this agreement reached between the two parties.

Senator Hays: Honourable senators, as I have indicated, this is not a house order but rather an agreement between the government side and the opposition side. I appreciate that that does not include independent senators.

Referrence has been made to rule 38. I would be happy to move a motion to that effect once I have the text. With leave, I shall move such a motion later today.

The Hon. the Speaker: Is there leave, honourable senators, for such a motion to be moved later this day?

Some Hon. Senators: Agreed.

Senator Kinsella: Honourable senators, rule 38 is discretionary. It says that the Deputy Leader may propose a motion. In the alternative, as we have reached an agreement and are so advising the house, it would be a house order.

Hon. Anne C. Cools: No, absolutely not. Honourable senators, I am very pleased that the deputy leaders have arrived at an agreement, and that they are being sensitive and inclusive in informing us of such. However, that agreement must move from a private agreement between the two of them into a formal order of this chamber that is binding upon all of us.

A motion is necessary and Senator Hays has the full support of all here to move such a motion later this day.

Hon. Edward M. Lawson: Honourable senators, the two sides have again made a deal with no regard for the independent senators, as if they are non-persons here. This kind of deal is like wife swapping with a bachelor. What is in it for the independents?

Senator Hays: Honourable senators, I am sensitive to the point raised by Senator Lawson. I would have liked to have discussed this matter with independent senators, had there been time. However, as the agreement was reached only a few minutes before the sitting today, there was no time to do so. That is the principal reason independent senators were not informed of the discussion and the conclusion thereto.

The Hon. the Speaker: Is it agreed, honourable senators, that we will revert later this day for the purpose of a motion?

Hon. Senators: Agreed.

Nisga'a Final Agreement Bill

Third Reading—Motion in Amendment—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Austin, P.C., seconded by the Honourable Senator Gill, for the third reading of Bill C-9, to give effect to the Nisga'a Final Agreement;

And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Andreychuk, that the Bill be not now read a third time, but that it be read a third time this day six months hence.

Hon. Ione Christensen: Honourable senators, before I begin my remarks on Bill C-9, I should like to comment on Senator Lawson's remark that the agreement reached between the Deputy Leader of the Government and the Deputy Leader of the Opposition is like wife swapping. That is a very sexist comment. I do not believe that members of my gender would find that a desirable thing to do.

Senator Taylor: How about "spouse swapping"?

Senator Christensen: We would not be interested in that either.

Honourable senators, I wish to add my voice to the debate on Bill C-9, the bill to give effect to the Nisga'a Final Agreement. It has been demonstrated by many of my honourable colleagues that this is a complicated, contentious, and some would argue, divisive bill. I have listened to the intricacies of constitutional arguments, both in this place and at the committee hearings. Learned persons with many years of experience in teaching and applying constitutional matters have given us conflicting arguments. Asking for yet another constitutional opinion through a ruling from the Supreme Court, as suggested, would not, in my view, be appropriate at this time. It may very well be a course of action taken in the future, but that should only happen after this bill is put into force and if, through application, it is proven that a legal finding is required.

There have been a number of treaties signed which have far greater impact on both lands and the political scene than the Nisga'a agreement. Each is different, and each future claim will be different, depending on the existing circumstances and on what is required for self-sufficiency of a particular band.

The Yukon Umbrella Final Agreement was different. That agreement provided a framework for 14 Yukon bands to negotiate and ratify their own treaties to meet their own needs. All of these treaties in the Yukon include the right to set criteria for citizenship under the enrolment commission. All these bands are recognized as a new level of government in the Yukon, with the right to participate in the development of all of the Yukon through boards, committees, and government-to-government negotiations.

In meeting Canada's fiduciary obligations to First Nations, two avenues can be followed: negotiation or litigation. Negotiation is by far the most favourable option. Through litigation, the courts must follow the law, and it has been clearly demonstrated through numerous cases cited in this place and throughout the hearings in committee that aboriginal rights to lands, resources, culture, and language are recognized.

The elected governments of all parties negotiate to reach settlements that fairly represent all parties, while at the same time allowing First Nations to take control of their own destiny by controlling the resources that will support their development. Litigation imposes legally binding solutions with no ability for public or political input. Such litigation is far more costly, both fiscally and socially, than the negotiated option.

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We hear many argue that the costs, at both the negotiation stage and on the implementation of such treaties, are too high for the taxpayer to bear. The cost of litigation or a continuance under the Indian Act would be equally as high, if not higher. To continue under the Indian Act would mean an open-ended flow of funding with no ability for First Nations to become self-sufficient, nor to share in contributing as taxpayers. Through negotiated settlements, First Nations could achieve both and take their place with pride of self-worth.

There are those who feel that a referendum is a requirement before ratifying such a treaty. I strongly disagree. One cannot use a referendum when one is dealing with minority rights. It is not democratic. The Nisga'a agreement is subject to the Charter of Rights and Freedoms in all respects, thereby protecting the rights of all persons covered by that agreement, as pointed out so eloquently by Senator Chalifoux in her address regarding First Nation women's and property rights.

Of all the issues, the one that has given us the most concern is the matter of unresolved land overlaps between adjoining First Nations. This is not a new problem in land claim negotiations. In James Bay, Nunavut, the Northwest Territories, and the Yukon land claims, overlaps were, and continue to be, a problem with all parties. They are dealing with that issue in their own ways. In talking with some of the Yukon First Nation leaders, they say that this matter is one which they, and only they, can settle between themselves and that third parties, such as the territorial, provincial or federal governments, should not be a part of it.

Honourable senators, this is a difficult issue. Lines on maps are not the traditional way by which boundaries were delineated. The traditional way was to define boundaries by the different uses during different times of the year, and the shared use of the land. Individual ownership was a foreign concept. By using European laws, First Nations are trying to prove historic use and to fit that into a clearly defined map. It is problematic.

The Nisga'a agreement states that changes can be made, and where they are made, the Nisga'a will be compensated. Other bands that are also negotiating could have similar provisions. Their rights would be recognized where they can prove ownership. If they lose some of these rights, then they, too, would be compensated, if that were part of the provisions of the negotiated agreements with governments.

We cannot, here in this chamber, renegotiate that issue. However, we can make, and are making, recommendations regarding the handling of overlaps in future claims. Delaying this treaty would not solve the overlap issue. It is only after this bill is passed that further negotiation and, if necessary and only as a final resort, litigation can take place.

Have we got it right, honourable senators? How will history judge Bill C-9? Fifty years from now, will it have stood the test of time? By looking back over the past 100 years, we know that the paternalistic approach towards the First Nations under the Indian Act did not work. Yet, at that time, given those social norms, what was done seemed to be the right way to go. It was not done maliciously. It was full of good intentions. One could even ask that if it had not been done, if the interests of First Nations had not been addressed, however wrongly, where would the First Nations be today?

Through modern treaties, such as the Nisga'a Final Agreement, rights and responsibilities are being recognized for First Nations in order that they may be masters of their own destiny. Will it be a resounding success? Not necessarily. Will it be a better approach than that taken in the past? Most definitely.

Can we create a perfect piece of legislation by delaying and amending Bill C-9? I would suggest not. With its imperfections, which are inherent in any negotiated agreement, I am willing to support Bill C-9, knowing that it is an evolving process and that changes could be made.

Honourable senators, we are working to help Canadians define their future, Canadians who have not had that opportunity in the past. We must show our trust in their ability to manage their affairs. We are not creating new communities or new people through this piece of legislation. These people have been here all along and have been receiving funding to support their communities and their people. New funding will not necessarily be needed. It will be merely a reallocation of funding that has been ongoing and would have been ongoing. Resources are not being taken away. They are still there to develop and to enrich our land.

Bill C-9 and similar treaties are offering the opportunity for First Nation Canadians to be full and equal partners in Canada for the first time.

Honourable senators, I wish to bring to your attention a matter that has recently — in fact, yesterday — arisen. It concerns Bill C-9.

Some honourable senators may be aware that a court action was recently started by four members of one Nisga'a community to prevent Bill C-9 from being passed. These plaintiffs charged improprieties of process during the ratification of the Nisga'a treaty in the public process held in the fall of 1998, during which over 60 per cent of the Nisga'a people voted approval of that treaty. What is significant is that the British Columbia Supreme Court, on April 5 of 1999, dismissed an application for an interim injunction to prevent Canada and British Columbia from passing Bill C-9. Yesterday, on April 10, 2000, the B.C. Court of Appeal also refused to grant an interim injunction, and it dismissed the appeal.

I am told that the B.C. Supreme Court has repeated its earlier view that the courts should be reluctant to interfere with the legislative process. As the court has previously said, the entire legislative record, which would include the debates of this chamber, is relevant to the constitutional challenge to the Nisga'a treaty.

Honourable senators, we should carry out our responsibilities to complete our legislative function in this case. The plaintiffs would then have the opportunity to proceed with their court challenge in the future.

Hon. Gerry St. Germain: Honourable senators, I should like to ask several questions of Senator Christensen, if I may. I listened carefully and wish to compliment her on her speech.

The honourable senator noted that a negotiation is the most favourable way to proceed and that litigation is too costly. Senator Christensen was in committee with us and did an excellent job. She heard the presentations made by the Gitanyow and the Gitxsan when they stated that they would be forced into this costly litigation. When the minister was asked if he would commit funds for that litigation, he would make no commitment. Where will these poor people get the money for litigation?

Further, the minister never said that he would not enter into immediate, serious negotiations. However, he also never said that he would, from what I recollect.

The honourable senator has been exposed to a considerable number of these types of negotiations and agreements in the Yukon. Does she not find it offensive that the negotiators would have granted five fee simple sites in 85 per cent of the land that is disputed by the Gitanyow as being theirs?

I concur with the remainder of my honourable friend's speech. The Nisga'a should have an agreement and they deserve an agreement. We must move forward with these things. However, I and several people with whom I have spoken consider this overlap situation to be a total affront.

Actually, there are six fee simple sites. One is in the area disputed by the Gitxsan and the five others are in the disputed area of the Gitanyow. All are in the management area, not on the core lands. Does the honourable senator not find it offensive that the negotiators would grant these fee simple sites and rub them into the face of the Gitanyow?

Senator Christensen: Honourable senators, I was not at the negotiating table. I do not know what was negotiated, what was given away, and what proof was provided for those fee simple sites. Therefore, I cannot comment on whether it was fair.

However, as I have stated, the overlap issues have given us concern. It is my view that the Nisga'a Final Agreement has provided leeway for the possibility of making necessary changes to the boundaries in the Nisga'a agreement through sections 33, 34 and 35.

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Senator St. Germain: Honourable senators, I agree with that. We have heard that their only recourse is through litigation, which was the subject matter of my first question. I know that there are supposed to be remedies within these sections. The Gitanyow and the Gitxsan, however, find no comfort in this. They will be forced into costly litigation; yet, they will not be funded to carry it out. How will they accomplish this? This is a case of negotiators treading on and beating down the minority rights of a small group of aboriginal people.

Senator Christensen: Honourable senators, it is my feeling that under sections 33, 34 and 35 the door on negotiations is still open. I met with the Gitanyow, who felt that that was the case. They also felt that it should be reinforced in some way so that it is clear to the Nisga'a.

Certainly, the Nisga'a have negotiated very successfully with two other bands on their borders. From what I have heard, I feel there is a very good possibility that they can still negotiate. Litigation is always the final step. However, I think other avenues are still open to them.

The Hon. the Speaker pro tempore: Honourable senators, Senator Christensen's 15 minutes has expired.

Hon. A. Raynell Andreychuk: Honourable senators, I wish to ask a question of the Honourable Senator Christensen.

The Hon. the Speaker pro tempore: Is leave granted, honourable senators, to extend the speaking time of the Honourable Senator Christensen?

Hon. Senators: Agreed.

Senator Andreychuk: The honourable senator quite rightly said that the British Columbia court has said that they will not intervene to make any decisions until this legislation has been passed. I think, perhaps, one of the reasons for doing that was so that they would not be seen to be taking sides, because the applications are being brought by "interested parties."

Does the honourable senator not agree that there is a very fundamental issue here, which was brought to us by the lawyers, namely, the issue of governance within our Constitution? Does the honourable senator not agree, therefore, that a reference to the Supreme Court of Canada is a different issue from the one in the British Columbia courts?

Senator Christensen: Honourable senators, I thank the honourable senator for her question. The honourable senator's question is certainly one that I anticipated being asked. Unfortunately, I have lost my notes on that particular question. My ability in my advanced age to retain a lot of this information is not as good as it once was. I am not a legal-minded person.

I am satisfied that under section 35 of the Constitution there is not a constitutional issue here. In Yukon, authority was delegated as opposed to its being entrenched, as it will be with the Nisga'a. Going the delegated route gives a paternal effect. It leaves it wide open. We have been doing this through the Indian Act for years. Entrenchment, as has been implied with the Nisga'a agreement, gives that certainty which is the ability for the Nisga'a to do it. There are provisions to make changes, if it is proven necessary. That, however, does not concern me.

Hon. John Buchanan: Honourable senators, I will not get involved in the discussion of the substance of the agreement or the bill. I am fundamentally opposed to this bill for one specific reason, that reason being that this bill is not constitutionally organized. It is a bad bill as far as the Constitution is concerned.

Any bill going through the House of Commons, the Senate or any legislature in this country — and this includes the Nisga'a bill — must be set up under the existing Constitution, which, as all of us know, is the foundation on which our country was built. I refer to the Constitution as amended in 1982 and 1983. If the agreement, and now this bill, does not conform to the Constitution, then it should not go through the Senate. It is as simple as that. It should be fixed before is it is passed by the Senate. It should have been fixed before it passed the House of Commons.

This bill purports to make some of the powers of a province concurrent with the powers of this third level of government, self-government. The only way that that can happen is if the Constitution of Canada were amended to allow the transfer of powers under sections 91 and 92 to a third level of government. That did not happen. There was no such constitutional conference at which that occurred.

It is my opinion that we not only respect but we must abide by the Constitution of Canada in whatever we do in this place. If we do not do that, then we are inviting anarchy into our system.

I am not saying that the agreement, or the "deal", as it has been called by many, is a bad deal or a good deal. I am not commenting at all on its substance.

Honourable senators, why would we in the Senate pass a bill that we know is not constitutionally valid and that will be challenged in the courts, where, some honourable senators say, it will probably be successful? We certainly are not serving the aboriginal peoples involved in this agreement, nor the people of British Columbia and of Canada, by passing something that is not constitutional, just for the sake of hurriedly passing it. For whatever reason, the government wants to do it. Later on, if it is challenged — and we know it will be — it might be successful.

Is this a constitutional bill? In order to answer that question, honourable senators, we must look back to the conferences at which the Constitution was amended. In other words, we have to look back to the late 1970s and the early 1980s. In 1982, was an intention expressed to amend the Constitution of Canada to set up a third level of government, that is, an intention to set up self-government for aboriginals? Honourable senators will look at that and say, "In 1982, were sections 91 and 92 changed to allow the setting up of a third level of government — that is, self-government?" After 1982 and 1983, the Constitution of Canada was intact. It is still intact today, just as it was back in 1982 and 1983. The premiers of the day and Prime Minister Trudeau did not change the Constitution of Canada to allow for the setting up of a third level of government or self-government for aboriginals.

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The 1982 constitutional accord did not in any way set up such a self-government or third level of government. Neither did the conferences of 1977, 1978, 1980, 1981, 1982 or 1983 do any such thing.

If, as some are saying, a third level of government was permitted by the accord of 1982, why is it, then, that at that same conference and in subsequent conferences the premiers of the day and the prime ministers of the day set up conferences in the future to discuss that very item, self-government for aboriginals? Why would that be done if it had already been achieved in 1982? These conferences were set up to discuss that very thing — that is, whether we would have self-government for aboriginals in this country, a third level of government.

If, as some say, it had been done in 1982, why would we waste our time in determining whether we would or would not do so in the future?

There are some who say that, in Canada, there is already a third level of government in all the provinces; it is called municipal government. We as legislators know that that is not true. Municipal government is not a third level of government under the Constitution of Canada. It never was. Municipal governments are simply creatures of the provincial legislatures. We set them up, and we can tear them down. We can change them, we can amend them, and we can destroy them. As the Leader of the Government in the Senate knows, we did that in Nova Scotia on many occasions. We amended municipal acts to change what they had been delegated, not transferred. These were delegated authorities that were taken away from them.

There is no such thing in Canada, in 1982 or in 1999 or in the year 2000, as a third level of government. In order for there to be a third level of government, you would have to be able to point to some document in which it was agreed to and where it was finalized in constitutional form. It was not done in 1982. Was it done after 1982? The only way it could have been achieved after 1982 was by agreement of the provinces and the federal government, ratified by every provincial legislature — or maybe by seven, under the 7-50 rule. That did not occur. It did not occur in any of the legislatures of Canada, nor did it occur in the House of Commons. There are honourable senators here who were in the House of Commons through the 1980s and 1990s. They will know it did not occur. There was no such resolution, through all of the 1980s or the 1990s. Certainly, there was no such resolution in the provincial legislatures.

Where, then, do we get the idea that we in the Senate can pass a bill that is unconstitutional? We cannot do it. There was never any such agreement in any of the federal-provincial conferences that were chaired by Prime Minister Trudeau, by Prime Minister Clark, by Prime Minister Trudeau again, or by Prime Minister Mulroney. Never did it happen. Therefore, we are abdicating totally our responsibilities as legislators if we pass something that we know is not constitutional.

Was it ever discussed, honourable senators? Yes, it certainly was discussed. From the late 1970s through the 1980s, at aboriginal conferences that were set up by provincial governments and by the prime ministers of the day to discuss such things as self-government, it was discussed — but that is all. There was never any agreement to set it up. I challenge you to point to any document that set up a third level of government. It did not occur at any time.

You may ask how I know this. I was there. I just heard the Leader of the Government in the Senate say he was at a meeting where something happened. I did not get his train of thought, but I heard him say, "I was there." I am telling you, I was there, at every one of those conferences, from 1977 right up to the Meech Lake Accord of 1990. I checked with some of the premiers who were there. I checked my notes, which are archived in Nova Scotia, but I kept copies. I checked newspaper accounts. I said, "Buchanan, are you a little bit fuzzy in the head? They are telling you that that level of government was set up in 1982." Yet, I was there. There was no such thing done. It did not happen.

I can recall the premiers who were at the conferences: Bill Bennett, Peter Lougheed, Sterling Lyon, Bill Davis, Grant Devine. I spoke to Grant Devine the other day, and asked him, "Do you remember when we set up the third level of government, self-government?" He said, "We never did." I said, "That is good, Grant. You were there." It never happened. Premier Hatfield? I could not call him unfortunately. I know what he would say, though. Premier Peckford? Premiers Lee or MacLean? Both were there, Premier MacLean at the first and then Premier Lee at the other. I never missed one, from 1977 right through 1990.

I see members of this house who were sitting behind the prime minister back in the early 1980s. Do you know another gentleman who was sitting in back of the prime minister of the day? The present Prime Minister, Jean Chrétien. He was there. Is he saying that his prime minister of the day, Prime Minister Trudeau, agreed to set up self-government for aboriginals, a third level of government, and then turned around and decided, "Well, look, gentlemen, let us set up future conferences to discuss self-government"? Why would we do that? The reason? Because we had never set it up in the first place.

Honourable senators, constitutional lawyers will agree that, when a court is interpreting statutes, if there is any concern on the court's part, the court goes back and looks at the intention of the legislators in passing the legislation. A court looking at this bill, if it is passed and challenged, which it will be, will take a look at what was discussed by 10 premiers and a prime minister. I can guarantee that you will not find any intention on the part of any of those premiers, nor the prime minister, to set up a third level of government in 1982 or 1983, nor in subsequent conferences.I can guarantee that because I was there. You can check with any of the premiers you want and they will tell you the same thing.

I simply say, let us be very sensible here. I do not want to get involved in the substance, as I have said. It may be a great deal, but let us not start passing legislation through this Senate just for the sake of getting it through, ignoring the fact that we are doing something that is not constitutional.

Therefore, I urge honourable senators not to pass the bill until we have had the opportunity to make it constitutionally pure.

Hon. Lowell Murray: Would Senator Buchanan entertain a question?

Senator Buchanan: Certainly.

Senator Murray: He will recall the three first ministers' conferences that were mandated by the 1982 Constitution. The first one was presided over by Prime Minister Trudeau in 1983. I think it is no oversimplification, although the honourable senator can correct me, to say that what Prime Minister Trudeau proposed at that meeting was delegated authority. The final two conferences were presided over by Prime Minister Mulroney. He took the position that the federal government was willing to go beyond delegated authority. Powers would be negotiated which would be attributed to aboriginal governments by way of a constitutional amendment.

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At the second of three conferences, my friend also attended and they came very close to reaching agreement but did not.

I was involved in the third conference, in the negotiation with the provinces and the aboriginal organizations. There, again, we got to the first ministers' level and it failed, not only because we could not get enough provinces on board for a constitutional amendment, but also because there was some division, as there had been in the second conference, among the four aboriginal organizations themselves. My friend will recall that.

The point is that there was no question about what we were discussing. We were talking about a constitutional amendment to define and identify the rights referenced in section 35.

In the Charlottetown accord, the federal government took another step, which has been referred to in this debate. This was a recognition of the inherent right of the aboriginal peoples to self-government. Even there, as I recall the provisions of the Charlottetown accord — and again I do not have it in front of me — the provinces, the federal government and the aboriginals were to meet to work out the powers, and if they failed to do so, the issue would be turned over to the Supreme Court of Canada to define it for them. I think that was the nub of the Charlottetown Agreement, as I recall it.

All that being said, I do have a question for the honourable senator. As I said the other night, Senator Austin, Senator Joyal and I were all there the night section 35 was agreed to at the joint Senate-House of Commons committee. What does he make of section 35(3), where it says:

For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

The same phrase is found, as my honourable friend knows, in section 25 of the Charter where it refers to the guarantee. It says that aboriginal rights and freedoms are not affected by the Charter in the sense that the Charter cannot abrogate them. That includes the Royal Proclamation of 1763 and "any rights or freedoms that now exist by way of land claims agreements or may be so acquired."

I am not sure whether the proponents of this bill are resting their case on the phrase "or may be so acquired" and are claiming that the self-government provisions in the land claims agreement or treaty, as it is, are covered by section 35. What does my friend make of that?

The Hon. the Speaker: Before I entertain any further questions, the time for Honourable Senator Buchanan's speech has expired. Is leave granted for the honourable senator to continue?

Hon. Senators: Agreed.

Senator Buchanan: First, what the Honourable Senator Murray has said about the conferences after 1982 is absolutely right. As I said in my comments, we had already agreed to set up further constitutional conferences on aboriginal self-government. We agreed to do that after 1982.

Why would we ever agree after 1982 and 1983 to set up conferences? Senator Beaudoin was there as an expert. Why would we agree to set them up if we had already set up a third level of government? It is inconceivable. It never happened because we had never set it up. Again, section 35 reads:

For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

It says land claims which "may be so acquired" and nothing else. Anyone reading that can realize it has nothing to do with self-government nor the setting up of a third level of government. If it did, why did we later on have further conferences to discuss the very thing that some claim had been set up? It just did not happen.

If we were to call each of the premiers involved through all the 1980s and the three prime ministers who were involved, they would tell us the same thing. There was never any intention nor was there any amendment to the Constitution of Canada to set up self-government for aboriginals.

I am not saying I am opposed to self-government. There were premiers who were opposed to it, as Senator Murray said. That is why we failed, in two conferences, to do what some people say we did. That is impossible. How could we have failed to do something that we had already achieved? The answer is it had never been achieved.

It is interesting that if you were present and if you have notes and if your memory is not gone completely, then there is no question. I am telling honourable senators that we did not set up a third level of government nor self-government in 1978, 1980, 1981, 1982, 1983, 1985, 1986, 1987 nor 1990.

Senator Chalifoux: What about in 1995?

Senator Buchanan: Nor in 1995. If my honourable friend can show me where we did it, I will apologize to her.

Senator Chalifoux: It is right here.

Senator Buchanan: Is that right? Read it to me because I was there in 1995.

The Hon. the Speaker: Honourable senators —

Senator Buchanan: If she has the proof, I should like to see it.

Senator Taylor: Sit down and we will read it to you.

Senator St. Germain: Table it.

The Hon. the Speaker: Does that complete the speech by Honourable Senator Buchanan and further questioning?

Senator St. Germain: She wants to table something.

The Hon. the Speaker: Honourable senators, Senator Chalifoux has already spoken on this matter, but she can ask a question.

Senator Lynch-Staunton: She can comment. Make a comment.

Hon. Thelma J. Chalifoux: Honourable senators, I should like to ask a question.

Senator DeWare: Make a comment.

The Hon. the Speaker: Honourable senators, it is quite proper to have the last person answer a question, but it is not proper for the last speaker to ask anyone else in the chamber a question. Otherwise, there will be no order in our discussions.

Senator Chalifoux: Honourable senators, is the Honourable Senator Buchanan aware that as a result of Canada's 1995 inherent rights policy, self-government arrangements may be negotiated simultaneously with land and resource issues in a comprehensive claims agreement? Negotiations under the British Columbia Treaty Commission process are an example of comprehensive claims negotiations that include a self-government component.

Senator St. Germain: That is a Liberal policy.

Senator Buchanan: I can find all kinds of statements made over the years. What the honourable senators has just read to me is not a constitutional amendment of the Constitution of Canada in 1995. If that had occurred, it would have had to be ratified by seven Canadian provinces and their legislatures, representing 50 per cent of the population of Canada, as well as the House of Commons and the Senate. I challenge the honourable senator to show me that, because I was in the legislature all that time and we did not pass any such amendment.

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Senator Chalifoux: Honourable senators, I, too, was there. I was on the other side. I was on the aboriginal side. I am not referring to a constitutional amendment; I am referring to a Government of Canada policy that was established in 1995. Are you aware of that policy?

Senator Lynch-Staunton: Does that come from the Red Book?

Senator Buchanan: I am aware of many policies of governments of Canada that were just that.

Senator Chalifoux: Yes or no?

Senator Buchanan: P-O-L-I-C-Y, policy; it does not mean a thing.

Senator Tkachuk: It means about the same as the free trade policy, or the GST.

Hon. Jack Austin: I listened with great care to what Senator Buchanan had to say, but I find it impossible to know what constitutional amendments he is speaking to. There is no constitutional amendment in Bill C-9. There is a provision that operates entirely within the Constitution and laws of Canada. That provision brings Bill C-9 under the protection of section 35, which is a part of the Constitution of Canada. There is no change to the Constitution of Canada in this legislation.

Senator Lynch-Staunton: No one said there was.

Senator Buchanan: I know there is not. That is the problem. How can you amend a constitution unless you go through the —

Senator Austin: No.

Senator Buchanan: That is what you just said. The fact of the matter is that there has never been an amendment to the Constitution of Canada to allow a third level of government in this country — unless it happened in the last five, seven or eight years. I do not think it did. Did it, Senator Beaudoin?

Senator Beaudoin: No.

Senator Buchanan: No. All through the 1970s and 1980s it never occurred. I challenge you to call all the premiers and ask them if they amended the Constitution to allow for a third level of government. They did not. The only way to have a third level of government in this country is by way of amendment, and you are saying section 35 did it?

Senator Austin: No. I am saying that in Bill C-9 there are no amendments to the Constitution, none at all.

Senator Buchanan: What Bill C-9 is doing is giving concurrency and paramountcy to another level of government in this country. If you want to change the wording to "the agreement is delegating to the Nisga'a," I will agree. "Delegating" something means that you can take it back at any time you want. If that is what you want to do, I will certainly agree, because many amendments to our municipal acts delegate authority, but then we can take it back. If that is what you want to do, then I believe there will be no disagreement here. Senator Beaudoin says yes; if he says yes, he is correct.

Senator Austin: Honourable senators, I should like to ask Senator Buchanan whether he is aware of the Supreme Court of Canada decisions in the Sparrow case and the Delgamuukw case? In these cases, the Supreme Court of Canada is saying that constitutionally protected aboriginal rights under section 35 are not absolute, that they can be infringed upon, provided the Government of Canada or Province of British Columbia justify that infringement. There is no change to the Constitution of Canada.

Senator Buchanan: I have never heard of a constitutional amendment that is agreed to by one province and the Government of Canada. It just does not happen.

An Hon. Senator: It does so. Section 25. That is how.

Senator Rompkey: That is how we changed the Newfoundland education system. You can.

Senator Buchanan: Oh, Term 17.

Senator Lynch-Staunton: It is not bilateral.

Senator Buchanan: That is right, this is not bilateral.

Are you saying that, if Bill C-9 passes, any government in this country can then set up a third level of government in its province?

Senator Beaudoin: Paramountcy.

Senator Buchanan: Paramountcy, that is right. Are you saying that? If you are, you are wrong.

Senator Robertson: That is what they are saying.

Senator Christensen: Honourable senators, I have a question for Senator Buchanan.

The honourable senator certainly made it clear that he does not condone or accept a third level of government. What would the honourable senator call the level of government of the First Nations in the Yukon and the two territories, who have their treaties negotiated and who are actually accepted as a third level of government in those territories?

Senator Buchanan: No, they are not third levels of government. They are delegated federal authorities. That is all they are.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, to Senator Buchanan, who was there and has consulted with —

Senator Taylor: That was when he was the olive bearer.

Senator Buchanan: Were you there?

Senator Kinsella: Senator Buchanan has told us that he was there, that he has consulted with a number of other first ministers who were there. He could not consult with our former colleague Richard Hatfield — God rest his soul — but I was an adviser to Richard Hatfield and I was there.

Senator Buchanan: Yes, you were. That is right.

Senator Nolin: Everyone was there.

Senator Tkachuk: We were all there.

Senator Graham: Too bad we were not all there.

Senator Kinsella: When self-government was being addressed, is it not true that most of the premiers, if not all, and the prime minister of the day did hold serious discussion and focused on the model of municipal government? That was the model that they were studying.

Senator Buchanan: I am pleased that you intervened, because you were there. That is right. I was there, too. It is interesting to note that that is exactly the model that we had been discussing.

Honourable Senator Kinsella also may recall that many of the aboriginal chiefs who were present were not very certain as to what kind of self-government they wanted to have set up. It is interesting that they were not sure of what they wanted to set up. We certainly, as premiers, were not. Why, then, do you say that we did it? It just was not done.

However, that is exactly right. We had these conferences. I have some great pictures of smoking a peace pipe with many of the aboriginal chiefs. We had very good meetings. Senator Beaudoin was there as a consultant. Many of the participants smoked a peace pipe.

Senator Lawson: But he didn't inhale!

Senator St. Germain: What kind of tobacco did you have?

Senator Andreychuk: Honourable senators, I must have been the only one who was not there at the time, and I should like to note it for the record. I would like to footnote that it was because of my age, but I guess that is not possible.

An Hon. Senator: That is a low blow.

Senator Andreychuk: I should like to ask Senator Buchanan what I hope is the most germane question to the issue before us.

As I understand the government's position, they are resting their case on legal opinions given to them, that the legislators, the honourable senator included, in 1982 contemplated the kind of structures that we have in the Nisga'a treaty, which is a First Nation dealing with the Canadian government, and that we would not be able to intrude on the exclusive powers of this First Nation unless the test of justification could be met. The test of justification would be some extreme emergency. Was that ever discussed in 1982?

Senator Buchanan: I do not recall that being discussed because I cannot recall that we ever discussed, at any of these conferences, the transfer of powers or the transfer of concurrent powers, or any such thing. We did discuss, as Senator Kinsella said, the possibility of setting up a self-government along the lines of municipal governments throughout this country, which does not mean transferring of powers or giving concurrent powers that cannot be taken back. It was simply a delegation of powers that can be taken back at any time by the legislatures. That is what we had been discussing.

There is no doubt also that there were some premiers — who shall remain nameless — who were opposed to any kind of self-government, who were also in agreement with perhaps setting up some municipal style. There were some aboriginal chiefs who were not opposed but who were uncertain as to the kind of self-government.

(1540)

If that occurred through the 1980s, then why would you say that it had been achieved in 1982 when, as Senator Murray said, there were three or four conferences after 1982? Most of the meetings were held in public, although some were in camera. I shall not divulge what we did in the in camera meetings. However, the result of those meetings is that there was no self-government set up nor a third level of government, in neither the in camera meetings nor the public meetings.

Hon. Gerald J. Comeau: Back in the 1970s, Senator Buchanan was the fisheries minister for Nova Scotia. Therefore, I would assume that as premier of the day he would have brought his fisheries expertise to the discussions on self-government.

Does the honourable senator recall on any occasion whether he would have agreed, or potentially agreed, to paramountcy over fisheries by a third level of government?

Senator Buchanan: I will correct one thing that Senator Comeau said. Senator Andreychuk talked about age. I was first elected in 1967 but I was only 15 years old at the time. I was actually Minister of Fisheries in 1968, 1969 and part of 1970. The answer to the question is no.

On motion of Senator Andreychuk, debate adjourned.

Bill to Give Effect to the Requirement for Clarity 
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Boudreau, P.C., seconded by the Honourable Senator Hays, for the second reading of Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

Hon. William M. Kelly: Honourable senators, I have listened carefully to the debate thus far on Bill C-20 and have been impressed by many of the points made. I was particularly interested in the case made by my colleague Senator Rivest. I must admit that my position on the bill has shifted somewhat upon hearing some of the arguments presented in the chamber over the past several weeks.

The way I see it, Bill C-20 cannot be considered on its own. Bill C-20 is a part of a series of past events and part of a wider strategy relating to the threat of Quebec separation. On its own, therefore, the bill may appear to be unnecessary or ill-advised, among other things. When we consider it in a wider context, I remain convinced that Bill C-20 makes sense in principle.

I am reminded in this regard of the words of Charles Dickens, attributed to Ebenezer Scrooge in A Christmas Carol:

Men's courses will foreshadow certain ends, to which, if persevered in, they must lead. But if the courses be departed from, the ends will change.

I believe that this bill became inevitable as a consequence of the referendum result in 1995, the government's decision to refer the question of the legality of unilateral secession by Quebec to the Supreme Court, the Supreme Court's decisions on that reference, and the government's announced Plan A and Plan B strategy.

Like Ebenezer Scrooge, we may wish to undo or rewrite unfortunate decisions or actions in the past, but we cannot. We cannot change the referendum result in 1995. We cannot change the decision to make a reference to the Supreme Court, nor can we change the questions posed in the reference. We cannot change the Supreme Court's decision. We cannot change the Block Québécois commitment to separation. Because of that, in my view, Bill C-20 becomes necessary.

The essence of the Supreme Court's decision was that Quebec could not unilaterally secede, but the Supreme Court went further and specified the conditions under which the federal government and other constitutional actors in Canada would have to negotiate secession in Quebec. Those conditions were "a clear majority vote on a clear question in favour of secession." The Supreme Court did not, however, opine on what constituted a majority vote or a clear question, leaving that to the constitutional actors of the day to decide.

The bill then became necessary for two reasons. First, the bill clarifies what the supporters of separation have attempted to obscure. The separatists have emphasized only part of the Supreme Court's decision, namely, that the federal government would be obliged to negotiate secession in response to a successful referendum. They try to ignore the other part, namely, that the obligation arises only in response to a clear vote and a clear question.

Second, the bill establishes that the rule of law prevails, rather than a political decision at the time, in deciding what constitutes a clear majority vote and a clear question. I believe it is wise to establish such a procedure during calm and relatively tranquil times, rather than trying to devise a procedure in an atmosphere of panic and high emotion that would inevitably result following a referendum outcome purporting to support separation.

In the debate thus far, there are three issues relating to this bill that I have found troubling. The first issue is the lack of a role for the Senate of Canada equivalent to the other place and consistent with the Senate's constitutional role.

Honourable senators, I must say that I do not consider this issue terribly serious because it is unrealistic to believe that reasonable people at committee would not amend that section of the bill. It does not make any reasonable sense when we are talking about the future of Canada.

The second issue pertains to the lack of definition in the bill as to what constitutes a clear majority. I am impressed in this regard by the case made by Senator Lynch-Staunton. On the other hand, I am also taken with the argument that it is impossible to define in advance an immutable threshold. We cannot possibly foresee all of the circumstances that would legitimately affect any threshold that may come into play at the time of a referendum.

The third issue pertains to the point made by Senator Rivest that this bill will entrench what one might call a "dialogue of the deaf" between Quebec and Ottawa pertaining to future referenda.

As I understood Senator Rivest's point, the PQ in Quebec would only hold a referendum on sovereignty association, and Ottawa would only recognize a referendum on an unambiguous question of secession. My understanding of this bill and of the Supreme Court's decision is that this bill does not foreclose referenda in Quebec on questions other than secession. All this bill establishes is a role for the Government of Canada should Quebec wish to pose or interpret a referendum question as a mandate for secession. My understanding, therefore, is that there may well be referenda in Quebec — and, for that matter, in other provinces — pertaining to constitutional change short of secession in which the federal government may participate, and the results of which it may recognize at its option. I trust this matter will be examined carefully in the committee.

In anticipation, honourable senators, of these issues being examined with care in committee, I support this bill in principle. My preference, of course, to return to the words of Ebenezer Scrooge, would be for the government to alter its course in terms of its stand on constitutional reform so that "the ends will change" and Bill C-20 will no longer be necessary.

Honourable senators, it is clear to me, and it must be to all of us, that this bill will pass at second reading. I was taught to recognize the rule by numbers in this chamber. It is not a rule I have liked much, but I have been reminded of it often enough to know that this bill will pass second reading. That should happen as soon as possible so that the very important work can start in the committee, because there is a lot of work to do.

[Translation]

(1550)

Hon. Lise Bacon: Honourable senators, as you all know, I am not known for having unclear positions or for refusing to take a stand. However, during this debate on Bill C-20 I must say that, as a former minister in the Quebec government, but first and foremost as a Quebecer, I am somewhat torn. Unfortunately, a large number of Quebecers have also been experiencing the same feeling for over a quarter of a century. Will passage of Bill C-20 eliminate that feeling of being torn? Not at all. However, we must find a reason for this legislation.

I want to express my thoughts by beginning with the easiest part, namely my certainties.

I firmly believe in a united Canada. I believe that pooling the values, ideas, resources and energies of all Canadians is the only way to maintain and improve the quality of life of our society and to expand our influence throughout the entire world.

I am also just as convinced that Quebec has the means to develop within the Canadian federation. Its language, culture, institutions and economy have, in spite of some necessary adjustments, survived, expanded and thrived.

Quebec is also an engine of evolution for all of Canada, because of its different approach to problems and its efforts to achieve a consensus and come up with innovative solutions.

Where all this falls apart for me is when I am "harrassed", asked repeatedly by the Government of Quebec to affirm again and again that I wish to remain a Canadian.

It bulldozes ahead, with no respect for our opinions. We then have no other choice but to conclude that, in order to attain its constitutional goal, the Government of Quebec is tempted to manipulate what is our fundamental right to a clear, free and democratic choice.

In my view, politicians today are unfortunately only too ready to shut their eyes to what is right. When the message does not get across, action is the only course left.

The result, Bill C-20, which is before us today, is an attempt to guarantee the integrity of any Canada-wide constitutional action taken by the federal government or the provincial governments. At the risk of annoying some, this bill is far from anti-democratic, as many leading péquistes would suggest.

By the way, this is the easy way out for people who, since the adoption of article 1 of their platform and for the 30 years their party has been in existence, still want to hear nothing of what the vast majority of Quebecers think about their attempts to make Quebec an independent country.

Despite clear answers, the PQ government is turning a deaf ear. Is that democracy? Setting aside political parties, events have also shown that the wisdom of the people and the deep attachment of Canadians and Quebecers to the values that went into building this country have made this constitutional debate a civilized one nonetheless.

We saw this with the past two referenda. The high turnout confirmed that democracy had been exercised. As for the results, Quebecers twice voted to keep constitutional ties.

Despite all the qualms about the content and the wording of the question in these two democratic exercises, the public understood that this was a yes or a no to Canada — only so much explanation is necessary. The rest is accommodation, negotiation, discussion, conciliation, a hand extended and an essential ingredient that many forgot — good faith.

At present, in the federal-provincial context familiar to us all, the forced repetition of the constitutional exercise is, for the provincial government, nothing more than a way to make us say "perhaps". It is very clear, a matter of clarity, that federalists will remain strongly attached to Canada and that sovereignists will always be motivated by the desire to turn their province into a country.

Is it possible to simply love who we are and work together to perfect this entity of Quebec in Canada? Can we stop talking to each other through legislation?

For years we have been saying the same thing. For years the constitutional debate has hampered us. For years, on both sides, we have been wasting energy coming up with ways to annoy the other. Could we come up with something else, do something else?

Despite the fact that the people of Quebec have said no twice, it seems impossible. It seems we have no choice but to come up with a legislative framework to ensure that the constitutional matter will be given the importance and rigour due it, since 27 million people will be living with the results.

At the many official presentations or in living room discussions, what seems really to be unanimously agreed upon by federalists, including me, and sovereignist-nationalists alike, is that Quebec should have all the levers it needs to enrich itself and avoid losing its recognition within Canada. We must begin working on this certainty, and I strongly hope this will happen on both sides.

If we step back a bit, at no time or place has the history of humanity been a continuum of good news and sustainable development. Our history is no different. From time immemorial, in Quebec and throughout Canada, people of various origins and cultures have lived together and tried to build a society and achieve a level of security and stability essential to progress.

Our history is therefore full of needs, desires, claims, work, battles, victories and defeats. It is also shaped by the structures put in place over the course of the years to provide this young society with a respect of the fundamental values shared by the population as a whole.

In that sense, the search for new avenues, the freedom to submit them and to discuss them in the public arena is one of the strengths of our political system. However, the constitutional debate did not yield the anticipated benefits. Quebecers no longer believe that this is the best way to improve their lot.

So, it is more than time to move on. If we do not quickly start looking after our country, it will probably become something altogether different. It could even become the fifty-third state of our neighbours south of the border, or a satellite of the four or five top nations in the world.

Enough talking. Let us pool our energies in each of our respective jurisdictions to promote things, not to constantly give ultimatums and impose restrictions, as if these were so many obstacles to convince each other that it is impossible to live together.

All Canadians, including Quebecers, want health services that reflect Canadian reality. All Canadians, including Quebecers, want stable and adequately paid jobs to meet the needs of their families and to feel good about themselves. All Canadians, including Quebecers, are concerned about young people, about their education and their future.

Are we really that different? Are we just one of the essential colours of a rainbow that goes from the Atlantic to the Pacific? Both sides must stop wasting energy for the sole purpose of finding out what distinguishes the regions of Canada. We will always achieve more through mutual respect and cooperation.

The federal government, in introducing Bill C-20, wanted to set the rules of the game, so that the rights of every Canadian are respected. That is a laudable goal and I will vote in favour of Bill C-20, in the full realization that we were forced by the Parti Québécois government to bring back the constitutional issue and to set benchmarks to make sure the will of Quebecers is properly interpreted.

As politicians and representatives of the public's will, we must realize that the constitutional game is a thing of the past. Canadians and Quebecers, as shown by the poll released on Sunday, are no longer interested in that game. They are asking us, who have the mandate of providing a framework and of making their daily lives easier, to start dealing with the issues that really concern them.

Let us put an end to that game now that Bill C-20 has clarified the rules. Instead, let us turn our attention to what brings Canadians together, to the political actions that will allow each community to positively influence the development of the other.

(1600)

Let us stop seeking constantly for what divides us and let us, for once, be idealistic and believe that francophones, anglophones, First Nations, all those who have been part of our history in modern times, with the support of all those who have opted to become Canadians, by choice or by obligation, are capable of building a society together.

Let us now take time to define the new Canadian society that will bring people together around fully and freely shared values.

If there are now people who are truly willing to get involved, it is high time, and more than high time, because before long it will be outsiders who will be imposing the rules upon us. Then it will be too late.

Hon. Lowell Murray: Honourable senators, in Senator Bacon's excellent speech, on which I congratulate her, she has referred to certain things that divide Quebecers. She is not unaware that Bill C-20 has aroused mixed feelings among her ex-colleagues in the Government of Quebec. Gil Rémillard appeared before the House of Commons committee to express his support for the bill. Her former leader, Claude Ryan, is opposed to it, however, as is Jean Charest, the leader of the federalists in Quebec.

Does she consider that this bill is liable to reinforce or to divide the federalist cause and the federalist forces in Quebec?

Senator Bacon: Honourable senators, this bill was necessary to clarify the situation. It is necessary now, but we must move on. We cannot have a second one.

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

[English]

Criminal Code 
Corrections and Conditional Release Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Watt, for the second reading of Bill C-247, to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences).—(Honourable Senator Bryden).

Hon. John. G. Bryden: Honourable senators, Bill C-247 purports to do two things: One, it amends the Criminal Code to direct that a judge, in sentencing someone convicted of sexual assault who has previously been convicted of another sexual assault, must order those sentences to be served consecutively, subject to certain exceptions; and, two, it amends the Corrections and Conditional Release Act to require that a person serving a life sentence for the murder of more than one person can be ordered to serve up to a maximum of 50 years in prison before being eligible to apply for parole. Right now, the mandatory term is 25 years.

I oppose the principle of this bill, the process by which it got here, and the flawed drafting of the bill. First, in my opinion the bill promotes a principle of sentencing that is alien to our Canadian criminal justice system and to the carefully developed principles of sentencing set out in the Criminal Code. Second, the bill is not the result of careful thought or of detailed study. It was cobbled together at the report stage in the other place because the Commons all-party Standing Committee on Justice and Human Rights had rejected every single clause in the original bill in its entirety. Third, even if the Senate were to accept the principle of sentencing advocated in this bill and to overlook the flawed process by which it got here, this bill is so badly drafted that it would require not extensive amendments but a complete rewrite if it is not to throw sentencing for sexual assault and murder into complete confusion.

I should like to consider each of these concerns in more detail, the first of which is my concern that the bill promotes a principle of sentencing that is alien to our Canadian criminal justice system and the carefully developed principles of sentencing set out in the Criminal Code.

Honourable senators, with the possible exception of the Charter of Rights and Freedoms, our Criminal Code and our system of criminal justice constitute our most profound expression of those fundamental moral precepts that bind us into a civil society. This body of law has been carefully expounded and developed over decades — centuries, in fact. The level of care and scrutiny involved in making fundamental changes to this system was recently demonstrated when, just a few years ago, in 1995, Parliament passed Bill C-41. In that bill, Parliament set out, for the first time in Canadian history, those principles that were declared should govern sentencing in criminal cases. These principles were the result of many years of detailed study. They reflected recommendations made over a 13-year period from two white papers, a royal commission on sentencing, a parliamentary committee, and two previous bills that died on the Order Paper. The parliamentary committee, by the way, was chaired by David Daubney when he was a Progressive Conservative member of Parliament. Mr. Daubney is now Coordinator, Sentencing Reform, with the Department of Justice and has testified to the problems with this bill.

Let me read to honourable senators the sentencing principles that were laid down by Parliament just five years ago and became section 718 of the Criminal Code. Section 718 states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following principle objectives:

(a) to denounce unharmful conduct;

(b) to deter the offender and other persons from committing further offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparation for harm done to victims or to the community, and;

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

(1610)

Honourable senators, these are the principles that are to be applied in all cases — not just some cases. These are the principles that Parliament said must govern sentencing for all crimes committed. These are the principles that we trust and we expect our judges to apply appropriately. These principles reflect our society. They reflect Canadian values. They say much about what it is to be a Canadian. Without vindictiveness or without vengeance, their entire focus is ensuring a safe Canada. They uphold standards of conduct in community. Any bill that purports to change the role that sentencing will play or fulfil in Canadian society must be judged in light of these carefully, thoughtfully developed principles.

Honourable senators, Bill C-247 does not reflect these principles. As drafted, the bill would specifically override these principles in several respects, but I will address this issue later when I turn to the many flaws in the bill. For now, I will focus on the underlying premise of the bill.

When I review the transcripts of the speeches of the sponsor and supporters of the bill, in either its first or its second incarnation, I cannot avoid the conclusion that, under the mantra of victims' rights, this bill introduces vengeance as a sentencing principle into our criminal justice system. The concept is founded on the biblical injunction of "an eye for an eye." Let me read you the full quotation from Exodus, chapter 21, verses 23 to 25:

...life for life, Eye for eye, tooth for tooth, hand or hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.

There are technical problems with a literal application of this principle. Do you rape a rapist, molest a molester? How do you take someone's life twice over if they take two lives? This bill uses prison time instead.

The basic principle of this bill is that the amount of time an offender spends in prison should be directly related to the number of victims and the offences committed. The premise is the more time spent in prison, the better — period. Principles of deterrence, rehabilitation, reparation and responsibility are subordinated to the number of offences committed. Prison becomes a panacea — perhaps a dangerous panacea.

Honourable senators, this approach concerns me not only because it ignores the basic principles of sentencing referred to above, but also because it is not clear that longer prison sentences reduce crimes of sexual assault. In fact, it is by no means clear that more prison time will reduce the likelihood that a particular offender will reoffend. A study prepared just last year for the Department of the Solicitor General of Canada found precisely the opposite; namely, that imposing longer prison terms increases the risk that a person will reoffend.

The data in this study represents the only quantitative assessment of the relationship between time spent in prison and offender recidivism. The database consisted of 325 comparisons.... On the basis of the results, we can put forth one conclusion with a good deal of confidence. None of the analysis conducted produced any evidence that prison sentences reduce recidivism.... The view that only lower risk offenders would be deterred by prison sentences was also not confirmed. The lower risk group who spent more time in prison had higher recidivism rates.

That is from page 11 of "The Effects of Prison Sentences on Recidivism," User Report 1999-24, by Paul Gendreau and Claire Goggin of the Centre for Criminal Justice Studies at the University of New Brunswick, and Francis T. Cullen of the Department of Criminal Justice at the University of Cincinnati.

Another study, published in January of 2000, developed risk assessment procedures specifically to identify the risk of recidivism in sex offenders. The authors are cautiously optimistic about the results so far. One of the policy implications identified from the study reads:

Since the risk level of an individual offender can change substantially, policies should allow for the reintegration of sexual offenders into society and not assume that all those who have committed such offences are indefinitely at high risk to reoffend.

That is from the Solicitor General of Canada research summary of "The Sex Offender Need Assessment Rating," or SONAR, by R. Karl Hanson and Andrew Harris.

If the concern is, as has been suggested, to deal with the most serious serial rapists and murderers — the Clifford Olsons and the Paul Bernardos — is that not why the Criminal Code sets out careful and thoughtful procedures governing dangerous and long-term offenders? If someone poses a danger to the public, then that already can be addressed. This bill adds nothing but confusion.

I believe the bill fundamentally changes the focus from one of finding the right sentence for the particular crime and offender based on the principles laid out in the Criminal Code to one of escalating punishment by increasing incarceration of the offender in increments equal to the number of offences committed. That is a big change.

Honourable senators, this country used to have a criminal justice system based on punishment. The system was weighted very heavily in favour of demonstrating the horror with which society viewed the crime.

I will give honourable senators some examples from the book Crime and Punishment in Canada: A History by D. Owen Carrigan, published in 1997.

Jacques Begeon, who killed his neighbour in 1668, was sentenced to be tortured and then taken to the door of the parish church dressed only in a nightshirt, a rope around his neck, and carrying a torch. On his knees he was to ask forgiveness of God and the King and justice for the crimes that he had committed. He was then to be hung on the gallows in the marketplace of upper town, after which his right arm and head were to be cut off and placed on public display, mounted on a stake.

One David McLane was convicted of high treason. He was sentenced to be hanged, but with the proviso that he be cut down alive "and your bowels be taken out and burned before your face; then your head must be severed from your body, which must be divided into four parts."

Honourable senators, I am not reading these excerpts out of historical curiosity. These punishments were not imposed by our ancestors in the interest of being barbaric. I am sure they were accorded in the genuine belief that this was just for the offender, just for the victims, and would deter future crime. These sentences were imposed at a time long before the sentencing principles enunciated in the Criminal Code. However, even today, in certain societies clearly horrific, indeed repugnant, sentences are still imposed in the name of justice.

On March 17, the National Post reported that a judge in Pakistan sentenced a serial child killer to death by strangling, his body then to be cut into 100 pieces, one for each of his victims, and put in acid. He was also sentenced to 700 years in prison for destroying evidence — seven years for each of the bodies the judge said he had destroyed.

This sentence appears to us to be remote and alien. I was, therefore, shocked to read a letter to the editor in The Ottawa Citizen that appeared on March 21 of this year. It said:

Finally. Somebody believes in an eye for an eye and I applaud Pakistan's ruling in the case against Javad Iqbal, the child murderer who took the lives of 100 children.... It's about time that one of these monsters experienced the torture they so coldly inflicted on innocent children. Canada should take a lessen.

It is signed "Claire Saunders, Kanata."

Honourable senators, our criminal justice system says as much about who we are and the values we espouse as it does about anything else. What is the nature of Canadian society today? The proponents of this bill have said much about the Clifford Olsons and the Paul Bernardos of this world. However, those are the exceptions. To quote from an article that appeared in The Globe and Mail on March 21, 2000, written by Andrew Sullivan, whose brother was murdered:

We cannot learn anything terribly useful from, say, Karla and Paul. —

He is referring to Karla Homolka and Paul Bernardo.

— We cannot learn from them anything useful about the justice system, or fairness, or anything like that; these people are monsters, who do nothing but inform our nightmares....From truly awful cases, we might learn something about how we ought to change our culture, but the discussion would require a lot more pain than most of us are willing to take, especially in public. In our anger, we would rather hear the desperate cacophony of blood lust.

(1620)

Would we, as a society, allow ourselves to be defined by these monsters, the Clifford Olsons and the Paul Bernardos? I hope not. I, for one, would not give these criminals the satisfaction of changing our nation and our fundamental principles and values.

We are a decent society with good, strong values. Crime, in fact, is down. Violent crime has decreased every year of the last six years. I shudder to think what we would become if we were to incorporate principles of vengeance and invectiveness into the principles of justice.

Honourable senators, I fear we would become them. Our values would be indistinguishable from the criminals whom we are punishing. We would be saying that these are acceptable values.

The Hon. the Speaker: Forgive me Honourable Senator Bryden, but your 15-minute speaking time has expired.

Senator Bryden: I ask leave.

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

Hon. Senators: Agreed.

Senator Bryden: We would be saying that those are acceptable values. Is that what we want to teach our children? Is that the vision we accept for the future of Canada and Canadians?

Moreover, as I will elaborate later, it is not necessary that we change our laws in order to address these extraordinary cases. These individuals have been sentenced. Whether or not they become eligible to apply for parole, I strongly doubt that any parole board would see fit to grant parole. I have confidence in our current system. We have strengthened the provisions of the Criminal Code concerning dangerous offenders and long-term offenders, largely in response to lessons learned from such cases.

I realize many arguments have been raised in support of this bill in the name of victims' rights, seeking some just equivalence in the sentence for the grief and the pain. There can be no equivalency between a crime and its punishment. Is the life of a criminal equivalent for a father or mother to the life of their beloved son or daughter? Of course not. Surely, one does not seek or gain meaning from the death of a loved one in the length of prison term given to the perpetrator.

Frankly, I do not know whether any meaning can be found in a murder. I worry that we delude ourselves and, perhaps, mislead the families of victims into the belief that, somehow, their grief would be assuaged if the criminal spends 50 years in jail before applying for parole, instead of 25 years. These families have suffered unspeakably. They must deal with their grief in any way that they can. However, these amendments will not bring peace. Allow me to quote again from the recent article by Andrew Sullivan in The Globe and Mail. He states:

People whose loved ones are murdered get angry. When my brother Matthew was murdered in 1998, I got angry. But angry people should not be consulted as expert witnesses as we try to reform the justice system. We who are angry want our own pound of flesh. Having had it, we will not be quiet; one pound will not be enough. Nothing will be enough. It can't be. There simply is no such thing as "closure" when I talk about my brother's murder in his Buffalo driveway, or when you talk about how your daughter was killed while crossing the street. Those of us who are busy grinding axes cannot mete out justice.

Mr. Sullivan also said:

On the radio, I heard a politician from the Reform Party complaining about how soft the penal system is in Canada. I heard the father of a now-dead man talking about how much harsher penalties would be in another country; he spoke with a sad relish. It seems to me that too many of us are desirous of others' suffering. Perhaps the idea is this: Since violent criminals make others suffer, they, too, should suffer. Gandhi answered that kind of belief: "An eye for an eye makes the whole world blind." There is no recompense in another's suffering.

In fact, victims' rights groups have not sought vengeance. Victims' rights groups call for notification, support and the right to be consulted. These were the findings of a special study conducted in the House of Commons by the Standing Committee on Justice and Human Rights, under the then chairmanship of the late Shaughnessy Cohen. They produced an excellent report aptly entitled, "Victims Rights — A Voice, Not a Veto". It was issued October 1998. Regrettably the sponsor of this bill in the other place, Mrs. Albina Guarnieri, admitted that she had not read that report when she defended this bill on the basis of victims' rights.

Honourable senators, many years ago I attended a meeting with the late Chief Justice Ivan Rand. Part of the discussion revolved around capital punishment. He was asked what his reaction would be if he returned home and found that someone had killed his wife and children? Mr. Justice Rand's answer was succinct: "I would kill him, and that is why we have laws, to restrain people like me."

It is this kind of thinking that I believe was fundamental to the careful development of the principles of sentencing that are now enshrined in the Criminal Code, and that now direct Canadian judges.

I believe that the principle of Bill C-247 would undermine and erode these principles. It would mark a terribly retrograde step, to a stage of our social development that we have long since passed.

My second concern is that the bill is not the result of careful thought or detailed study. It was cobbled together at the report stage in the other place because the House of Common's all party Standing Committee on Justice and Human Rights had rejected every single clause and the original bill in its entirety.

Senator Cools expressed surprise at Senator Nolin's suggestion that the bill is not in concert with the existing principles of sentencing. Senator Cools said that the House of Commons had already passed the bill, and that in the course of the passage she suspected that many people had a look at it.

Honourable senators, and Senator Cools, Senator Cools' suspicion was wrong. The bill in its current form was never studied at all in the other place.

Further, some have appealed for the support of this bill based on the argument that the bill is a victory of Parliament over government. For example, Senator Cools said in her address to this chamber:

In Canada, parliamentary opinion on the administration of Canadian criminal justice is unwanted, particularly on the subject of punishing and sentencing. Bill C-247 is an unwanted parliamentary opinion that passed the Commons by majority vote, despite the fact that it was unwanted by the Minister of Justice.

Honourable senators, this does not tell the whole story. This bill may, indeed, have been unwanted by the Minister of Justice; I do not know. After careful study, I have concluded that the bill would hurt, not improve our justice system. I believe the minister would have had good reasons for that opinion. The bill was also unwanted by the parliamentary committee of the other place, which studied it extensively.

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The Standing Committee of the House of Commons on Justice and Human Rights voted down every clause of the bill when it was before them. Amendments to the bill were then negotiated during debate at report stage. The bill, in its amended form, that is, the form before us today, did not receive any study in the other place; and the amendments radically altered the bill. This was an issue highlighted by Paul DeVillers, the Liberal MP from Simcoe North, when he spoke to the bill at third reading during the last session of this Parliament. He was a member of the committee that studied and rejected the bill. He said, as reported at page 15894 of the House of Commons Debates for June 7, 1999:

Madam Speaker, much has been said this morning about this debate being a battle of the backbench against the government. There are many members of the backbench who are not in government and have extreme difficulty with this bill and with the fact that it has not been voted through the committee system.

The amendments that are the subject of today's vote were negotiated while the debate at report stage was carried on. There are many issues that should be studied. Certainly many of us feel that this bill should be sent to committee.

Honourable senators, this is not the way we make laws in this country, particularly laws that impinge the liberty of Canadians. This is not the way we should make laws in this country. Are the views of parliamentary committees to be ignored? The committee of the other place took this bill very seriously. They heard witnesses from 15 organizations. They listened to views, both pro and con, including the two professors from whom Senator Cools suggested the Senate committee might wish to hear. The members of the committee then made their decision, and that decision was that the bill should not proceed.

Honourable senators, I believe in the parliamentary system as it has evolved in this country. I take seriously the views of our fellow parliamentarians. When a committee studies a bill, and then decides outright to reject all its clauses, that is a decision that deserves to be taken seriously. The committee did not put forward amendments; it flatly rejected the bill. Read the transcripts, honourable senators. There were no expressions of outrage during clause-by-clause study of the bill. There were no allegations that the process was somehow flawed. There were no suggestions that amendments were somehow railroaded. No, honourable senators, the process was correct and proper. After detailed study, the committee decided to reject the bill.

Honourable senators, it is not accurate to depict this bill as a win for democracy. I view this bill as a serious undermining of democracy because the considered views of those committee members who studied the bill in detail were cast aside and ignored as if no study had taken place.

Finally, honourable senators, this bill in its current form is seriously flawed. According to the proponents of the bill, its purpose is to address punishment for perpetrators of the most heinous crimes, notably serial rapists and murderers; yet clause 1 of Bill C-247 fails to address the truly serious sexual assaults. One might say that it brings a sledgehammer down upon the less heinous crimes, such as non-consensual sexual touching, while ignoring crimes like sexual assault with a weapon, and aggravated sexual assault.

Honourable senators, this also points out the importance of our parliamentary committees. This issue was raised repeatedly in the testimony before the committee in the other place. In fact, the amendments introduced references to these other more serious sexual assaults, but they did it in an absolutely wrong-headed way. Let me explain, honourable senators.

As drafted, the bill would require a judge to order consecutive sentencing in cases where someone is convicted of a so-called level one sexual assault and that person was previously convicted of a level one assault or the more serious aggravated sexual assault or sexual assault with a weapon. There are some exceptions to this requirement, which are also drafted with very strange results, but more on that later, honourable senators.

For now, let me point out that the bill only applies to someone being convicted for this level one sexual assault, such as non-consensual touching. It does not require this consecutive sentencing when dealing with someone with multiple convictions for aggravated sexual assault or sexual assault with a weapon. Those people would not be subject to this bill. The result is that someone could be sentenced for a longer term of imprisonment for non-consensual touching than for sexual assault with a weapon.

Is this a case of sloppy drafting? Yes. This same sloppiness is apparent throughout the bill. As I mentioned, there are exceptions to this requirement to order consecutive sentencing. Basically, the bill requires — in mandatory language, "shall" —  a judge to order consecutive sentences for a conviction of level one sexual assault where that person was previously convicted of any sexual assault charge, unless the judge "is satisfied that the serving of that sentence consecutively would be inconsistent with the principles of sentencing contained in sections 718 to 718.2 of the Criminal Code, in which case the judge may order that the sentences be served concurrently."

In other words, honourable senators, if consecutive sentencing would be inconsistent with Canadian sentencing principles, then and only then may the judge decide to order concurrent serving of the sentences. Honourable senators, surely, if consecutive sentences are inconsistent with our sentencing principles, then the judge should be required to order concurrent sentencing. Why is there discretion in this part of the bill?

The bill goes even further in this regard. Proposed subsection (3) then sets out the factors to be considered by the judge in exercising this discretion; that is, when the judge is permitted to have regard to things like the nature of the offence, the circumstances surrounding its commission, the degree of physical and emotional harm suffered by the victim, the offender's attitude, criminal record, et cetera. Honourable senators, this is setting our criminal justice system on its end. It is completely backward. The sentencing principles govern first, and then the specific situation is applied to those.

Once again, honourable senators, Bill C-41, which established sections 718 to 718.2 of the Criminal Code, codified, for the first time in Canadian history, those critical principles that Parliament said must govern criminal sentencing. These are not principles to be cast off in the exercise of judicial discretion. To the contrary, they are the very principles that must govern the exercise of judicial discretion.

I could go on at much greater length about the numerous problems with this bill. For example, it requires that a sentence imposed for a level one sexual assault be served consecutively to any other sentence for one of the sexual assault offences. Honourable senators, imprisonment is not the only sentence imposed for sexual assault, especially the level one sexual assaults that are the issue of this bill. Yes, level one sexual assaults include the heinous crime of rape, but, as I mentioned before, this section also covers the whole range of non-consensual sexual touching. They do not all result in a prison sentence. In some cases, for example, a conditional sentence is imposed as the best approach to rehabilitate the offender and reduce the likelihood of a further offence. Again, this problem was pointed out by the committee that studied the bill, but evidently this testimony was also ignored by the drafters of this amended bill at report stage.

These comments evidence the lack of care that has been paid to the drafting of this bill. Yet the bill would have a serious impact on the liberty of Canadians. Amendments to the Criminal Code, arguably the most serious statute we have, cannot be passed in this kind of cavalier and slovenly fashion.

In fact, the proposed amendments contained in clause 1 are completely unnecessary. At the moment, consecutive sentencing applies unless the multiple convictions arise out of one continuing transaction or event. Honourable senators, for all its clauses, nothing in the bill would change this. The original bill would have changed it. It would have required a judge to impose consecutive sentences for an offence "arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1)."

This language was changed completely by the amendments at report stage. As drafted now, consecutive sentencing under the bill would only apply where the person had previously been sentenced for the other sexual assault offence. It would not apply for multiple convictions imposed at the same trial, as would usually occur for multiple convictions arising out of the same event or series of events.

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In other words, this bill would not change the existing law. It is unnecessary. Yet, it could seriously undermine Canadian sentencing principles. Why would we want to do this, honourable senators? What would we possibly achieve that warrants this serious, retrograde step?

Let me now turn to clause 2 of the bill. We have been told very emphatically that the bill challenges the current law that multiple murderers can receive no incremental sentence — not one day, not one hour — for the second, third or even the eleventh life taken in brutal murders that they have committed. We are told that Bill C-247 challenges the notion that multiple murderers should be guaranteed a chance to apply for parole after serving 10 or 25 years of their life sentences, regardless of the number of murders they have committed.

Honourable senators, that is what we were told in earlier proceedings in this chamber, but it is not completely accurate. When one reads the testimony heard by the committee in the other place, one learns something different. In his testimony, David Daubney said that in fact:

...an offender serving a life sentence and still under the 25-year parole ineligibility period who receives a subsequent life sentence for first-degree murder will begin a new 25-year parole ineligibility period as of the date of arrest for that homicide. So if this were to occur after he'd served, say, 24 years, he would face another 25 years of parole ineligibility. Much of what clause 2 of the bill I think wishes to accomplish is already part of our law.

It is also not correct to say that multiple murderers are guaranteed a chance for parole after serving 10 years of their life sentence. The 10-year parole eligibility clause specifically does not apply to multiple murderers. Under section 745(b) of the Criminal Code, a person convicted of more than one murder charge will not be eligible to apply for parole before 25 years.

Honourable senators, I was most struck by the fact, once again, that the sponsor is exaggerating the effect of this bill. While we are told that the bill will ensure that every victim "counts" in the sentence imposed, in fact the bill only "counts", to use that deplorable phrase, the first two victims. Under proposed subsection (2.3), a person convicted of multiple murders would be required to serve consecutive periods of parole ineligibility but to a maximum of 50 years. Assuming 25-year parole ineligibility for each murder, that means only the first two "count".

Honourable senators, I have begun to think that this bill is more about rhetoric than about criminal justice. With great fanfare, it proclaims that the most serious multiple sexual offenders will now have to serve consecutive sentences for their crimes, but when we look into the matter a bit, we discover that consecutive sentencing exists now and the bill really would not change the current law. When we then read the fine print of the bill, we realize it leaves out altogether people serving multiple sentences for the most serious sexual offences.

With respect to people convicted of murder charges, contrary to the rhetoric, the bill would not add 25 years for every victim, ensuring a sentence for the second, third or even the eleventh life taken in the brutal murders that were committed. It would add 25 years to the already-existing 25-year parole ineligibility that applies.

Honourable senators, this points up another of the other fundamental problems I have with this bill. We do not, and we should not, "count" victims. Rather, we deplore and we denounce murder. Is a murder less reprehensible because there is only one victim? No. We have mandated a life imprisonment sentence for murder in the Criminal Code, period. Indeed, one of the most eloquent statements on this bill at committee came from a convicted murderer, Mr. Glen Flett, who is out on parole and devotes his time to working with prison inmates. He said:

I came to argue against this bill because one of my biggest concerns is the way it removes denunciation of the crime of murder, or at least the life sentence denunciation of the crime of murder. I am currently doing a life sentence of 14 years minimum before eligibility for parole. I believe that sentence is life, and not 14 years. I currently have been out in the community for the last nine years on that sentence, and I find that my sentence has been harder here in the community than it was in prison. I've had to face the consequences of what I did.

That is the testimony of Glen Flett on March 16, 1999. Incidentally, Mr. Flett works with victims of crime in his organization as well.

A man or a woman has only one life on this earth. How can we impose any sentence longer than that? The sponsor of this bill has clearly recognized that it is right and appropriate to limit the period of mandatory parole ineligibility. Canadian law has said 25 years. This bill would say 50 years.

Honourable senators, we must not lose sight of the nature of the decision before us. Parole eligibility is not parole entitlement. When Canadian law says a person is eligible to apply for parole, that means that a properly constituted parole board, after hearing representations, including from the victim and the victim's family, if they wish, will decide whether or not the offender, as he or she is at that time, after 25 years in prison, should be released on parole to serve the rest of his or her sentence in the community.

Honourable senators, 25 years is a long time. Can we say a person is more likely to be rehabilitated and fit to enter civil society after 50 years rather than 25? How can we ask a judge to look 50 years into the future and say now what the offender will be like then? Do we pass any laws that cannot be amended, as circumstances change, for 50 years? No. Yet we are asking a judge to make that kind of decision. Is it not better to leave the law as it now stands, allowing the Parole Board to look at the offender after 25 years in prison and make the judgment on the basis of the person as he or she is then, rather than on the basis of the person he or she is today before serving time in jail? What about the Glen Fletts who genuinely change and, in fact, make a positive contribution to Canadian society?

Not surprisingly, there are serious technical issues with this clause as well. First, I question whether the bill amends the correct statute in this clause. Some of this clause correctly belongs in the Corrections Act, but it would be highly unusual to grant the sentencing judge discretion in the Corrections Act. Proposed subsection (2.2) should, it seems to me, go in the Criminal Code itself, along with the other provisions on sentencing.

I also question whether the bill amends the correct section of the Corrections Act. It amends section 120 in the Corrections Act, but that section does not address parole ineligibility for multiple sentences at all. Those provisions are set out in section 120.1 and 120.2. Proposed subsection (2.4) directs a judge in the exercise of discretion in deciding on parole ineligibility and specifically requires — the mandatory "shall" again — the judge "to have regard to whether the total period of parole ineligibility would adequately denounce the murder and whether it would adequately acknowledge the harm done to the victim."

Once again, honourable senators, the bill is ignoring the carefully drafted sentencing principles that we passed recently. Is the bill directing the judge not to consider the other sentencing principles, matters like rehabilitation and deterrence? Changing Canada's sentencing principles should require extensive thought and analysis.

Bill C-41, which originally enacted these principles in the Criminal Code, as I referred to earlier, followed many years of careful study. Do we cast these principles out in this cavalier fashion, in a bill that has not been studied in any serious way in the other place, except by a committee that voted to reject its predecessor entirely? Is this proper? Is this just? Is this the Canadian way?

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Honourable senators, I believe that when you look beyond the emotion and the rhetoric, this bill is so severely flawed, in both its principle and its drafting, that it should be rejected. Frankly, to fix the problems would require such an extensive reworking that I doubt we would be within any principle of the bill as it now stands.

Most important, though, to vote for the principle of this bill would mark a serious turning point in Canadian criminal justice. In my opinion, we would be incorporating principles of vengeance into our system. I, for one, have too great a love for Canada and too deep a respect for our role as parliamentarians to take such a step.

Honourable senators, I believe there is a procedure that allows, if it is deemed appropriate by this chamber, a bill such as this to be referred to committee without passing it in principle at second reading stage. If that is the will of this house, then so be it. I am not advocating that because I do not believe there is a salvageable piece of legislation here. However, that may be the wish of honourable senators.

Having said that, I will conclude by quoting once again from the article by Mr. Sullivan, who said:

Supposing that the police tracked down my brother's murderer, we could, I guess, put him in jail forever, or hang him, or fry him with electricity, or inject him with poison. But that would not give me peace, nor would it soothe the wounds of the rest of my family. All it would do is spread more pain.

...No, let us stop the cries for blood. We have spilled enough. Let us, instead, find some way to find peace —  some way that does not involve yet another endless bout of never-sated anger and ever-burgeoning hate, even if that means just being quiet for a while in the face of death. At least the silence will give us time to think about what we do.

Honourable senators, I cannot and I will not support this bill.

Hon. Anne C. Cools: Honourable senators, would the Honourable Senator Bryden accept a question?

The Hon. the Speaker: Honourable Senator Cools, are you asking a question?

Senator Cools: Yes.

The Hon. the Speaker: Please proceed.

Senator Cools: I am very grateful to the senator for his consideration.

The senator has talked about the Canadian way of doing things. I wonder if the senator is suggesting at all that I am not very Canadian in my way of doing things? The senator has said on several occasions that the sponsor of the bill, namely myself — and I am not wedded to this bill, honourable senators, this is not my bill, it is Ms Guarnieri's bill — has been exaggerating. Could the senator tell me how I have been exaggerating anything to this chamber?

Honourable senators, let me explain very carefully. I feel strongly that when I rise on the floor of this chamber, that senators can know and believe that I speak to them with a high degree of integrity. I want Senator Bryden to tell me how and where I exaggerated?

Senator Bryden: Honourable senators, if you look at the transcript I believe you will see that I never used the word "exaggerate". I commented on the bill itself, which in my opinion is not helpful, or worse. I commented on statements that were made on the record in the other place by whom I considered was the sponsor of the bill in the other place. I also commented on and quoted remarks from the Standing Committee of Justice and Human Rights in the other place, and I also referred to a couple of sentences from the transcript of Senator Cools. I was very careful in what I said. I did not say the honourable senator was exaggerating. I said that I believed she was mistaken, I believed there was more to it, and then I went on to quote. Indeed, I would never indicate that she was acting in other than what she considered the best interests of this place. I, like Senator Cools, have a right to my opinion. Once again, I very carefully prefaced my remarks by saying "in my opinion". I invite the honourable senator to check Hansard.

Honourable senators, that is the position. I am simply correcting the record as best I can.

Senator Cools: Honourable senators, I thank Senator Bryden for his response, but I remain unsatisfied. When we speak of the sponsor of Bill C-247 in this chamber we are referring to me because this debate is taking place on the floor of this chamber. I am the sponsor of Bill C-247. I have said on many occasions that I am not wedded in any way to this bill. Perhaps I could be wrong, but I am absolutely certain that I heard Senator Bryden say, "the sponsor is exaggerating". I understood that to mean and I heard it to mean the sponsor in this chamber.

If that is not Senator Bryden's intention, then I am happy to sit down and to say that I misheard or I misunderstood. However, I heard Senator Bryden say, very clearly, "the sponsor". In this chamber I am the sponsor. I wonder if Senator John Bryden could clarify?

Senator Bryden: I shall do the best I can. I attempted to make it clear that — and I indeed used the MP's name in the transcript — I was referring to the person who had sponsored the bill. Once again, though, I may be wrong but I do not think even there I used the word "exaggeration".

When I was discussing what happened in this chamber, I twice referred to Senator Cools by name because I was quoting her. Those are the instances. If Senator Cools has drawn another impression, that is unfortunate, but that certainly is what I intended to say and I believe that is what I said.

Senator Cools: I will review the record with some care, but what I heard, as sponsor, was the honourable senator talking about the bill in this chamber. The sponsor of the bill in the other chamber really has no place in the debates here because we are required to be respectful of how we speak, even of members of the other place. For the purposes of this debate, sponsor means me. However, I can leave that for another day.

I should like to make it quite clear, honourable senators, that when I rise to my feet in this chamber I always try to be noble, magnanimous and fair. Any honourable senator who cares to examine the record here will see that my record speaks for itself. We will leave that discussion to another day.

Honourable senators, I can tell you that I go to great trouble to check every word that I say. I put in endless hours of work so that senators can know that when I rise to speak I speak from a position of very high regard for this chamber, and with integrity. There are many things people can say about me, but that I exaggerate is not one of them.

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My real question to Senator John Bryden is as follows: He has said that the four principles of sentencing are retribution, deterrence, rehabilitation and proportionality. I believe he said that those are the four principles. The old word for "rehabilitation" was "reformation", the change in the offender himself.

Could Senator Bryden tell me exactly how Bill C-247 deviates in any form or fashion from the principles of proportionality and reformation?

Senator Bryden: I do not want to repeat my speech, but I will say once again, for "correction" purposes, that there are not four principles of sentencing; there are, in fact, six:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Those are the principles that took so long to devise and that are in place.

I have gone through the bill as carefully as I can, and I have presented my position as carefully as I can. If it still is not clear enough for Senator Cools, I have no way of making it clearer. I have unfortunately taxed the patience, which I usually do not do, of the Senate. There is very little that I can think of to add to what I was able to bring forward here today, except, perhaps, details of changes in the bill itself.

Senator Cools: I accept that Senator Bryden has said what he has said. However, let me be crystal clear again, honourable senators, because obviously I will have to spend some time to chisel out these issues. I know a lot about sentencing because I myself served on the National Parole Board for some years. The two essential principles about which the bill hovers are the question of proportionality in sentencing and the question of reformation. I can revisit that matter another day.

Senator Bryden led me to understand that he understood that Bill C-247 would cause a judge to sentence offenders, for example, in the instance of first degree murderers, to an additional 25 years of parole ineligibility. I believe Senator Bryden said something to the effect that not all the murders would count, that only two would count.

Would Senator Bryden help me a little bit? It is my understanding that, on the second offence, a judge would have the power to give an additional amount of time for another offence but that there is no absolute maximum that he would have to give for each. In other words, if a murderer were to be convicted of a second and a third and a fourth first-degree offence, he could get 25 years parole ineligibility on the first one, and on the second and third and fourth he could get an additional five years, an additional six years, all to a maximum of 50. Is my interpretation accurate, or is Senator Bryden's, as presented to the chamber, accurate?

Senator Bryden: As strange as it may seem, we may both be accurate.

I believe what I said was that this bill purports to make a maximum ineligibility to apply for parole of up to 50 years. I did not exclude the fact that you could say, "No, we will not give you 25 years; it will be five years for the second one or the third one."

I believe Senator Cools is correct in saying that if you get ineligibility for parole because you have committed one murder and you have been sentenced, then if you are convicted of committing another murder there is no requirement in this bill that the additional ineligibility imposed by the judge would be the full 25 years. It could be an additional 10 or whatever.

Nevertheless, the point that I was making may be different than the one that Senator Cools is attempting to make. The point that I was making is this: Does it really help us to change the maximum eligibility to apply for parole from 25 to a maximum of 50? Honourable senators will have to draw their conclusion in relation to that. To use an example, suppose the judge, on a third or fourth conviction, puts in seven and one half, seven and one half, seven and one half, and they all add up to 23. Then suppose that the person gets out of jail and proceeds to kill five more people. Do those five get the balance of what is left of the 50 in six-month stages?

This is the major concern I have with this bill. If you are only sentenced to a year for the last murder, whereas when you committed the first murder you got a maximum of 25, does that mean that the person who was killed last is somehow worth less than the person who was killed first? You cannot, in my opinion, quantify it. As was said very well by a person who is doing a sentence for murder: A life sentence is that — it is for life, and you only have one life.

I would like to leave it there. I have been instructed that it is possible to decline to answer questions, but I do not want to do that. On the other hand, I do not want to go too far with the patience of our colleagues.

Hon. Nicholas W. Taylor: Honourable senators, I should like to address a question, but seeing that the honourable senator might say "no" to a question, may I ask him for a clarification?

Senator Bryden: I tried.

Senator Taylor: The honourable senator mentioned deterrence and vengeance. I thank him for a scholarly, thought-provoking breakdown of the whole area of sentencing for what used to be called capital offences. In the drive behind the sentence, it is easy to see that where one judge could be thinking deterrence another judge could be thinking vengeance. In the end, how is it possible to determine whether a sentence was meant as a deterrence or whether it was for vengeance? Is that not a very subjective decision? How do you fit vengeance into the equation? The end result is five years or fifteen years, whatever it is. It could be a deterrent, or it could be vengeance.

Senator Bryden: I did do my homework, and I do have some working knowledge of the good book. In Paul's epistle to the Romans, it says, "Vengeance is mine, sayeth the Lord." There is no reference to vengeance in the principles that govern sentencing in Canadian criminal courts.

You asked which of the principles would govern. Judges are human. I assume that, in a given case, one might put additional emphasis on one area as against others, but the intention is that, in imposing a sentence, all six of these carefully considered principles be taken into account by the sentencing judge. I assume that, in individual cases, a judge may very well give more emphasis to one area, depending on the situation. We must remember that we are not always sentencing for murders and heinous crimes.

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The honourable senator's question brought it all to the fore; that is, what is a judge supposed to consider? That is why this list exists. No judge would be doing his job properly if he did not consider each one of those principles in passing sentence. He need not necessarily give them equal weight, but he must consider all those principles at sentencing.

Hon. Pierre Claude Nolin: Honourable senators, I wish to thank Senator Bryden for the very interesting lecture.

Has Senator Bryden evaluated whether Bill C-247 would pass the test of section 12 of the Canadian Charter of Rights and Freedoms? For the benefit of our colleagues, that section of the Charter reads:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Has Senator Bryden considered that, or only section section 718 of the Criminal Code?

Senator Bryden: I did not consider section 12 in detail. In her address, Senator Carstairs emphasized her concern about section 12. Therefore, that is on the table.

My concern is that even if it were found not to be cruel or unusual punishment, from a criminal justice point of view it seems to be a dramatic shift from the direction in which we had been going, which appears to have been very successful.

Canada already has the second highest incarceration rate in Western society. That was my emphasis. The types of punishment, other than a maximum of 50 years rather than 25, can be found in the current Criminal Code with consecutive sentencing, and so on. My argument in that regard is that the bill does not add much within the sentencing principles. The bill goes outside of the sentencing principles and reverses not the onus but the preponderance, that is, the requirement to have consecutive sentences for these specific offences unless something else occurs.

On motion of Senator Taylor, debate adjourned.

Internal Economy, Budgets and Administration

Eighth Report of Committee—Debate Adjourned

The Senate proceeded to consideration of the eighth report of the Standing Committee on Internal Economy, Budgets and Administration (Accessibility for Persons with Disabilities) presented in the Senate on April 10, 2000.—(Honourable Senator Nolin).

Hon. Bill Rompkey moved the adoption of the report.

He said: Honourable senators, the eighth report of the Standing Committee on Internal Economy, Budgets and Administration, presented yesterday in the Senate, deals with an action plan on accessibility for persons with disabilities. The action plan was developed by a working group that was headed by Senator Carstairs and Senator Robertson and included Senate staff members. This group worked in close cooperation with representatives of the disabled community to develop a plan that addresses such subjects as employment goals, the kinds of facilities needed in the Senate for persons with disabilities, public information objectives, and the provision of technical assistance, aids and devices to persons with disabilities.

The eighth report describes the milestones and achievements made by the Senate over the past few months since the document entitled "Senator's Guide to Disability" was tabled last December. The report also outlines the initiatives the Internal Economy Committee plans to implement during the fiscal year 2000-2001. They include finalizing a disability training kit, training sessions for managers and staff, and incorporating accessibility issues on the Senate Intranet.

Honourable senators, Canadians have a right to participate fully in the affairs of the Senate. We believe that this action plan sets out an excellent blueprint for improving the participation of persons with disabilities. On behalf of the Standing Committee on Internal Economy, Budgets and Administration, I wish to thank Senator Carstairs and Senator Robertson for their initiative and work. Credit is due them more than anyone else. Senate staff worked with them in developing this plan, but they provided the leadership and the initiative. I thank them for their work on this document.

Honourable senators, I recommend the adoption of this report.

Hon. Brenda M. Robertson: Honourable senators, I am pleased to speak to the eighth report of the Standing Committee on Internal Economy, Budgets and Administration.

In our Canadian democracy, we subscribe to the rule of law and we must be diligent to ensure that our laws foster genuine freedoms. We hope that our laws provide a fair and equal opportunity for all citizens to achieve their productive potential and to fulfil their citizenship responsibilities in our society. In our society, real equality is a liberating experience clearly defined by our Canadian Charter of Rights and Freedoms.

I know that all senators would defend their rights to equal protection and equal benefit under our laws and our Constitution. However, circumstances and situations exist that may prevent some citizens from enjoying the rights and freedoms most of us take for granted. There may exist unintentional but, nonetheless, real obstacles to equality — artificial barriers that require our attention and our action.

Honourable senators, that was my concern when I raised in the Senate, in February of 1998, questions about accessibility and participation in Senate affairs by Canadians with disabilities. Today, I am happy to join with Senator Carstairs and the committee members here in recommending that the Senate adopt this report, which certainly benefits the 4.2 million Canadians who have a disability and which brings credit to the Senate of Canada.

Over the past 18 months, colleagues here in the Senate and officials of the Senate have worked with people with disabilities to produce the Senate Action Plan on Accessibility for Persons with Disabilities, which capitalizes on our creative energy and passion for equality. It is a plan that puts a special focus on full participation and accessibility.

The Senate has made some progress over the years in addressing disability issues. Some of the issues were raised by visitors to the Hill, Senate employees, and senators themselves who have a disability. We have made progress but we all acknowledge that there is much more to be done.

What is the purpose of the action plan? The plan is a coordinated effort to build on our accomplishments and respond to the expectations of the Canadian public. Our principal goal was to make the Senate a model of equality and to make the Senate one of the most accessible parliamentary institutions in the country. To do this, our action plan encompasses special initiatives on employment, improvements to our facilities, the provision of technical aids and devices, better access to public information, and attention to health and security measures. The plan is comprehensive and impacts the policies and practices of the Senate in nearly every sphere of activity.

Honourable senators, there will be new guidelines for selecting sites for committee hearings off Parliament Hill; demographic surveys will be undertaken to help develop targeted employment initiatives; publications and information materials will be made more accessible.

The work experience program for persons with disabilities will be improved and an inventory of aids and technical devices to accommodate special needs will be established. These are just a few of the highlights of the action plan, but allow me to make one other point on this matter.

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In one way or another, everyone in the Senate, both honourable senators and staff, has some degree of responsibility for the success of this enterprise. While the administration will be handled by senior officials of the Senate, honourable senators have a job to do as well. You will recall receiving the little book last December entitled "A Senator's Guide to Disability." That little handbook contains about 20 pages of basic information about disability in Canada — who does what and how to get help. It is also designed to support our leadership responsibilities in our respective communities. It will be helpful in your understanding of the role that you can play in making equality a reality.

The Senate action plan on disability also requires our diligence and attention. Officials need our guidance and our support. All of us need advice from the public, and particularly from Canadians with disabilities. In the final analysis, this plan is just a first step toward the goal of full participation and accessibility. It should be reviewed and revised every year, possibly to coincide with International Disability Day, which is December 3.

Honourable senators, I applaud those who worked so hard in preparing the Senate action plan on disability and look forward to continuing my involvement in this project. I want to specifically thank Senator Carstairs for her good work in this project and all the staff members who worked very hard and very diligently. We changed directors a few times but they still got the work done. I wish to conclude my remarks by supporting the adoption of this report by the Senate.

On motion of Senator Hays, for Senator Carstairs, debate adjourned.

Financing of Post-Secondary Education

Inquiry—Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Atkins calling the attention of the Senate to the financing of post-secondary education in Canada and particularly that portion of the financing that is borne by students, with a view to developing policies that will address and alleviate the debt load which post-secondary students are being burdened with in Canada.—(Honourable Senator Graham, P.C.).

Hon. B. Alasdair Graham: Honourable senators, I should like to add my contribution to the debate on the inquiry into the future of post-secondary education initiated so well by the Honourable Senator Atkins earlier this year. In a carefully argued address in this chamber on February 22, we were informed that Senator Atkins wished to examine what he viewed to be the three major problems that beset education in Canada: our high dropout rate, the lack of adequate preparation of our young people for the workplace, and the evident need to revisit the method of funding post-secondary education in this country. I wish to comment on all three of these problems and introduce three areas of concern that may be, in themselves, of equal merit in what I regard as a continuing process of national discussion over the goals and the future direction of our post-secondary institutions.

Honourable senators will recall that the Special Senate Committee on Post-Secondary Education was established in August of 1996 and issued its final report in December of 1997. Many of the issues examined at the time remain highly relevant in our country as we enter a new century. I draw attention to that excellent report, which ranges over issues such as student loans and debts, the question of our initiatives as a country in attracting international students, and the great need for the Government of Canada to make a long-term, strategic commitment to funding research and development in post-secondary institutions. I will return to that question in the course of my remarks. I do not intend to outline the great wealth of knowledge available in this report; I wish merely to point out the merits of reading the recommendations as a prelude to serious debate on this subject in this chamber.

First, I should like to express my agreement with Senator Atkins' observations on what he regards, properly, to be our unacceptably high dropout rates. I prefer to take a different departure point on this whole general issue of participation levels in post-secondary education.

As a sweeping report of Statistics Canada and the Council of Ministers of Education made clear recently, education levels, already high by international standards, have improved substantially over the last decade in this country. In fact, more young people graduated from high school and more high school graduates went on to higher education in that period. The report concluded that in 1990, 20 per cent of people aged 25 to 29 in Canada had less than high school education. By 1998, that percentage had dropped to 13 per cent. Also, between 1990 and 1998, the percentage of individuals in this age group who had university degrees rose from 17 per cent to 26 per cent. Internationally, among member nations of the OECD, Canada had the highest percentage of the population, about 48 per cent, with post-secondary education in 1995, compared with the OECD average of 23 per cent. Those were the last figures I was able to acquire.

In 1995, we spent 7 per cent of GDP on education, the highest among the G-7 countries. The OECD average was 5.6 per cent, while the U.S. recorded 6.7 per cent, obviously the second highest level.

Honourable senators, I should like to point out further that Canadian students have done extremely well on international assessments of student achievement measuring performances both in math and in science. One measure of this performance is known as the TIMSS, the 1995 Third International Mathematics and Science Study. The results show, among others, that Canadian students in grade 8 placed above the international averages in science and scored most favourably with the international average in math. Our very high investment in education does seem to be getting some of the desired results. Looking at the macro indices, we can take some genuine pride in terms of our competitive successes.

I now wish to think through some of Senator Atkins' comments on what he views to be the second major problem besetting education, namely, the perceived lack of adequate preparation of our young people for the workplace. I believe that there is a lack of adequate preparation as well, but I start from slightly different premises.

The recent report of the Expert Panel on Skills, prepared under the auspices of the Advisory Council on Science and Technology, examined the skills picture in five strategic industry sectors in this country, such as aerospace, biotechnology, information and communications technology, and so on. The advisory panel found that there is no shortage of high technology skills in Canada; rather, there is a shortage of opportunities — that is, a mismatch that governments and industries must address if the high educational levels of our graduates are to be adequately channelled into the knowledge-based economy. The report noted that:

On the whole, Canada's education...systems appear to be keeping up with the demands of Canadian employers for technically skilled people.... In some highly specialized and advanced fields of study, Canadian universities are producing more graduates than Canadian firms currently can absorb.... In sharp contrast with the technical skills picture, but equally critical to the competitive success of Canadian industry, is a persistent shortage of people who combine strong technical abilities with essential skills, such as communications and teamwork.

Honourable senators, most employers expect technical competence from recent post-secondary graduates, but they believe that the softer management and essential skills will be acquired through progressive work experience. The report goes on to suggest "the need to revisit both what and how young people are taught, and whether or not schools and businesses could prepare them better for the world of work."

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I believe that Senator Atkins opens up an important problem here for continued and extensive discussion. I have no doubt that business can play a role in terms of more direct involvement in the education process. I believe government initiatives, such as those observed in Ireland and the United Kingdom — in terms of providing small firms with the means to hire highly educated but inexperienced graduates whose skills would help them innovate over time — help so-called SMEs, or the small businesses, combat the disadvantages of smallness. These kinds of programs, along with the enormous potential of industry sector councils, for example, are essential in better preparing our graduates for the wonderful world of work.

However, I believe we must look elsewhere for the sources of industry complaints about the needs to revisit what and how our young people are taught. I pay tribute to Senator Lois Wilson's recent reflections on the essential value of a well-rounded general education, seeing the importance of communications and the humanities, among others, as just as valuable to future employability as technical and/or technological training, if not more so.

Senator Wilson made reference to the Ontario government's one-sided lavishing of funds on high-tech courses at major universities as juxtaposed to the starving, as she put it, of the liberal arts and smaller schools that focus on them.

I wish to thank Senator Wilson for her timely and highly significant remarks on this important subject. I agree wholeheartedly with the fact that education must provide a balance between skills and humanities, between science and communications.

Ironically, I find myself in company with whom I do not always or often agree, and that is the executives of Canada's high-tech industries. Last week, 30 CEOs demanded greater funding of the liberal arts. Their communiqué, which I believe was completely unanticipated, was, I might add, what could be regarded as an historic reversal for an industry that has complained vociferously over the years that our post-secondary institutions are not providing sufficiently skills-based education. Now it would appear that they are contradicted by recent findings showing that there is no shortage of high technology skills in Canada. Finally, we see these captains of industry publicly arguing for balance in funding, reasoning that industry cannot build the digital economy with technology graduates alone. The CEOs have obviously come to understand that there is an equal and, in many ways, urgent need for broadly educated people, culturally literate decision-makers who think creatively, who reason well and can also write and speak.

Honourable senators, it is no longer old-fashioned to believe that education must concentrate on the maximization of the talents of the whole person. The pendulum is now shifting back, and rightfully so, to the value of a liberal arts education. Increasingly, technology leaders and entrepreneurs are warning that we are in danger of making a huge historic mistake by focusing purely on technical education.

I will now turn to Senator Atkins' very perceptive remarks on the current crisis in student debt, as well as the problems he presented which related to student funding overall. I was particularly struck by his comments on the post-war initiatives for war veterans. Because of these programs, he concluded:

Canada had an energetic and well-educated workforce which helped make Canada one of the leading nations in the world in the 1950s and the early 1960s.

I believe there is a great deal of truth in this. I believe that Senator Atkins is correct in emphasizing that without considering the means by which Canadians did things in the past, we cannot stand on solid ground in examining the means to build a better future.

I need not go into the subject of the issues of costs and high debt loads, as Senator Atkins, Senator Wilson, Senator DeWare and Senator Callbeck have very effectively demonstrated the magnitude of what I fully agree is a financial crisis facing those enrolled in post-secondary institutions in this country. I do want to congratulate all of the senators whom I mentioned a moment ago for the excellent presentations and contributions they made to this debate in this chamber.

Honourable senators, it is a reality that as governments have cut spending on higher education by 27 per cent over the last decade, tuition fees have more than doubled in most parts of the country. Rising tuition has resulted in climbing debt. University graduates carry an average debt of more than $25,000. Some leave school owing $60,000 or more.

Some Hon. Senators: Shame!

Senator Graham: What are the solutions? We know that many OECD member nations such as Austria, Denmark, France, Germany and Ireland charge no tuition fees to students. Can our country feasibly follow such an example?

With regard to debt repayment, we have heard much of the Australian model of an income-dependent repayment plan in which payments are pegged to a person's annual income and collected through the income tax system, helping to ensure that graduates are not bankrupted by loan repayments.

As we continue the debate on Senator Atkins' motion, we will, no doubt, hear many more comparative examples in the days ahead. We will begin to sketch out the outlines of an iceberg of epic proportions with regard to the problems facing our post-secondary institutions. We know that apart from the critical avalanche of increasing costs and the financial crisis facing many of our students, our struggling universities must prepare for a dramatic increase in new enrolments. It is estimated that our post-secondary institutions face a 20 per cent increase in the demand for places over the next decade.

Along with the tremendous strain that soaring enrolments will have on infrastructure and services, we must factor in the need to hire up to 32,000 new full-time faculty by the year 2010 to deal with the crunch in enrolments, as well as to replace those professors going into retirement.

The federal government does have a strong role to play in the strategic consideration of the problems that lie ahead.

The Hon. the Speaker: Honourable senators, I regret to interrupt, but the 15-minute time limit has expired. Is leave granted to allow the honourable senator to continue?

Hon. Senators: Agreed.

Senator Graham: Honourable senators are aware that, due to a variety of means, ranging from transfers under the CHST and Canada Student Loans, the federal government has contributed about half of the cost of post-secondary education in Canada. Clearly, the Senate of Canada is well placed to consider the strategic choices best applicable to difficult problems in our post-secondary education.

I should now like to recount some of my concerns over the so-called investment deficit in Atlantic Canadian universities.

While Atlantic Canada represents only 7.8 per cent of the Canadian population, in terms of higher education Atlantic universities have 12 per cent of the nation's faculty and 12 per cent of Canada's university graduates. They play a key role in the region's economy, yielding 2.2 per cent of the region's GDP compared to a Canadian average of 1.4 per cent. They also rank consistently high in terms of national comparisons of Canadian institutions. However, we have seen a major deficit in R&D funding over the last few years as governments have cut back on expenditures for this critical sector.

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When we consider the funding provided by industry, a key partner of development funding across the country, we are struck by how little R&D has grown in Atlantic Canada. An important new report on the state of Atlantic Canada's post-secondary institutions, entitled "Catching the Wave of Research Investment," concludes that "between 1989 and 1995...industry has increased its level of R&D funding in the Atlantic by a mere 2 per cent as compared with a national increase of 47 per cent over the same period."

Let's put this in context. Honourable senators are aware that our universities are key contributors to our knowledge-based society. In Canada, we are comparatively more reliant on this sector than other countries, as almost one quarter of our R&D is done in our universities. That is the highest proportion of the G-7 countries.

There is a serious deficit in Atlantic Canada, based largely on the fact that we lack central Canada's strong industrial and non-governmental base, which are the primary sources of the wave of research investment that we see in other parts of the country. The problem is exacerbated by the fact that Atlantic Canada is proportionately more reliant on its university sector than other parts of the country.

As universities across Canada and the United States begin to face faculty shortages over the next few years, there are some fears that the Atlantic region will be less capable of gaining the stars of the academic community. Therefore, Atlantic universities are particularly concerned that the federal government's new 21st century chairs do not locate primarily in central Canadian universities. Such an approach would give central Canadian universities an unfair advantage in attracting the best and brightest from Atlantic universities and graduates.

In this context, the submission by the Council of Nova Scotia University Presidents, dated November 22, 1999, to the Voluntary Planning: Fiscal Management Task Force raises several alarms. The submission is aptly entitled, "Nova Scotia: A Knowledge Economy Dropout?"

The authors of the report argue that no region can catch up to the leaders in the knowledge economy by just working harder and longer and faster. We must work smarter, but smart costs money, as well.

We are told that the steady decline in government grants to our universities has produced a calamity of the highest order. The report tells us that Nova Scotia spending per university student, when compared with the other provinces, ranks last. That lag is particularly worrisome insofar as financial support for the R&D sector is concerned. The Council of Nova Scotia University Presidents appropriately identified R&D as "our lifeline to the future."

Given the number of firms in Nova Scotia with active R&D efforts, it has fallen to the heroic efforts of our struggling universities to carry the torch.

The great fear in my part of the world, honourable senators, is that that lifeline to the future will be lost. Another fear is that Nova Scotia's best teachers and researchers will be poached by post-secondary institutions in central Canada and the United States, institutions that have greater research and development funding and core university facilities. We are confronted with the truly tragic prospect that the university system of which we are so proud, and which consistently leads national comparison polls, will suffer a brain drain of unimaginable consequences to the future of the Atlantic region at large.

The 1997 Senate inquiry touched upon this problem, and it has, as predicted, worsened in the intervening few years. The authors pointed out that federal funding for research and development tied to partnership arrangements between our post-secondary institutions and our corporations helps to enlist the latter sector's support, and that this is highly desirable. However, given the uneven geographic distribution of major corporations in Canada, the results of an undue emphasis on such partnerships would almost certainly cause an increase in the comparative disadvantage to which our regional institutions are already subject.

The recommendation from the Special Senate Committee was:

...that the federal programs of assistance to post-secondary education be structured in such a manner as to ensure...the elements of the overall program of support recognize and compensate for the significant regional disparities that characterize our post-secondary system; and that the support programs endeavor to derive the maximum benefit from realizing the full potential of all of our colleges and universities.

The recent federal budget has given a much-needed jumpstart to some of the difficulties faced by our universities. The increased funding for the Canada Foundation for Innovation and the increase in the tax exemption for scholarships are preliminary steps, as is the Government of Canada's recent announcement to put in place alternative arrangements to ensure the uninterrupted delivery of the Canada Student Loans programs.

I believe that Atlantic universities will benefit from the increased federal commitment to research through the Chairs for Excellence initiative that was announced recently. This is a program that does not require matching funds from the provinces and, therefore, is a step in the right direction.

Honourable senators, the fact that we live in a world where change is the only reality is well understood by all of us. Continuous learning is the engine of the knowledge economy. Universities must transform themselves as the race for the future taxes their resources to the limit. Governments across the board must work closely together and in partnership with industry in eliminating all impediments to unleashing the talents of our young people.

As we respond to Senator Atkins' timely intervention on education, we only begin to touch upon the enormous questions posed by an Information Age that has meant one of the greatest transitions in recorded history.

We speak of national goals. What are those national goals? Do we speak of education just in terms of a population that is skilled in high technology, or do we speak of education as a balance between skills and values? What kind of students are we trying to educate in this country? Are these to be information-literate workers who think only in terms of corporate norms? Are these to be applied scientists and formidable talent in the laboratory but having an inability to communicate effectively with others? Do we use new technology to disseminate information more effectively, or should our post-secondary institutions be equally dedicated to using new technology to get students involved in political activity, or honouring history or things like spiritual growth? To which values do we as a nation adhere? What values will we carry with us as we travel through cyberspace?

I believe that the classroom is where technology must acquire a human face. The classroom must be where our young people come to understand that winning is about much more than market share. It is about value, service, and commitment to our roots. Honourable senators, that is the Canadian way, and that really is the miracle of the red maple leaf.

Yes, the classroom. Just think of our children, our grandchildren, and the wonderful new generation called the eco-boom — a huge population wave and the demands they are now making on all of our systems of higher learning. How do we start to think about them? How do we think about the energized explosive dynamism of this analytical, smart, savvy, innovative, curious generation — a generation empowered by the most important learning mechanism in recorded history, the Internet? It is an interactive generation with a globally oriented ease with digital tools. It is a wave that has only begun to spell a sea change in the way we think about higher education.

I thank Senator Atkins for the good sense that he had in calling our attention to the problems and challenges facing our post-secondary institutions. I have opened some other windows in this debate, which I believe must be explored further in this chamber and indeed across the country.

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I believe the future of this country will be closely bound to the creation of a fair society that is united in the opportunity to access information, a true democracy, a knowledge democracy. We must build that knowledge democracy from coast to coast to coast, ensuring that all of our citizens, all of our universities and all of our young people have the right and the means to travel the information highway first class.

On motion of Senator Andreychuk, debate adjourned.

The Budget 2000

Statement of Minister of Finance—Inquiry—Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Lynch-Staunton calling the attention of the Senate to the Budget presented by the Minister of Finance in the House of Commons on February 28, 2000.—(Honourable Senator Stratton).

Hon. Terry Stratton: Honourable senators, I rise to speak to the last federal budget presented by Finance Minister Paul Martin.

When middle-class Canadians hear glowing reports about the economy, and when they read that the TSE has been at record levels, many of them wonder why all this is passing them by. They wonder when they will begin to reap the benefits of a stronger economy.

Honourable senators, they will have to wait a few more years, as the government delivers nickel-and-dime tax relief now, with a promise of more to come by 2004. After all, if taxes were cut faster, where would the government ever get the money for that fountain in Shawinigan? We cannot continue to subject Canadians to tax levels that are way out of line with those in the United States and other G-7 countries. Last year, the Prime Minister told Canadians who do not like our taxes that they should leave the country. That is a wonderful statement to make to Canadians, especially when he is building his fountain. That kind of statement reflects the views of the world in the 1960s and the 1970s.

Thirty years ago, the brain drain was to Canada, the result of a robust economy and an unpopular American military policy. Add in factors like health care and crime, and Canadians thought long and hard about leaving.

Honourable senators, attitudes and circumstances have changed since the 1970s. The factors that dissuaded our best and brightest from moving to the U.S. a generation ago hold little water today. Their new employer will pay their health insurance costs, providing them with access to a system where waiting lists are measured in days, not months or years. They are likely to live and work far away from the inner city areas where crime is a problem. The Vietnam War and the anti-American sentiments that it spawned are unknown to today's graduates.

Honourable senators, before the budget, our personal income taxes were the highest in the G-7. After the budget, they are still the highest. The tax relief in this budget is too little and it does not come fast enough. One example of that is the $100 increase in the basic personal amount this year. That actually works out to a tax cut of just $17 per year, or 33 cents per week. You cannot even buy a cup of coffee for that amount of money. Eventually, by 2004, the basic personal amount will rise to $8,000, mostly because of inflation.

Honourable senators, what is the justification for taxing Canadians with incomes as low as $8,000 — a sum that falls below what one would earn working for minimum wage just about anywhere in the country? As a start, the basic personal amount should go up to at least $10,000, if not more.

Then there is the increase in the start of the middle tax bracket to $30,004 from $29,590 for this year. That will save one the grand sum of 72 cents a week — again, not enough to buy a cup of coffee. All that has happened is that inflation is no longer putting taxpayers into a higher tax bracket. What the government has really done is cancel a tax hike, through deindexing. Many of the tax cuts in this budget are really promised for sometime after the next election. The party that vowed to scrap the GST, if elected now, promises tax relief after the next election.

With respect to the Child Tax Benefit, I welcome the government's general direction in raising the Child Tax Benefit and its supplement, the National Child Benefit.

Some Hon. Senators: Hear, hear!

Senator Stratton: However, there are two major flaws in the design of this supplement that should be fixed. If we were to add up all the clawbacks and the taxes faced by larger families, we end up with tax rates that reach 70 per cent for families with three children, and well in excess of 80 per cent for those with more than three children. Let us look at the math. Let us start with the example of a family with three children earning $28,000 per year in 2002. Let us assume that the breadwinner earns $1 extra of income.

First, there is the 17 per cent federal income tax. My wonderful province of Manitoba, like many others, will move to a new tax system, where taxes will be based on income rather than on federal taxes payable. Let us assume for the sake of argument that the result is much as it is today, that is, where provincial taxes are 47 per cent of federal taxes. The end result will not change by more than a few percentage points.

Applying Manitoba's 47 per cent tax rate to the 17 per cent federal tax equals 8 per cent of each additional dollar of income. Then there is the provincial surtax of 2 per cent of net income. Thus, all the federal and provincial income taxes now add up to 27 per cent. Then there is the 5 per cent clawback of the GST credit. We are now at 33 per cent. If you have three children, the new improved National Child Benefit will be clawed back at the rate of 33.4 cents for every dollar one earns above roughly $22,000, bringing the total bite up to 66 per cent. Payroll taxes will take another 5 per cent of tax credits. Add it all up, honourable senators, and you will see that 71 cents out of every additional dollar earned is lost to taxes and clawbacks over an income range of about $4,000.

That is pretty astounding. The government will go into your pocket for 71 cents of the extra dollar you earn.

The National Child Benefit supplement is designed so that it is fully phased out for families with three or fewer children by the time their income hits the start of the second tax bracket, and by the time the clawback of the main Child Tax Benefit begins.

What about a family with four or more children at $31,000 after the National Child Benefit changes are in place? The family is now in the second federal bracket, at the new lower rate of 24 per cent. If you gross up the 24 per cent bracket by the current Manitoba rate, it brings the income tax bite to 35 per cent. Let us add on, as well, the 2 per cent Manitoba surtax and the 2 per cent crop in the value of Manitoba's current tax reduction for low- and modest-income families. This brings us up to 39 per cent.

If we add to that the 33.4 per cent National Child Benefit clawback, the 5 per cent GST credit clawback, the 5 per cent Canada Child Tax Benefit clawback and the 5 per cent for payroll taxes, the grand total is 87 per cent, or 87 cents out of every extra dollar earned.

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I admit that this really high rate only applies to a very narrow range of about $2,600, but if a person is in that range, it just kills them. What is the logic in creating a tax system where Canadians with very modest incomes are losing up to 87 per cent of the additional money they earn by working a few extra hours of overtime? A person might be better off to refuse the money.

Honourable senators, the intent of the Canada Child Tax Benefit is good — to deliver assistance to families that most need it. However, there is a very serious design flaw in the way larger families are treated. Perhaps the government should take a serious look at fixing it. I hope honourable senators agree.

Hon. Wilfred P. Moore (The Hon. the Acting Speaker): Honourable senators, it is six o'clock. Is it the wish of the Senate that I not see the clock?

Hon. Senators: Agreed.

Senator Stratton: Honourable senators, you will have to forgive me. Other senators went very long in their speeches today, and I think they understand that.

Uncompetitive corporate taxes are also a problem, honourable senators. Forty years ago, we had a resource-based economy protected with high tariff walls. If you wanted those resources, then you paid high taxes as the price of operating here. If you wanted to sell goods to Canadians, high tariffs would encourage you to manufacture goods in Canada for the Canadian market, although Canadians paid for this through higher prices and although export markets were a hard sell. It was an era when money did not instantly flee the country at the click of a mouse.

This is not the 1960s, honourable senators, and tax rates matter more than at any other time in our history. We cannot afford to set our corporate tax rates 7.5 percentage points above the OECD average. This budget reduces that gap by one percentage point, with only a promise of further reductions by 2004.

Unfortunately, the world will not stand still and wait for Canada to catch up. Businesses in this country are fighting for markets around the world. Could we imagine sending athletes to the Olympics with equipment from the 1960s? Of course not. Yet that is how this government expects our businesses to face the competition.

Let me turn to Employment Insurance. Honourable senators, "Payroll taxes are a barrier to jobs." If you do not believe me, ask the Minister of Finance. I just quoted his 1994 budget. This year the government expects to collect some $18 billion in EI premiums but expects to pay out only $12 billion in benefits. The Employment Insurance actuary tells us that there is enough money in the EI account to cover a full-blown recession. Premiums could easily drop below $2 and still meet the cost of running the program. For that matter, given that revenues are one-third higher than premiums, then those premiums could be rolled back one-third, to about $1.60, and still meet program costs this year. Over the course of a year, the difference between a premium of $1.60 and a premium of $2.40 equals more than a day and one-half wages for the average worker. For a day and one-half, that worker works for EI and it goes into a surplus.

Yet, honourable senators, another $7 billion is about to be added to the $27 billion that is already in the EI account, bringing the cumulative total to $35 billion by next March 31.

The government tells us that the EI premium rate over the next few years will fall by a dime per year, to reach $2 in 2004. That is not good enough. This year alone, that other payroll tax we pay, the CPP — or if you live in Quebec, the QPP — went up by 40 cents for every $100 of earnings. Back when this government was elected, Joe Lunchbucket, earning an average wage, paid $753 per year in CPP premiums. This year, Joe will pay $1,330. By the time 2003 rolls around, his premiums will hit $1,688. That is a tax hike of more than $900 since 1993. However, for some strange reason, we do not see this in any of the government's tax cut examples. We see the government assuming an EI reduction that may or may not happen, but we do not see any mention of higher CPP premiums.

Honourable senators, in theory, EI premiums are set by the Employment Insurance Commission at a rate that will allow the EI account to meet the cost of paying benefits over the long run. The law requires the commission both to look back at the money in the account and to look ahead at the charges that could be potentially made against that account. It is getting harder and harder for them to keep rates up given the current legal parameters. If the government does not do something soon, it will be forced to cut premiums a lot faster and a lot deeper than it wants to.

There is an clue buried on page 62 of the budget, where it says:

The government is closely examining the recommendations of the House of Commons Finance Committee on future premium rate setting.

Honourable senators, what did the Commons committee say? It said that the government should forget about the money already in the EI account when premiums are set because "premium rates well below current levels would be required." The Commons committee went on to say:

The EI rates should be set on the basis of the levels of revenues needed to cover program costs over a business cycle looking forward and not take into account the level of the cumulative surplus or deficit, nor any interest associated with that cumulative position.

In other words, the government is about to say, "Forget about the $35 billion in the EI account. It does not belong to the people who put it there. We are going to pass a new law so that we can keep the EI premiums high."

There is one further point that needs to be made about this cumulative EI surplus of $35 billion. To date, the government has repaid a grand total of $6 billion of the outstanding federal debt. The only way the government was able to reduce the debt was by charging Canadians too much for Employment Insurance. The money that Canadians pay for EI is no longer a premium in any sense of the word. It is a tax, pure and simple.

Honourable senators, let me turn for a moment to health care. Again, I will draw an analogy to the 1960s because it has been that long since Canadians have felt as vulnerable about their health care system as they do today. Forty years before medicare, you felt vulnerable because major medical problems meant financial ruin. Today you feel vulnerable because of the lineups and doctor shortages created by an underfunded health system. If you need a hip replacement, you feel vulnerable because of the one- or two-year wait. If you live in a small town, you feel vulnerable because there is no longer a doctor in town; he or she has retired or has taken the Prime Minister's advice and left the country. Even in many urban areas you feel vulnerable if you need to see a doctor on an ongoing basis, because if your general practitioner leaves town or retires, you may have to wait months to find a doctor who is taking new patients, and that is a real difficulty.

The government is making a lot of noise about the money that this budget put back into the health care system, but suppose for a moment that rather than slash cash transfer payments to the provinces for health, education and social assistance by more than $6 billion per year, the federal government had simply frozen them at 1993 levels. If that had happened, then even counting the money that has been paid back, transfers would still be about $3.3 billion more than the federal government plans to send the provinces this year. In fact, if you go year by year and compare the level of cash transfers for health, education and social assistance each year to 1993 levels, and then add it all up, it amounts to a shortfall of some $35 billion between 1993 and the end of the current planning horizon in 2004 — $35 billion!

In my province of Manitoba alone, the shortfall amounts to some $160 million this year compared to 1993. The total cash shortfall for Manitoba, from 1993 to the end of the current planning horizon, 2004, adds up to $1.7 billion.

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I do not see any kind of long-term plan to save health care. I see nothing in the budget that will shrink waiting lists. I see no serious intent on the part of the federal government to sit down and work with the provinces to fix the problem.

Let us look at the longer-term aspects of the fiscal plan. The government does not have a long-term fiscal plan. We are given only two-year forecasts, in spite of the Auditor General's call for longer-term projections to give us a better idea of where the government finances are headed given such long-term pressures as an ageing population.

The government says it will achieve a debt-to-GDP ratio of 50 per cent by 2004, but we are not shown how it plans to get there. The only thing we know with certainty is that at the end of the two-year planning horizon set out in the budget we will be down to 55 per cent. Honourable senators, I think a little bit of math can tell us exactly how the government intends to reach that target in 2004. If the economy grows by 3.4 per cent a year, including inflation, for three years beyond 2001, then the debt-to-GDP ratio would fall to 50 per cent in 2004 even if not a dime of the debt were repaid. It will not fall because the debt is falling.

The Hon. the Speaker: Honourable Senator Stratton, I regret interrupting you, but your 15-minute speaking time has expired.

Senator Stratton: I require two more minutes.

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

Hon. Senators: Agreed.

Senator Stratton: The promise to achieve a 50 per cent debt-to-GDP ratio is misleading, as it is really a promise to do nothing about the overall debt. It is deplorable because you are doing nothing. Yes, the GDP ratio is dropping to 50 per cent, but you have not done anything. You have paid $6 billion on it. We will still be at $577 billion in debt five years from now, and we will still be paying more than $40 billion a year to service the debt, a debt that will never be repaid.

Perhaps that is why the government is only showing us numbers for two years — it wants to hide the lack of real progress in debt reduction. We need longer-term fiscal forecasts, not just to see what is happening to the debt but to get a better idea of the money going into and out of the government's coffers.

To provide but one example of why we need this information, everyone knows that the money given to Defence in this budget will not pay for the badly needed helicopters and other equipment that the government will, I hope, soon announce. It would be helpful to see the five-year plan so that, when the announcement comes, we can see this in an overall budgetary context.

In closing, honourable senators, I urge the government to reconsider the rather timid pace at which it plans to reduce taxes. Canadians need significant tax reductions this year, not four years from now. Let us put money back into Canadians' pockets, make Canada a competitive nation, keep Canadians in Canada, help create jobs, and help those students with those ridiculously high debts.

Senator Robichaud: With a good Liberal government, we will do that.

On motion of Senator DeWare, debate adjourned.

Energy, the Environment and Natural Resources

Motion to Authorize Committee to Review Canadian Environmental Protection Act Withdrawn

On the Order:

Resuming debate on the motion of the Honourable Senator Spivak, seconded by the Honourable Senator Andreychuk:

That the Standing Senate Committee on Energy, the Environment and Natural Resources begin immediately a review of the Canadian Environmental Protection Act as unanimously recommended in the Committee's Seventh Report dated September 8, 1999, and tabled in the Senate the following day.—(Honourable Senator Kinsella).

Hon. Nicholas W. Taylor: Honourable senators, this arose about a week ago. I believe there was agreement at that time that perhaps it should be removed from the Order Paper. However, it was decided that the matter would remain on the Order Paper until Senator Spivak was here because the leadership on the other side wanted to talk to her. She has been in and out a number of times in the last 10 days. I wish to ask Senator Kinsella whether or not he has obtained her permission to remove this from the Order Paper.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I have been deputized by my colleague to act in her stead in this matter, although she is right here. I will return to her the mandate that was requested.

Senator Taylor: Honourable senators, while Senator Spivak was away, we debated the motion on the Order Paper dealing with the Standing Senate Committee on Energy, the Environment and Natural Resources. We pointed out a recent news release from the Minister of the Environment and Natural Resources that indeed showed they are doing a study, a review, just as the committee of which Senator Spivak and I are members had asked them to do. It was thought at that time that, that being so, perhaps the item should be removed from the Order Paper.

Hon. Mira Spivak: Honourable senators, I certainly agree to withdraw the motion.

The Hon. the Speaker: It was requested by Honourable Senator Spivak that this motion be withdrawn from the Order Paper? Is it agreed, honourable senators?

Hon. Senators: Agreed.

Motion withdrawn.

Review of Anti-Drug Policy

Motion to Form Special Senate Committee Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Nolin, seconded by the Honourable Senator Cohen:

That a Special Committee of the Senate be appointed to reassess Canada's anti-drug legislation and policies, to carry out a broad consultation of the Canadian public to determine the specific needs of various regions of the country, where social problems associated with the trafficking and use of illegal drugs are more in evidence, to develop proposals to disseminate information about Canada's anti-drug policy and, finally, to make recommendations for an anti-drug strategy developed by and for Canadians under which all levels of government to work closely together to reduce the harm associated with the use of illegal drugs;

That, without being limited in its mandate by the following, the Committee be authorized to:

- review the federal government's policy on illegal drugs in Canada, its effectiveness, and the extent to which it is fairly enforced;

- develop a national harm reduction policy in order to lessen the negative impact of illegal drugs in Canada, and make recommendations regarding the enforcement of this policy, specifically the possibility of focusing on use and abuse of drugs as a social and health problem;

- study harm reduction models adopted by other countries and determine if there is a need to implement them wholly or partially in Canada;

- examine Canada's international role and obligations under United Nations conventions on narcotics and the Universal Declaration of Human Rights and other related treaties in order to determine whether these treaties authorize it to take action other than laying criminal charges and imposing sentences at the international level;

- explore the effects of cannabis on health and examine whether alternative policy on cannabis would lead to increased harm in the short and long term;

- examine the possibility of the government using its regulatory power under the Contraventions Act as an additional means of implementing a harm reduction policy, as is done in other jurisdictions;

- examine any other issue respecting Canada's anti-drug policy that the Committee considers appropriate to the completion of its mandate.

That the Special Committee be composed of five Senators and that three members constitute a quorum;

That the Committee have the power to send for persons, papers and records, to examine witnesses, to report from time to time and to print such papers, briefs and evidence from day to day as may be ordered by the Committee;

That the briefs received and testimony heard during consideration of Bill C-8, An Act respecting the control of certain drugs, their precursors and other substances, by the Standing Senate Committee on Legal and Constitutional Affairs during the Second Session of the Thirty-fifth Parliament be referred to the Committee;

That the Committee have the power to authorize television, radio and electronic broadcasting, as it deems appropriate, of any or all of its proceedings;

That the Committee be granted leave to sit when the Senate has been adjourned pursuant to subsection 95(2) of the Senate Rules; and

That the Committee submit its final report not later than three years from the date of its being constituted.— (Honourable Senator Hays).

Hon. Anne C. Cools: Honourable senators, it had been my intention to speak to this particular motion. I am very mindful of the fact that Senator Nolin is eager to move the motion along and to have the various variables and elements set into motion.

Having said that, honourable senators, I must say that I thank Senator Nolin for his initiative in bringing this matter forward. I should like to place on the record very fairly and squarely that I think that senators' initiatives in the vast area of the study of public welfare are welcome and are to be supported and encouraged.

It had been my intention to bring forward some questions in relation to the subject matter that perhaps Senator Nolin might bear in mind when the committee gets going; however, I can bring those issues forward once the committee is in operation.

Having said that, I am prepared to hand the floor to Senator Nolin so that he may go ahead and move his motion. I thank him for his initiative.

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

[Translation]

Hon. Pierre Claude Nolin: Honourable senators, I move that the motion be adopted.

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

Hon. Senators: Agreed.

Motion agreed to.

[English]

(1820)

National Defence

Motion to Establish Special Senate Committee to Examine Conduct 
of Personnel in Relation to the Somalia Deployment and the Destruction of Medical Records 
of Personnel Serving in Croatia—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Kinsella:

That a Special Committee of the Senate be appointed to examine and report on two significant matters which involve the conduct of chain of command of the Canadian Forces, both in-theatre and at National Defence Headquarters and its response to operational, decision making and administrative problems encountered during the Somalia deployment to the extent that these matters have not been examined by the Commission of Inquiry into the Deployment of Canadian Forces to Somalia and allegations that Canadian soldiers were exposed to toxic substances in Croatia between 1993 and 1995, and the alleged destruction of medical records of personnel serving in Croatia;

That the Committee in examining these issues may call witnesses from whom it believes it may obtain evidence relevant to these matters including but not limited to:

1. The present Minister of Defence in relation to both matters;

2. Former Ministers of National Defence in relation to both matters;

3. The then Deputy Minister of National Defence in relation to both matters;

4. The then Acting Chief of Staff of the Minister of National Defence in relation to the Somalia occurrence;

5. The then special advisor to the Minister of National Defence (M. Campbell) in relation to the Somalia occurrence;

6. The then special advisor to the Minister of National Defence (J. Dixon) in relation to the Somalia occurrence;

7. The persons occupying the position of Judge Advocate General during the relevant period in relation to the Somalia occurrence;

8. The then Deputy Judge Advocate General (litigation) in relation to the Somalia occurrence; and

9. The then Chief of Defence Staff and Deputy Chief of Defence Staff in relation to both occurrences.

That seven Senators, nominated by the Committee of Selection act as members of the Special Committee, and that three members constitute a quorum;

That the Committee have power to send for persons, papers and records, to examine witnesses under oath, to report from time to time and to print such papers and evidence from day to day as may be ordered by the Committee;

That the Committee have power to authorize television and radio broadcasting, as it deems appropriate, of any or all of its proceedings;

That the Committee have the power to engage the services of such counsel and other professional, technical, clerical and other personnel as may be necessary for the purposes of its examination;

That the political parties represented on the Special Committee be granted allocations for expert assistance with the work of the Committee;

That it be empowered to adjourn from place to place within and outside Canada;

That the Committee have the power to sit during sittings and adjournments of the Senate;

That the Committee submit its report not later than one year from the date of it being constituted, provided that, if the Senate is not sitting, the report will be deemed submitted on the day such report is deposited with the Clerk of the Senate.—(Honourable Senator Bryden).

Hon. John G. Bryden: Honourable senators, I will speak briefly to this motion which stands in my name. There are a number of reasons that we should not proceed with this motion, including the fact that it has been around for quite a long time in various forms and would need to be reworked.

The most important reason is that I believe that time has passed us by in that many people are no longer readily available to us as witnesses. Many things have happened within the Department of National Defence. Perhaps it would be better to assess how we are doing at a later time.

Therefore, it is not my intention to support this motion, which I believe is the position of the majority of senators on this side.

On motion of Senator Kinsella, debate adjourned.

Legal and Constitutional Affairs

Motion to Authorize Committee to Meet During Sitting of the Senate Withdrawn

On the Order:

That the Standing Senate Committee on Legal and Constitutional Affairs have power to sit at 3:30 p.m. on Wednesday next, April 12, 2000, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

Hon. Lorna Milne: Honourable senators, I ask for the consent of the Senate to withdraw this motion.

The Hon. the Speaker: Is it agreed, honourable senators, that this motion be withdrawn from the Order Paper?

Hon. Senators: Agreed.

Motion withdrawn.

[Translation]

Transport and Communications

Motion to Authorize Committee to Meet During Sitting of the Senate Withdrawn

On the Order:

That the Standing Senate Committee on Transport and Communications have power to sit at 5:30 p.m. on Wednesday, April 12, 2000, for its study of Bill S-17, respecting Marine Liability, and to validate certain bylaws and regulations, even though the Senate may then be sitting and that rule 95(4) be suspended in relation thereto.

Hon. Lise Bacon: Honourable senators, I seek leave of the Senate to withdraw this motion.

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

Hon. Senators: Agreed.

Motion withdrawn.

[English]

Bill to Give Effect to the Requirement for Clarity 
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Motion to Instruct Committee to Amend—Point of Order—Debate Adjourned to Await Speaker's Ruling

Hon. John Lynch-Staunton (Leader of the Opposition), pursuant to notice of April 10, 2000, moved:

That upon committal of Bill C-20 to committee, that the committee be instructed to amend Bill C-20 to rank the Senate of Canada as an equal partner with the House of Commons, and report back accordingly.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I rise on a point of order with respect to this motion. It is my duty to draw to the attention of the house a matter which may not be in order.

The question raised by Motion No. 61, moved by Senator Lynch-Staunton, is whether the Senate can mandate a committee to do something that it already has the power to do. According to the authorities I have read, an instruction to a committee must be permissive.

This is analogous to a matter on which His Honour ruled on November 30, 1995, in respect of a motion by Senator Carstairs, then deputy leader of the government, as referenced on page 2391 of the Debates of the Senate of that day. In His Honour's ruling, he quoted Speaker Deschatelets' ruling given on March 10, 1971. The quotation refers to Bourinot as follows:

Many precedents are referred to by Bourinot...whereby instructions to committees were declared to be irregular because the committee concerned already had the power to take the action indicated.

Honourable senators, there is a possibility, if not a probability, that the Senate may create a special committee for the purposes of studying Bill C-20. Alternatively, it may be referred to a standing committee or to a Committee of the Whole. Those are three possibilities and, with some imagination, there may be more.

In any event, I believe that this motion is out of order for the reasons stated. I do not wish to dwell on the matter because I think it is well covered in a ruling given fairly recently by His Honour.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I believe that the motion is very much in order in terms of the form and, more important, the matter. This is not at all similar to the case to which my honourable friend has made reference. This is the first time in the history of this chamber that there is a piece of legislation before us which challenges the authority and the consent of this chamber. This is a very special piece of legislation, and this motion addresses this unprecedented attack, which will diminish the Senate of Canada.

In the debate to date at second reading of Bill C-20, honourable senators from both sides have indicated their serious concern with this legislative proposal to lessen the Senate of Canada during our watch. We must place a clear direction before the committee, be it Committee of the Whole, a special committee, or the Standing Senate Committee on Legal and Constitutional Affairs. Given the very special and unique circumstance with which we are faced in this chamber, we must be able to give that instruction to whatever committee studies this bill to address this serious threat to the Senate of Canada.

In examining whether this motion is in order, as I believe it to be, I believe that His Honour must consider whether the bill itself is intra vires to the Senate. I argue that it is ultra vires to the Senate; that we do not have the authority to examine a piece of legislation that has as its objective the breakup of Canada. A bill such as this has never before been introduced into Parliament. I do not think there is a parliamentary basis upon which it is properly before this house.

Consequently, His Honour may want to consider whether the bill is intra vires. Of course, if he finds that it is ultra vires, he will not have to worry about the first part.

Senator Lynch-Staunton: Honourable senators, I should like to draw your attention to paragraph 896 in Beauchesne's Parliamentary Rules & Forms, which reads:

(1) When the motion to concur is moved, the House may refer the report back to the committee for further consideration or with instructions to amend it in any respect.

Some will say that the bill has yet to be referred. The motion takes that into consideration by saying that once it is referred, the house will give instruction.

(1830)

I think it is quite appropriate both to give an instruction and to order the committee to report back accordingly. There might be some quarrel as to the timing, but I do not think there is quarrel as to the instruction. The timing factor was taken into consideration when it says "upon committal of Bill C-20." If it is not committed, there are no instructions; once it is committed, then the instruction, depending on the decision of this house, will or will not be passed on.

Hon. Nicholas W. Taylor: Honourable senators, I wish to make a short comment.

Page 614 of Erskine May — and His Honour will probably want to go into this in more detail — concerning the amendment of an order of reference and instructions respecting committees in the House of Lords and other Parliaments goes into a fair amount of detail on what the chamber can do in altering instructions, changing the original order, and limiting a committee's powers or expanding powers. They are all found in the second paragraph of that page. I am sure His Honour would like to read that paragraph.

Senator Hays: The only new issue that has arisen is whether the bill is ultra vires the Senate. That is an unusual characterization. We hear it in the constitutional sense, in terms of the orders of government, either federal or provincial, but I have not heard it before in the context of Parliament.

The bill is, I would concede, not the run-of-the-mill type that we ordinarily receive here from the government. However, I would put it to His Honour and to honourable senators that it is not outside of the jurisdiction of Parliament, including this House of Parliament, obviously, to deal with a bill such as the one before us in Bill C-20. I wanted to clarify that, if it was a new concern, in addition to the arguments that we can only instruct permissibly to a committee and not mandate a committee to do something it has jurisdiction to do in any event.

Hon. Anne C. Cools: Honourable senators, this is unexpected for me. I find the matter to be quite interesting and to be one that is worthy of considerable and important debate. His Honour is being asked to decide on a point of order that is an important question of substance, not so much a question of order.

I should like to begin by stating that the Speaker is supposed to be the first and strongest supporter of the powers and privileges of the Senate. The second strongest supporter is supposed to be that minister of the Crown who, in this chamber, is designated as the Leader of the Government in the Senate.

The motion says precisely that "the committee be instructed to amend Bill C-20 to rank the Senate of Canada as an equal partner with the House of Commons, and report back accordingly." What we have before us is a point of order about Bill C-20. An important aspect of this motion and the question that the Speaker will need to answer — and it will be interesting to see how this is done — is whether or not Bill C-20 itself ranks the Senate "as an equal partner with the House of Commons." The essential question that is being brought forward in this motion is whether or not the Senate of Canada is an equal partner with the House. While this motion has not yet been spoken to, in essence, it is anticipating that the committee will find that Bill C-20 has deemed that the Senate is not an equal partner. This motion is asking the Senate to remedy that defect or that particular problem.

Honourable senators, I find this all very interesting because, on the first level, an instruction to a committee is always in order. In respect of instructions to committee at the particular stage which is second reading, that is also in order. The question, then, that is before His Honour is whether or not it is in order for a senator to suggest that Bill C-20 is problematic because it inherently claims that the Senate of Canada is not an equal partner in the Constitution of Canada.

Honourable senators, when he takes this matter into consideration, I would ask His Honour to be strong and to differentiate between that which is out of order and that which is defective. There are motions that are defective, motions that are insufficient, and motions that are inadequate, but it is entirely possible for insufficient, defective, and inadequate motions to be quite in order. I would submit to His Honour that if he were to rule every inadequate, defective or insufficient motion in this place out of order, he would be ruling a battery of motions out of order. I put forward that distinction before honourable senators, namely, the difference between "defective" and "in order."

The next point that I should like to make is on the question of Bill C-20 and whether or not it is properly before us. I find this fascinating because the Supreme Court of Canada began by telling us that there is no law on the question of a legal right to secession. If there is no law on the question of a legal right to secession, then where does the law come from on which to found Bill C-20? That is very interesting indeed, honourable senators, because Bill C-20 is proposing to alienate the Senate from the Parliament of Canada. This is a most interesting process. I should like to put on the record section 17 of the Constitution Act, 1867, which reads:

17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and House of Commons.

Obviously, the Senate is indivisible from the Parliament of Canada. Section 18 of the British North America Act, 1867, reads:

18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the Members thereof.

The Constitution Act says very clearly that the Senate of Canada is a coordinate institution alongside the House of Commons. The question then becomes: How can it be that a simple bill of the House of Commons can abrogate the powers conferred by section 18?

The Hon. the Speaker: Honourable Senator Cools, I hesitate to interrupt you, but you are getting into the substance of the bill and not the point of order that is currently before the Senate.

Senator Cools: I did not think I was. I would be happy to stand corrected if I were, but the substance of the motion that is being asked to be ruled out of order is that "the committee be instructed to amend Bill C-20 to rank the Senate as an equal partner with the House of Commons..."

(1840)

What I am attempting to show very clearly is that if that motion is defective in some form or fashion, it is still in order and should be properly determined by debate within this chamber. In other words, the real question is, how are these conclusions reached? I would submit to honourable senators that these conclusions are best reached at the end of debate as an opinion of the chamber itself.

I will have much to say about the substance of the bill when we get there. It is very clear that we have overstretched our reach just a tad and perhaps the debate should come on as to whether Bill C-20 is consonant with the law of Parliament. In the long run, the law of Parliament will fuel any decision that His Honour must make. The question is whether this motion is consonant with those rules by which this Senate chamber ought to guide itself. In other words, is the motion consonant with the interests of the Senate and with the constitutional role that was imposed upon honourable senators in the Senate?

As I said before, honourable senators, I am not speaking on the substantial matter of Bill C-20 itself, but Senator Lynch-Staunton has raised a very important question which is itself the propriety of the Senate's extinction or alienation from Bill C-20.

Senator Lynch-Staunton: I was not going to rise, honourable senators, except I heard Senator Taylor quote from Erskine May regarding House of Lord procedures. I should like to go right to the source and quote from the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, the 1994 edition, page 116, under the heading "Instructions". It reads:

Instructions to any committee on a bill may be moved after the Second Reading. Instructions may be either permissive, that is, enabling the committee to do something that it could not otherwise do, such as divide the bill into two; or mandatory, that is, prescribing a certain course of action, such as the omission of certain clauses, or the consideration of clauses and schedules in an order other than that of the bill. Instructions to extend the scope of bills are undesirable.

But not disallowed.

The argument, from our point of view, is that we are allowed to instruct the committee to take a mandatory course of action. Where I might agree that we are in a grey area is on the timing. The Lords say after second reading. Beauchesne is not as specific but seems to imply waiting until instructions are sent to committee before proposing such a motion. I would have no objection to that at all, whether we do it now or later. However, I want clarity on — if I can use that word — our right to do so.

Senator Hays: I have one other comment, based on the interventions of Senators Cools and Kinsella.

My view is that His Honour should be discouraged from ruling on something that is not before him in terms of the motion we are talking about — in other words, the orderliness of the bill itself.

[Translation]

Hon. Pierre Claude Nolin: Honourable senators, this time the Speaker's decision will be an easy one, and I will tell you why.

If he decides that Senator Lynch-Staunton's amendment is not in order, he is ignoring the Constitution of Canada. I am sure that that is not what he wishes to do.

However, if Senator Lynch-Staunton's amendment were to the effect that the Senate is not an equal partner of the House of Commons, I am sure that that would not be to the Speaker's liking either.

It is up to the Speaker to uphold section 17 of the Constitution which says, under the heading "Legislative Power", that there shall be one Parliament for Canada, consisting of the Queen, an upper house styled the Senate, and the House of Commons. It will therefore be a very easy decision for the Speaker.

[English]

The Hon. the Speaker: If no other honourable senator wishes to speak, I thank all honourable senators who have participated in this debate. It is always interesting to have previous decisions of the Speaker brought into the mix. At times, it is somewhat disconcerting. However, I shall take the whole matter under advisement.

Nisga'a Final Agreement Bill

Motion for Disposal of Third Reading

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, pursuant to rule 38, I move:

That, in relation to Bill C-9, to give effect to the Nisga'a Final Agreement, no later than 3:15 p.m. Thursday, April 13, 2000, any proceedings before the Senate shall be interrupted and all questions necessary to dispose of third reading of the Bill shall be put forthwith without further debate or amendment, and that any votes on any of those questions be not further deferred; and

That if a standing vote is requested, the bells to call in the Senators be sounded for fifteen minutes, so that the vote takes place at 3:30 p.m.

The Hon. the Speaker: Honourable senators, as was indicated earlier, this was an agreement between the Honourable Senator Hays and the Honourable Senator Kinsella. Does the Honourable Senator Kinsella second the motion?

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): I do, honourable senators.

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

Hon. Senators: Agreed.

Motion agreed to.

Adjournment

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

Hon. Dan Hays (Deputy Leader of the Government), with leave of the Senate and notwithstanding rule 58(1)(h), moved:

That when the Senate adjourns today, it do stand adjourned until Wednesday, April 12, 2000, at 1:30 p.m.;

That at 3:30 p.m. tomorrow, if the business of the Senate has not been completed, the Speaker shall interrupt the proceedings to adjourn the Senate;

That should a division be deferred until 5:30 p.m. tomorrow, the Speaker shall interrupt the proceedings at 3:30 p.m. to suspend the sitting until 5:30 p.m. for the taking of the deferred division; and

That all matters on the Orders of the Day and on the Notice Paper, which have not been reached, shall retain their position.

Motion agreed to.

The Senate adjourned until Wednesday, April 12, 2000, at 1:30 p.m.

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