Hon. Ross Fitzpatrick: Honourable senators, yesterday the U.S. lumber
coalition announced that it is petitioning for outrageous countervailing duties
of 40 per cent and anti-dumping duties from between 28 to 38 per cent against
Canadian softwood lumber.
As honourable senators know, this is a counterfeit claim. The softwood lumber
industry is one of the most important and technically advanced industries in
Canada, and its success has fairly penetrated the markets of the United States.
The forest products industry makes the largest contribution to Canada's
wealth, as measured by the gross domestic product, and is a major employer to
all of Canada. Directly and indirectly, it is responsible for close to 1 million
In my province, British Columbia, forestry is still the number one industry
and it is responsible, directly and indirectly, for 175,000 jobs. British
Columbia has the largest number of sawmills of any province and these mills
employ close to 22,000 workers. Sawmills in British Columbia's interior are more
competitive than their counterparts in the U.S – and, I must add, without any
subsidies. In 1999, B.C. produced 13.4 million board feet of lumber, and that
year 47 per cent of the lumber exported to the United States came from British
Columbia. The total value of B.C. softwood lumber exports in 1999 was $7.5
The view of Canada's industry from coast to coast has been that the Softwood
Lumber Agreement should not be renewed, with the goal of achieving real free
trade. The action taken yesterday in no way represents free trade but smacks of
blatant protectionism. I am pleased to see the Minister of International Trade
respond forcefully to defend the interests of our softwood lumber industry and
fight aggressively for free trade against these unfounded allegations of
subsidies by the U.S. coalition.
First, Canadian provinces do not subsidize their lumber industry. For the
past 20 years, timber pricing by our provinces has been subject to three
countervail duty investigations. Each time, the U.S. has been unable to sustain
the U.S. industry's allegations of subsidies. In fact, Canada's victory last
Thursday on the drilled-notched lumber dispute with the U.S. under the Softwood
Lumber Agreement is further proof not only that international trade rules work
but also that the Government of Canada defends our industry vigorously.
I am pleased to say that this government is continuing to consult industry
and all provincial governments to defend the interests of Canada's softwood
lumber industry –
The Hon. the Speaker pro tempore: Honourable senator, your time
Hon. Isobel Finnerty: It is my pleasure today, honourable senators, to
draw to your attention the recent Canadian National Cross- Country Ski
Championship in Valcartier, Quebec. The competition of both the junior national
and senior national divisions took place at the same time.
To compete in the nationals, athletes from across Canada were required to
qualify in their own province or territory, after having participated in a
gruelling winter-long series of competitions. Each province and territory send
their top skiers to this important annual Canadian sporting event.
Honourable senators, I am very proud to salute the team from my own hometown
of Timmins, the Porcupine Ski Runners, under the expert direction of coach Lorne
Lutha. The team members are David Foster, Matt Copps and brothers Robb Martin
and Chris Martin. This team placed sixth in the ski competition. However, of
particular note is the first-place victory of 14-year-old Robb Martin in the
Long Distance Classical event. His gold medal at the junior nationals is both a
tribute to his hard work and to the community of Timmins, where many fine
athletes have been trained.
Honourable senators, perhaps I may be forgiven by you if I mention something
personal about Robb Martin and his brother and teammate, Chris Martin. Robb and
Chris are the grandsons of my brother, Ross Church of Timmins. This makes me
their very proud great aunt!
Hon. Mabel M. DeWare: Honourable senators, we all feel a stirring of
hope when the first daffodil blooms after a long winter and, with them, the
promise of a glorious summer.
In New Brunswick, it will probably be fall before we see the daffodils.
For cancer victims, their families and friends, hope is magnified many times.
Daffodils also bloom with a promise that cancer can be beaten. They have been
adopted as a symbol of hope by the Canadian Cancer Society.
Honourable senators, I am pleased to draw the attention of this chamber to
the fact that April is Cancer Awareness Month in Canada. In April each year, the
Canadian Cancer Society undertakes a variety of public education activities in
support of cancer prevention, detection and treatment. One in three Canadians
will develop some form of cancer in his or her lifetime, so the importance of
these events cannot be underestimated.
April is also a major fundraising focus for the Canadian Cancer Society whose
work is funded entirely by donations. The donations that we are asked to give
during Cancer Awareness Month are put to excellent use all year long.
Thanks to our contributions, the Canadian Cancer Society is the largest
single provider of funds for cancer research in the country. They also enable us
to provide a wide range of public education programs and patient services and,
perhaps more than anything else, they allow us to give such precious hope to so
Honourable senators, I am proud to be wearing a ribbon provided by the
Canadian Cancer Society to show support for Cancer Awareness Month in Canada,
and I encourage all senators to do the same, as well as to show our support in
Hon. Jean-Robert Gauthier: Honourable senators, in 1984, when the new
Minister of Communications, Marcel Masse, was visiting his department, he was
shown some of the caricatures from the National Archives collection. When he
asked whether these had ever been exhibited, and was told they had not, he
expressed surprise that these witnesses to the times in which they were created
were left in the shadows. As a result, the National Archives acquisitions
program was born.
On January 26, 1986, a meeting was held in Toronto with most of Canada's
editorial cartoonists. Discussions centred on the preservation and dissemination
of editorial cartoons and the possibility of creating a Canadian Centre of
An advisory committee mandated to define an acquisitions policy was struck.
Later, representatives were selected from among the cartoonists at the inaugural
meeting of the Association of Canadian Editorial Cartoonists, held in Winnipeg
on June 26 and 27, 1986.
After two changes of ministers, the Canadian Centre of Caricature was opened
on June 6, 1989 at 136 St. Patrick Street, in Ottawa, in my former riding of
Ottawa-Vanier. Over the years, it housed numerous exhibitions, produced a
collection of the works of Norris and Lapalme, and received numerous school
tours. Gradually, the centre became a popular tourist attraction.
During that time, there were differences of opinion at the National Archives
because of the irreconcilable objectives of preservation on the one hand and
exhibiting of the collection on the other. With a change of government, coupled
with the departure of the originator of the project after the election, an
accumulation of inventory, due to staff cuts, and the budget reductions of the
time, the acquisitions program was cut back and the centre closed its doors in
the mid 1990s.
With the creation of the National Portrait Gallery in the former U.S.
embassy, right across from Parliament Hill, we feel that it is finally time to
exhibit some of the caricatures that number among the 20,000 original works in
the National Archives collection.
We should be proud to be able to exhibit the work of such accomplished
artists as Sid Barron, J.W. Bengough, Roland Berthiaume (Berthio), Ed Franklin,
Jean-Pierre Girerd, Norman Hudon, Raoul Hunter, Tom Innes, Henri Julien, Robert
Lapalme, Duncan Macpherson, Ed McNally, Len Norris and Doug Wright, to name but
American museums show no hesitation in showcasing their caricatures. Mexico
has its own museum, the Museo de la caricatura.
Since the new gallery is still at the fledgling stage, we trust that it is
not too late to include this totally original art form from the editorial pages
of Canada's newspapers, the editorial cartoon.
The Hon. the Speaker pro tempore: Honourable senators, before
moving on to the next item on the Order Paper, I should like to draw attention
to the presence of pages from the House of Commons, who are here this week as
part of the exchange program with the Senate.
Jennifer Hefler is pursuing her studies in the Faculty of Arts at the
University of Ottawa. Her major is communications, and she comes from Halifax,
Megan Holwatt is enrolled in the Faculty of Arts at the University of Ottawa,
where she is majoring in history. Ms Holwatt is from Kensington, Prince Edward
Daniel O'Brien is enrolled in the Faculty of Public Affairs and Management at
Carleton University. Mr. O'Brien is from St. John's, Newfoundland and Labrador.
Welcome to the Senate. I hope that your week here will be valuable.
The Hon. the Speaker pro tempore: Honourable senators, I have
the honour to table the report of the Canadian Human Rights Tribunal for the
year 2000, pursuant to subsection 61(3) of the Canadian Human Rights Act.
The Hon. the Speaker pro tempore informed the Senate that a
message had been received from the House of Commons with Bill C-8, to establish
the Financial Consumer Agency of Canada and to amend certain Acts in relation to
Bill read first time.
The Hon. the Speaker pro tempore: Honourable senators, when
shall this bill be read the second time?
On motion of Senator Robichaud, bill placed on the Orders of the Day for
second reading two days hence.
Hon. Donald H. Oliver: Honourable senators, I have a question for the
Leader of the Government in the Senate. It relates to the Minister of State for
One of the precious and unique things about Canada is our diversity. Canada
is a country of 30 million people who speak many languages from different
cultures. This phenomenon is often referred to as multiculturalism. The Minister
of State for Multiculturalism, Hedy Fry, has been under fire from the media and
all Canadians, generally, over her allegations of cross-burning incidents in
Prince George and Kamloops, British Columbia. Is the minister not aware that
this controversy is doing irreparable harm to Canadian diversity and
multiculturalism? If the minister's allegations are unsupportable, a large
number of innocent Canadians have been wronged. They are entitled to more than a
When will the government show some leadership and either produce the evidence
in support of the minister's allegation or accept her resignation?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
clearly, the honourable senator is absolutely correct when he talks about the
diversity of people in this nation, who speak many different languages. That is
the heartbeat of the multicultural nature of our nation.
The minister has made apologies in the House. As well, the minister has
apologized to the people of Prince George and Kamloops. One hopes that this can
be put aside now so that the honourable minister may continue her important work
in the areas of multiculturalism and the status of women.
Senator Oliver: Honourable senators, if in fact there is no evidence
of cross burnings of the nature and type described by the minister, then
hundreds of thousands of innocent people have been wronged, and it behooves the
minister to resign if that evidence cannot be produced. If Ms Fry will not
resign, will the Prime Minister not show some leadership in requesting her
Senator Carstairs: Honourable senators, we have to be careful about
attaching the description "hundreds of thousands of people." Prince George is
not quite that large. However, that is not the point. It does not matter how
many people she offended, the minister misspoke herself and, as a result, she
made a full and unqualified apology.
Senator John Lynch-Staunton: Where is the letter from the mayor?
Hon. John Buchanan: Honourable senators, I have a question for the
Leader of the Government in the Senate. Over the next number of weeks,
negotiations will take place on the softwood lumber crisis. I know that the
minister is aware of the fact that this industry represents literally thousands
of jobs in Atlantic Canada. The industry contributes in excess of $1 billion to
our economy. The Maritime accord, which was negotiated in the 1980s, and I took
part in those negotiations, exempted the Atlantic provinces in respect of the
Softwood Lumber Agreement. The reason was quite simple: In excess of 75 per cent
of our exports to the United States come from private woodlot owners as opposed
to government-owned land. Therefore, the stumpage subsidies that apply in other
parts of Canada, mainly in British Columbia, do not exist, for all intents and
purposes, in the Atlantic provinces.
However, we are now included in the whole mix. The Maritime premiers, the
Maritime Lumber Bureau and members of Parliament agree that we must not be lost
in the shuffle in respect of those negotiations. We must enjoy the continued
exemption, because we are not involved in the subsidy war.
Honourable senators, will the honourable minister tell us this afternoon that
the Maritime provinces will be included in negotiations and that Minister
Pettigrew will ensure, to the best of his ability, that the exemption remains?
Hon. Sharon Carstairs (Leader of the Government): I thank the
honourable senator for his question. The correct word is "exemption" because
that was the deal that was struck. However, in reality, it is the Atlantic
provinces that have managed it correctly – they are, if you will, the original
free traders in the whole issue of softwood lumber. We should be congratulating
them. Although the word "exemption" is technically correct, I should like to
think that they are the model, as opposed to the exemption, in this particular
We know that the Government of the United States has been petitioned by the
United States lumber industry. The United States government has not yet accepted
the complaint. The complaint would impose both countervails and anti-dumping on
the Canadian lumber industry. From the earlier review of the documents, it would
appear that the Atlantic provinces have been exempted from the countervails in
the petitions that have gone forward in the United States. However, they have
not been exempted from the anti-dumping that might result.
Honourable senators, we must continue to allow the minister to negotiate this
matter as best he can to ensure a free trade agreement from coast to coast. I
understand that Minister Pettigrew will make a further effort this week to meet
with his counterpart, when he is in Buenos Aires, and discuss putting in place a
special envoy in respect of this issue.
Senator Buchanan: Honourable senators, I am rather pleased with the
response from the minister. I would expect no less from the minister in that she
is a Maritimer. Although she does represent Western Canada, the honourable
minister has an excellent grasp of the situation, and there is no question about
All senators should recognize and understand that the minister said, "We
have been free traders for in excess of 100 years," primarily in the lumber
industry. There has been no argument from the United States. In fact, back in
the 1980s, the New England governors recognized immediately that the Atlantic
provinces should have an exemption because we had been free traders and we were
continuing to be free traders. I am confident that the minister will impress
upon Mr. Pettigrew the importance of continuing the exemption for Atlantic
Senator Carstairs: I thank the honourable senator for his comments.
Indeed, I was back home, if you will, in Nova Scotia and also in Prince Edward
Island over the weekend. The issue was addressed to me on several occasions, and
so I heard it from the honourable senator's constituents, to some degree, while
I was in my beloved Atlantic region of this country. I can assure him and his
constituents that I will continue to plead the case for Atlantic Canada, because
it is a just case.
Hon. Gerald J. Comeau: Honourable senators, I should like to continue
with the same questioning as that posed by Senator Buchanan. I was glad to note
that the subject of free trade had, in fact, been raised. The Maritimes have had
to rely on free trade since Confederation, not only in lumber, but in fish and
other products as well.
Honourable senators, I have a question about the Maritime accord, which had
exempted Atlantic Canada from the kinds of actions that have been taken by the
Americans. I do not wish to suggest in any way that the other provinces are
somehow engaged in any kind of subsidy. However, there has been a dispute for
many years between the Americans and the Canadians on the subject of stumpage
fees and subsidies. Atlantic Canadians are being included in that discussion,
even though the Americans recognize that Atlantic Canadians are not involved in
any way. We ask, as Atlantic Canadians, that we return to the Maritime Accord
and remain exempt from the war that seems to be between the Western provinces
and the U.S.
Senator Carstairs: I thank the honourable senator for his question.
Since he made reference to fish, I will begin by saying that it is wonderful,
for those of us who come originally from Atlantic Canada and those of you who
are lucky enough to live there still, that the exports of fish and seafood
products reached a record high of $4.1 billion in the year 2000. That is yet
another example of the fact that Atlantic Canadians are doing things the right
In terms of the honourable senator's specific question in respect to softwood
lumber, the softwood lumber issue is one on which, four times now, we have used
the dispute settlement mechanisms established first in the Free Trade Agreement
and latterly in NAFTA. We have won every single time, yet we are constantly
bombarded by some interests south of the border – not all, but some – who say
that we are engaging in unfair trade practices. It is very clear that we must
say in the loudest possible terms that no matter where it is practised in
Canada, we are not engaging in unfair trade practices in the lumber industry.
Hon. Senators: Hear, hear!
Senator Comeau: I understand the government's strategy at this point
is either we hang together or we hang separately, because that is a Canadian way
of approaching problems. I would suggest that Minister Pettigrew might want to
meet with Atlantic premiers to discuss this question of having a coast-to-coast
position on this matter, judging from some of the comments those premiers have
made in recent days. I would ask the minister to pass that thought on to
Senator Carstairs: I thank the honourable senator. I understand that
Minister Pettigrew has been in touch with the interests, both government and
lumber, within the Atlantic region, but I will certainly encourage him to
increase those contacts, if the honourable senator thinks that is necessary.
Hon. Brenda M. Robertson: Honourable senators, we do not want to pit
one part of Canada against another. However, I wish Minister Pettigrew would
stop saying that all premiers agree with his position, as was enunciated a few
times this weekend. At that same time, we are reading comments in the press from
the premiers of the Maritimes indicating that they have been quite upset about
the whole situation and are asking for some recognition of their historic past
in this regard. I do not know why the minister is all-inclusive in his
statements when it is not true.
Senator Carstairs: Honourable senators, I must say that I have not
seen any reports of the minister having made comments which would impact
specifically on individual premiers. I have heard him say that the industry
officials are hanging tough together, if you will. If he has made such comments,
then I will bring to his attention that he does not have universal support.
Hon. Jack Austin: Honourable senators, there is some tone in this
discussion that is disturbing me. We have an agreement under the World Trade
Organization with respect to our entitlement to trade treatment. We have an
agreement with the United States under NAFTA with respect to our entitlement to
trade treatment. These are agreements with the Government of Canada, whose job
is to reconcile Canadian interests and put them forward in the best shape and
nature that it can. This happens not only with respect to lumber but also with
respect to a wide variety of products, and it is in the nature of the federation
of Canada that parts of Canada are represented as a collective interest.
I do not deny for a minute that the Maritime provinces have had special
treatment, and I have no quarrel with it, but that is the decision of the United
States. Canada has one trade policy with respect to softwood lumber, and it is
up to the United States to comply with its undertakings and its agreements. I
hope we are not hearing anything in this chamber that runs to any other
Minister Pettigrew has said that we have a "rules-based system and we are
using it." That is Canada's entitlement, and I trust that Senator Carstairs is
not, in her answers that are pleasantries to the Atlantic provinces, in any way
moving away from Minister Pettigrew's position.
Senator Carstairs: Honourable senators, I thank the honourable senator
for his question. I think I made it clear that the position of the federal
government is that of a Free Trade Agreement from coast to coast and that that
Free Trade Agreement is enforceable. Each time we have tried to enforce it, we
have won, in relation to the manner in which the Americans would treat softwood
lumber – no matter where it comes from in Canada, but particularly that from the
province of British Columbia. The Americans consistently argue that there is
something wrong with the system practised in the province of British Columbia.
That is not the position of the minister. That is not the position of the
government. The position of the government is that we have traded fairly with
the United States. We will continue to trade fairly with the United States, and
we expect them to abide by the agreements that they have signed.
Senator Austin: In that case, on what basis would we ask for exemption
for the Maritime provinces?
Senator Carstairs: An exemption has, in fact, existed respecting the
Maritimes since the 1980s, but is no longer in effect. In the 1980s, because of
pressures from the United States, we did enter into a softwood lumber agreement,
and at that time we exempted the Maritimes from that particular agreement,
Instead, the Maritime provinces operated under what was then known as the
Maritime Lumber Accord.
Senator Austin: The Americans exempted the Maritime provinces, and one
of their reasons for so doing was to create the distinctions which would found
the arguments that they are now making against the western forest industries. I
hope the minister will take that into account.
Senator Buchanan: Honourable senators, I do not want to get into an
argument or discussion with my dear friend from British Columbia, but the
comment that the Atlantic provinces have had special treatment is totally
incorrect. We fought this battle back in the 1980s. It does not constitute
special treatment for the Atlantic provinces. It is the right kind of exemption
for the Atlantic provinces because we do not have stumpage subsidies, as they
may have in other areas. I am not saying they do; I am simply saying they may
have. That was recognized back in the 1980s when we signed the Maritime Lumber
Accord and were exempted from the Softwood Lumber Agreement. That does not
constitute special treatment for the Atlantic provinces. Therefore, the
exemption should continue, not as special treatment but as the right kind of
treatment, if you will, for the Atlantic provinces.
I ask that question. Am I right or wrong?
Senator Carstairs: Honourable senators, I feel like Solomon's baby,
being pulled in two parts at this particular moment.
I must indicate to the honourable senator that I do not think it has ever
been proven that there are, in fact, stumpage subsidies anywhere in Canada, and
that is why we have consistently won the cases whenever we have put our position
forward in this regard.
The position of the government is very clear. It is the same position that I
know is advocated by all members on the other side of the chamber, and that is
that we have a Free Trade Agreement, we have the NAFTA, we have WTO agreements,
and they should be respected.
Hon. Gerry St. Germain: Honourable senators, my question is to the
Leader of the Government in the Senate as well, and it pertains to the Softwood
Lumber Agreement. I think Senator Fitzpatrick succinctly described the position.
I urge senators to watch what we say here. Anything that is said here will be
taken down and used against us in the negotiations.
All honourable senators should practise extreme caution in what they say
during these delicate times, because the ongoing negotiations are critical to
all of Canada. This agreement is a Canadian agreement, not an eastern agreement
or a British Columbia agreement.
Hon. Gerry St. Germain: Honourable senators, my question relates to
the fact that there has been a free flow of logs back and forth across the
border. Logs are one of the contentious issues on which we are asking for free
trade, yet there is a question of restrictions. Does the Leader of the
Government in the Senate have a response on this particular issue?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I thank the honourable senator for his question. I agree with Senator St.
Germain in the first instance; we must all be cautious. We are in delicate times
with respect to the United States and these negotiations and, just as their
words can be used against them, our words can be used against us. I thank the
honourable senator for that cautionary note.
As far as his specific question about the free flow of logs, I do not have an
answer but I will try to get one for the honourable senator.
Hon. Ross Fitzpatrick: Honourable senators, my question is for the
Leader of the Government in the Senate.
Is it not true that as of March 31 the Softwood Lumber Agreement expired,
that we are now in a period during which no agreement is in place, that the U.S.
coalition has filed a petition upon which the U.S. government has not acted, and
that during this period of time, and subsequently, the Government of Canada will
be representing the industry from coast to coast in Canada?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
how nice to be able to answer, yes.
Hon. J. Michael Forrestall: Honourable senators, my question is for
the Leader of the Government in the Senate. Will Mr. David Miller – about whom
the leader and I have had some discussion in recent days – be absenting himself
from all discussions with respect to the Maritime Helicopter Project?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I thank the honourable senator for his question, and I am delighted that I do in
fact have some answers for the honourable senator this afternoon with respect to
Mr. Miller, as you know, began duties with the Prime Minister's Office
yesterday. He, like all other staff in the Prime Minister's Office, is governed
by a conflict of interest code. Mr. Miller will fully respect that code, which
requires him to meet all the requirements of conflict of interest, as well as
the post- employment code. He has already met with officials of the office of
the Ethics Counsellor, and as of yesterday, the Lobbyists Registration Branch,
of course, reflects that Mr. Miller has terminated his relationship.
Senator Forrestall: Honourable senators, Mr. Miller may have
terminated his relationship, but that association continues and the conflict, as
the honourable leader is well aware, can work in two directions. I gather that
the minister has no answer, then, to the direct question of whether or not Mr.
Miller will be absenting himself from any discussions with respect to the
ship-borne helicopter replacement program.
The Leader of the Government in the Senate has mentioned the conflict of
interest code. I would ask that she take all honourable senators into the most
recent confidence concerning employees of the Prime Minister's Office and table
that document containing the conflict of interest code.
Senator Carstairs: Honourable senators, I thank the honourable senator
for his question. I do not know if the conflict of interest guidelines are a
public document. If they are I will make them available to the honourable
Honourable senators, I do think that we must be careful. We talked several
minutes ago about being careful with our words. David Miller is a man of
integrity. I have known David for 20 years. I have no reason to question his
integrity to any degree whatsoever. If Mr. Miller has signed a conflict of
interest code, I believe that Senator Forrestall can rest assured that he will
Hon. Jean-Robert Gauthier: Honourable senators, my question is for the
Leader of the Government in the Senate. In a press release which I have just
received, the Prime Minister announces that he has set up a task force on
modernizing human resources management in the public service. The Prime Minister
has also appointed Ranald A. Quail, now Deputy Minister of Public Works and
Government Services Canada, as Senior Advisor to the Privy Council Office to
head the task force.
Further on, we read that Mr. Quail will have access to an advisory group that
will comprise expertise from the private, public and academic sectors. Will MPs
and senators be involved in this search for a solution to the modern problems
facing our public service?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I thank the honourable senator for his question. I cannot give him a specific
reference to the fact that parliamentarians will be involved. They will
certainly be involved in any debate or discussion on any legislative changes
that would take place as a result of the review.
I would hope that the individual who has been asked to head the task force,
Ranald Quail, will use all potential resources, and certainly part of those
resources are members of Parliament and members of this institution.
Senator Gauthier: Honourable senators, a number of studies have been
done since 1979, but none of them have involved the government and none have
effectively addressed the problem of managing public servants.
Are MPs and senators not capable of giving their point of view or advice in
this review of human resources management? We did so for the Public Service
Staff Relations Act. Why, in 2001, could we not review this and other pieces of
legislation, such as the Public Service Employment Act, and the financial
institutions legislation? We count in this process.
Senator Carstairs: Honourable senators, the task force is being set up
to support the Honourable Lucienne Robillard in her capacity as minister
responsible for human resources management reform. She is a member of
Parliament. She is also a member of cabinet and a member of the same caucus to
which Senator Gauthier belongs. I would think that she would welcome the
intervention of members of Parliament and senators from all political parties so
that she can make human resources management reform a fundamental reform issue
for the year 2001.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, there are media reports that the government is about to launch a
health study, possibly led by former Premier Romanow of Saskatchewan. Will the
minister confirm those reports?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
like the honourable senator, I have read the same media stories, but I cannot
Senator Kinsella: Perhaps then, honourable senators, we are in time.
The Standing Senate Committee on Social Affairs, Science and Technology,
under the able leadership of Senator Kirby and Senator LeBreton, have had that
very topic under study, and considerable financial and human resources have been
invested by honourable senators in this chamber.
Would it not make sense for the government to call upon the Senate committee
to continue with its work? Why is the government even considering establishing
an alternative committee?
Senator Carstairs: Honourable senators, when I learned of that
possibility, in the same way as Senator Kinsella did, through media sources, I
immediately advised my colleague Minister Rock, who is back on his feet and
functioning, that the work of the Senate committee was first-class and that the
tabling of their first report last week was greeted with great public interest.
Regardless of how the government decides to proceed, I hope that the Senate
committee will be encouraged to continue its excellent work.
Senator Kinsella: Honourable senators, are we dealing with a turf war
between the Minister of Health and the Chairman of the Standing Senate Committee
on Social Affairs, Science and Technology? This committee is already well along
in its work. As the minister has indicated, its interim report has been tabled
in the house. Why would the Minister of Health be considering establishing
another committee? That seems to me to be redundant, at the least, and to be
Senator Carstairs: Honourable senators, I can confirm that there is no
turf war going on between the Senate committee and the Minister of Health. To
reiterate what I said, I wanted the Minister of Health to know very clearly of
the excellent work that had been done by the Standing Senate Committee on Social
Affairs, Science and Technology and of the desire of senators to continue with
that process. I wanted that to be carefully considered before any final decision
was made on any announcement that might be forthcoming.
The Hon. the Speakerpro tempore: Honourable senators, the 30 minutes
allotted for Question Period have expired. I have one more senator on my list.
Do I have leave to recognize that senator?
Hon. Mira Spivak: Honourable senators, my question is directed to the
Leader of the Government in the Senate and has to do with José Bové, who was
invited by the Council of Canadians to speak at a teach-in at the People's
Summit in Quebec.
Immigration officials say that Mr. Bové requires a special ministerial permit
to enter Canada due to his recent conviction in France for vandalizing
McDonald's – in my opinion not an unmitigated evil. He was sentenced to three
months in jail, but the case is under appeal.
Does the minister know what the government's position is on this matter? It
has been reported that some activists are on a list of people being prevented
from entering Canada simply because they are activists.
What is the mandate under the Immigration Act, or any other act, for refusing
permission for these people to enter Canada?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I can outline the process that any individual would follow. The Canada Customs
and Revenue Agency has primary responsibility for protecting our borders. When
authorities at the border, be they Customs officials or Immigration officials,
believe that additional scrutiny is required, they undertake that scrutiny.
Those who are genuine visitors are allowed into the country. However, let us not
misunderstand. CIC is mandated to protect the health and safety of Canadian
society by preventing entry of those who pose a danger to the public, or who are
likely to engage in criminal activity in Canada. If that is the determination
made by the individuals who process the entry of visitors to Canada through our
border points, those people will indeed be denied entry to Canada.
Senator Spivak: Honourable senators, the minister is therefore
confirming that there is a list at Customs of people who are activists and will
probably not be allowed to come into the country.
Hon. Mira Spivak: Further in regard to the summit, honourable senators
may have seen the article in The Toronto Star about plastic bullets. Plastic
bullets have been approved for use by the RCMP and a very substantial order for
them has been placed. Plastic bullets are considered to be less lethal with less
potential for causing death than conventional police weapons. They are designed
to crack ribs and cause people pain.
What are the rules of engagement? Can the RCMP and the Sûreté du Québec
determine the tactics that will be used? You can well imagine that it is very
possible that innocent, peaceful protesters will be injured. In Vancouver,
someone was injured very badly by this sort of weapon.
Is this within the realm of the legislative purview of the Government of
Canada, or is it beyond? What sort of direction can the government issue to the
RCMP and the Sûreté du Québec, or is the government prevented from giving
direction? The police forces have placed a substantial order for this equipment
for use in Quebec City.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
to reply to the honourable senator's opening statement about the existence of a
list of activists, to my knowledge there is no such list. Each individual
crossing the border will be examined in exactly the same way as anyone crossing
the border is examined. However, a judgment call may well be made that a certain
person poses a danger to the security of Canadians. If, in the judgment of the
person doing the investigation, an individual does pose a danger, that
individual will not be allowed into the country.
With respect to the use of plastic bullets, the RCMP has confirmed that they
will have a whole range of equipment, including plastic bullets which, as the
senator has indicated, have the potential to be less lethal than regular
bullets, which is a good thing.
Let us be clear on the government's position: Canadians, and even visitors to
the country, have a right to protest peacefully. If the demonstrations are
peaceful, there will be no need for any of our police authorities to use any of
the weapons at their disposal. Those weapons, be they night sticks, shields or
plastic bullets, will only be used if violence erupts.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I have three delayed answers. The first is in response to the question
of Senator Forrestall, raised on March 20, 2001, regarding the Solicitor
General, allocation of dedicated radio band for police forces; the second is in
response to a question raised by Senator Comeau on March 22, 2001, regarding
Fisheries and Oceans, East Coast, proposal to split fishing zones into native
and non-native areas; and the third is in response to a question raised by
Senator Andreychuk on March 22, 2001, regarding Zimbabwe.
(Response to question raised by Hon. J. Michael Forrestall on March 20,
The RCMP, along with other police agencies across Canada, participates in
numerous fora with Industry Canada, to promote and protect public safety
interests related to radio frequencies.
There are ongoing discussions to dedicate radio frequency bands to allow
for the development of communications infrastructures for use by police
services across the country.
In fact, this is an issue under review, not just in Canada but
internationally as well. There is an ongoing initiative consisting of an
international survey to evaluate the needs for world-wide common radio
spectrum for public protection and disaster relief.
Let me assure the honourable senator that, in conjunction with other
government departments and international counterparts, the RCMP is actively
examining all of the aspects concerning this issue with a view to supporting
and enhancing the public safety interests of all Canadians.
(Response to question raised by Hon. Gerald J. Comeau on March 22, 2001)
Senator Gerald Comeau has raised a question regarding splitting fishing
zones into native and non-native zones.
The federal government has not proposed, nor is DFO discussing separate
fishing zones for native and non-native fishers. This was stated clearly by
DFO Parliamentary Secretary, Lawrence O'Brien, noting that the "proposal to
split the zones is definitely not the policy of DFO."
DFO has always advocated that it is important for Aboriginal and
non-Aboriginal fishers to work together. They live and work in the same
communities and should coexist within the commercial fishery.
Senator Comeau also raised concerns about the involvement of non-Native
fishers in the negotiation process. Mr. Gilles Theriault was appointed
Associate Federal Fisheries Negotiator specifically for the purpose of
consulting with industry and others to ensure their interests are reflected in
fisheries negotiations, under Mr. James MacKenzie.
DFO's primary objectives for the Atlantic fishery remain conservation,
practical fishing arrangements with First Nations and an orderly fishery for
On February 9, the Government of Canada announced a two-track strategy to
respond to the Marshall decision. Negotiations will continue with Mi'kmaq and
Maliseet communities in Atlantic Canada to conclude one to three year fishing
agreements within the DFO process. Treaty and Aboriginal rights will be part
of the longer-term process under DIAND.
(Response to question raised by Hon. A. Raynell Andreychuk on March 22,
- Canada's position on the worrisome situation in Zimbabwe is well known.
- The Minister for Foreign Affairs and the Secretary of State for Latin
America and Africa issued a statement of Canada's concerns with Zimbabwe's
current situation on March 15, 2001.
- The Canadian Government is concerned about the recent events that took
place in Zimbabwe and especially what we perceive as very negative trends in
the country, including both judicial issues and political violence .
- The 1991 Harare declaration pledged the Commonwealth and its countries to
work with continuous vigour to protect and to promote fundamental political
values, including democracy, the rule of law and the independence of the
- Canada has called upon the Zimbabwean government to respect the rule of
law and to ensure that the rights of all Zimbabwean citizens are fully
- Canada is working through the Commonwealth Ministerial Action Group
(CMAG) to bring international attention to bear on the problems of governance
- In this way we will bring the concerted pressure of the international
community on the Zimbabwe Government to respect the principles of the Harare
Indeed, the Minister for Foreign Affairs attended a meeting in London of
the Commonwealth Ministerial Action Group on 19/20 March, and supported the
decision of that Group to arrange a Ministerial Mission to Zimbabwe, to
highlight the situation there and to bring international pressure on the
Hon. Pierre De Bané moved the third reading of Bill S-4, to harmonize
federal law with the civil law of the Province of Quebec and to amend certain
Acts in order to ensure that each language version takes into account the common
law and the civil law.
He said: Honourable senators, Bill S-4 is the first of a series of bills that
will be drafted under the federal government's program to harmonize federal law
with the civil law of the Province of Quebec.
The purpose of the program is to ensure that each linguistic version of
federal law takes into account the civil law and the common law traditions.
The process which led to the introduction of Bill S-4 is rooted in the Policy
for Applying the Civil Code of Quebec to Federal Government Activities, 1993,
and the Policy on Legislative Bijuralism, 1995, both of which were developed and
implemented by the federal Department of Justice.
Bill S-4 represents an innovative approach to legislative drafting. Canada is
in the unique position of having two legal traditions and two official
languages. Recognizing these realities is the challenge that Bill S-4 addresses.
Bill S-4 also forms part of a series of actions designed to implement the
commitments made in the resolutions on the distinct character of Quebec society
adopted by both Houses of Parliament in December 1995.
Everyone remembers when, in December 1995, Prime Minister Jean Chrétien had a
resolution passed to recognize the distinct character of Quebec society.
These resolutions, and the Calgary declaration, recognize that Quebec is
distinct because, among other things, of its civil law tradition.
The amendments proposed by Bill S-4 to laws that refer to civil law concepts
coming under provincial jurisdiction have become necessary because of the major
changes made to civil law notions, concepts and institutions, with the
implementation of the new Quebec Civil Code, on January 1, 1994. These are the
first amendments to the 350 federal acts that were identified as using Quebec's
civil law as a backup and that will undergo a harmonization process in the years
Prior to the introduction of Bill S-4, extensive consultations were conducted
with the Quebec Department of Justice, the Canadian Bar Association, Quebec
Division, le Barreau du Québec, la Chambre des notaires du Québec and various
academics and practitioners were consulted. Their input has contributed to the
excellence and innovation in bijural drafting which has been recognized in Bill
Committee consideration of Bill S-4 has been considerable. During the course
of discussions, all had the opportunity to air their views. There was a high
level of discussion. Some of the issues canvassed include the following items.
The first was the need for and the essence of the harmonization program. The
second was the quality of the drafting techniques used. The third dealt with
recommendations on how to make federal legislation more user-friendly and more
readable for the average Canadian. The fourth was a clarification of the
difference between harmonization and uniformization. The fifth is the inclusion
of a preamble which is a factual yet symbolic message that also discusses the
appropriateness of the use of the expression "Quebec society." Sixth, there
are replacement provisions relating to marriage which better reflect the new
reality of the Civil Code of Quebec. Finally, there is the inclusion in the
Interpretation Act provisions which would, for the first time in a statute,
expressly provide for the statutory recognition of Canadian bijuralism and of
the complementarity of federal and provincial law in matters relating to
property and civil rights; as well as setting out the rules to facilitate the
interpretation of federal statutes using common law and civil law terminology.
In short, the witnesses heard by the committee were unanimous in their praise
for the aim of the harmonization program and the innovative drafting techniques
used. The discussion on the addition of rules of interpretation inspired the
suggestion that the bill's summary include an explanation on linguistic order in
This suggestion was accepted, and the explanation will be included when the
bill is reprinted. The amendments proposed by Bill S-4 testify to a concern to
appeal to Canada's four legal audiences: anglophones and francophones in civil
law and anglophones and francophones in common law, because in New Brunswick
common law may be practised in French.
Bijuralism and bilingualism are a fact of life in Canada. The harmonization
of federal legislation will, as a result of Bill S-4 and other bills that will
follow over the next few years, make our legislation more respective of both our
legal traditions. It will also make our legislation more understandable to all
Canadians by using the proper concepts and terminology familiar to Canadians, no
matter in which province they live, and whether the civil law or the common law
system governs their everyday lives. This will have the bonus effect of reducing
uncertainty relating to the application and interpretation of our laws and
thereby ensure equal access to justice by all Canadians.
Canada is a bijural country where both civil law and common law coexist. This
is what makes us different from our neighbours to the south. It is a clear
reflection of the principles on which our country was founded and which continue
to guide us, namely, although we jealously protect our individual heritage, we
have also learned that by providing mutual recognition and respect we can create
a unique Canadian flavour which is the envy of many countries around the world.
Honourable senators, I invite you to support Bill S-4 at third reading in
order to start the process of parliamentary approval needed at this first stage
of harmonizing federal statutes with the civil law of the Province of Quebec.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, will the Honourable Senator De Bané answer a question?
Senator De Bané: Of course, honourable senators.
Senator Kinsella: Honourable senators, the first preambular paragraph
of the bill states:
WHEREAS all Canadians are entitled to access to federal legislation...
I do not know what the phrase "to have access to federal legislation"
What is the meaning in the French version of:
...avoir accès à une législation fédérale...
The grammar makes no sense to me. Perhaps the honourable senator could
explain it. I do not know whether committee members looked at that paragraph,
and I do know if their attention was drawn to another paragraph. I simply do not
know what that English phrase means.
I am not certain that the French version of this sentence is more logical.
I do not understand what it means.
Senator De Bané: Honourable senators, the drafters pursued many
objectives. One of them, as I said in my speech – and the issue was canvassed
among the different experts – was how to make federal legislation more
user-friendly and more readable for the average Canadian who has not spent years
studying law. The idea is to draft legislation that will be enriched by both the
common law and the civil law, and bring some harmony to the drafting process.
Senator Kinsella: I do not know how one would parse that sentence. Let
me try to come at it another way.
I understand from the honourable senator's answer that the intent is to make
it easier for the average Canadian to understand what the laws of Canada
provide, but I find this phrase difficult to understand. I understand the word
"access," but I do not understand what the word "legislation" means, as it
is written in the preamble. How is there an access to legislation?
Senator De Bané: The remarks of the Deputy Leader of the Opposition
are very well put. I trust that the drafters of the next group of laws that must
be harmonized – because over 300 laws are to be harmonized – will take into
consideration what he has said.
My understanding is that the goal is to make laws more user- friendly, but I
understand that, taken literally, the phrase "access to legislation" can be
drafted in a more precise way than by using those terms.
Hon. Jerahmiel S. Grafstein: Honourable senators, Senator De Bané can
appreciate that the preamble does have an impact in the sense that, while one
would not disagree at all with the marvellous draftsmanship of the bill itself
or at least the legislatively enforceable part, the preamble is there for a
particular purpose. Obviously, if it raises some questions, my honourable friend
will understand that it is important that we have some understanding.
In support of this preamble, the honourable senator mentioned that a
resolution of this place talked about distinctive society; yet I do not see any
reference to the words "distinctive society" in the preamble. Is that correct?
Senator De Bané: The idea is there in that it, essentially, refers to
what was adopted by both Houses in 1995. The concept referred to in the preamble
is the one we adopted about six years ago.
Senator Grafstein: Let me turn the attention of honourable senators to
the second recital, where it talks about the Civil Code of Quebec. The words
"reflects the unique character of Quebec society" are used. Could the
honourable senator enlighten the Senate as to what the word "unique" means in
Senator De Bané: The beauty of our federal system, honourable
senators, is that it allows each province to develop according to its own unique
character. There is no doubt that the Fathers of Confederation have given Quebec
some unique characteristics, one of them being the Civil Code and another being
bilingualism. That does not in any way suggest that other provinces are not
unique as well. I see nothing objectionable there. The word "unique" was also
used by the premiers in the Calgary declaration.
Senator Grafstein: The description in the bill uses variations of the
word "harmony." The Oxford Dictionary defines "harmony" as a "Combination or
adaption of parts, elements, or related things, so as to form a consistent and
orderly whole; agreement, accord, congruity."
Honourable senators, I have no objection at all to the object of the bill. It
is very clear that the purpose of the bill is to harmonize the federal law.
When we turn to the second recital, the Oxford Dictionary defines the word
"unique" as "...the only one of a kind; having no like or equal;
unparalleled..." It does not use the word "equal."
Again, I think the object of the legislation is brilliantly drafted,
incorporating bijural concepts with the notion of Quebec having a unique
character that is unparalleled, unequalled and one of a kind. However, is there
not a logical inconsistency between the two terms based on narrow definitions?
Senator De Bané: Honourable senators, I respectfully submit to my
honourable friend that he must read the whole paragraph to understand in what
context the word "unique" is used. The paragraph reads as follows:
WHEREAS the civil law tradition of the Province of Quebec, which finds its
principle expression in the Civil Code of Quebec, reflects the unique
character of Quebec society;
It so happens that it is the only province that uses the Civil Code. By
referring to that unique character of Quebec – that is, that it is has a Civil
Code – is something that I find to be neither repugnant nor in any way
incompatible with what we are trying to achieve.
Honourable senators, on this point I wish to refer to Senator Beaudoin, whose
knowledge of law is not disputed. He brought a twist to the meaning of the word
"harmonization" – that is, putting both the common law and civil law together
to make one hybrid system – when he said: "No. That is not what we are trying
to achieve here. What we are trying to achieve is that the federal legal system
is respectful of both systems. That is it." I see my colleague nodding that
this is the interpretation and not the one that my learned friend is extracting
from The Canadian Oxford Dictionary.
Senator Grafstein: Honourable senators, my final question is this: My
honourable friend is proposing this bill for third reading. Is he satisfied, as
I am, that a preamble is not necessary, in the sense that the bill itself would
go forward without the preamble and the effectiveness of the bill would not, in
any way, shape or form, be diminished or challenged or changed? In other words,
a preamble is not a fortiori necessary to this particular bill but is quite
Senator De Bané: It all depends on where we sit. If we deleted that
preamble today, it would be an unwise thing to do.
Honourable senators, having been a member of Parliament for over 32 years, I
have seen a change of mentality in the province of Quebec over that period.
Today, federalists in Quebec – and I am referring only to them in this debate –
do look upon themselves as a Quebec society. That did not exist 33 years ago
when I was elected to Parliament. Today, however, I encounter on a daily basis
fellow compatriots from Quebec who are federalists, like you and me, who
consider themselves to belong to Quebec society. That does not create any
negative reaction in me. I know that, at the end of the day, they are proud of
being Canadian and living in a country that allows them to fulfil all their
potentialities and maintain their distinctive character. The more we are
generous with them and the more we encourage them to build a society within
Canada, the more we are doing the right thing. That is my opinion.
Senator Grafstein: Honourable senators, I have one final comment. I do
not want to put any adjectives to my position about one definition being
abhorrent or not. That is not the purpose of my question. My purpose is with
respect to clarity of interpretation, so that when you put a piece of
legislation of the importance of this one before this chamber, it is absolutely
imperative that the senators who are proposing this legislation ensure that the
preamble, if there is one, is so precise that there is no question in anyone's
mind as to what it means. Otherwise, we give judges a fishing trip to decide a
dispute that legislators may not provide.
I want to thank the honourable senator for his response. I am not calling
these terms abhorrent. They are not abhorrent, but I disagree with them because
of their lack of clarity. We are talking about legislation that is to be clear,
and if two or three senators come to a different conclusion here as to what a
word means in a preamble of this important bill, that raises serious questions
about the clarity of the bill itself.
Senator De Bané: Honourable senators, frankly, at the end of the day,
what is objectionable about saying that the Civil Code of Quebec reflects the
unique character of Quebec society? I see nothing in that statement that, in my
opinion, should bring honourable senators to have any reservation about it.
I think this is something that is, as we say about the American Constitution,
Hon. Serge Joyal: Honourable senators, I should like to go back to the
remarks of the Honourable Senator De Bané.
Senator Kinsella: Point of order! Pursuant to rule 33(2), I move that
Senator Beaudoin do now be heard.
Hon. Gérald-A. Beaudoin: Honourable senators, Bill S-4 is intended to
harmonize federal law with the civil law of Quebec.
An Hon. Senator: Order!
The Hon. the Speaker pro tempore: This is a motion. There is a
motion on the floor. Do you agree, honourable senators, that I recognize the
Honourable Senator Beaudoin, whom I did not see standing up – if he did?
Senator De Bané: He was standing up.
The Hon. the Speaker pro tempore: He is the speaker, then.
Senator Kinsella: We go back and forth, do we not?
The Hon. the Speaker pro tempore: That is the motion that I put
on the floor. Is it agreed, honourable senators, that I recognize Senator
Some Hon. Senators: Agreed.
Senator Kinsella: Is he asking a question of Senator De Bané or is he
making a speech?
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, it is normal that we go back and forth from one side to the other in
debate. If I understood correctly, Senator Joyal wished to put a question to
Senator De Bané on the speech he had just made.
Senator Kinsella may perhaps have thought that Senator Joyal was rising to
address the Senate and make a speech, but I do not think that is the case.
The Hon. the Speaker pro tempore: Senator Joyal, you had a
Senator Joyal: Honourable senators, I should like to ask a question.
The Hon. the Speaker pro tempore: I must continue with the
motion. Shall I recognize Senator Beaudoin?
Senator Kinsella: I withdraw my motion. I was of the understanding
that Senator Joyal intended to debate, and we wanted to maintain the practice of
going back and forth. However, Senator Joyal is asking a further question of
Senator De Bané, which is very much in order. I apologize for my
The Hon. the Speaker pro tempore: Senator Kinsella is
withdrawing his motion. Is leave granted?
Hon. Senators: Agreed.
Senator Joyal: Honourable senators, I wish to ask Senator De Bané
whether it would not be more appropriate when the unique character of Quebec
society is mentioned in the bill, as it is in the second whereas, to refer to
the overall context from which this reference is taken.
Senator De Bané himself said that it was taken from the Calgary declaration.
However, the Calgary declaration does not talk about the unique character of
Quebec in a vacuum.
The Calgary declaration does not talk about Quebec society in a vacuum. It
talks about Quebec society in reference to – and I read paragraph 4 of the
Calgary declaration, which states:
Canada's gift of diversity includes Aboriginal peoples and cultures, the
vitality of the English and French languages and a multicultural citizenry drawn
from all parts of the world.
When one speaks of Quebec society and refers to only one aspect of the
Calgary declaration, I do not think one does justice to the declaration. Quebec
society is not a monolithic French-speaking society. It is a diversified
society, the various components of which have particular rights.
If one wanted to refer to the text of the Calgary Declaration, Quebec society
should have been described by making reference to its diversity, to clearly show
the reality in which that Quebec is evolving.
Could Senator De Bané tell us how he reconciles this essential component of
Quebec reality – all the other senators from Quebec could attest to that – of
Quebec society? This is not a neutral concept, but a socio-political one that
has given rise to debate and that will continue to do so.
How can the honourable senator assure us that this term is – as he said
himself – of no consequence, in light of the other debates that are taking place
to describe Quebec society?
Senator De Bané: Honourable senators, the text is very clear. It
states that the Civil Code of Quebec reflects the unique character of Quebec
society. That society was just described by Senator Joyal. I agree with him on
its various components.
I submit that this multicultural society, which is made up of people of
various origins, including the Aboriginal peoples who were its first members,
with francophones accounting for over 82 per cent of its population, is a
society with a unique character.
I do not see anything in this which should prevent any of us from subscribing
to it. If Senator Joyal saw anything else in these words, such as, for example,
the expression "unique character" as meaning "exclusively francophone
society," he is absolutely right, but that is not the issue.
I do not think that by saying "unique character" we are denying the various
components to which he alluded. In the Canadian context, it is clear that this
province has a unique character by its demographic structure, its legal system
and its internal structure. The 1867 Constitution even includes distinct
provisions for Quebec, as does the 1982 Constitution.
Honourable senators, I do not see any political bent here but, rather, the
recognition of a situation on which there is unanimity.
Hon. Gérald-A. Beaudoin: I repeat, the purpose of Bill S-4 is to
harmonize federal law with the civil law of Quebec. This is the first time there
has been such a bill. It is just a standard bill, and as such has no
constitutional impact. However, it must be clearly understood: This bill is not
intended to harmonize the two systems of private law in Canada, the civil law of
Quebec and the common law of the other nine provinces. It does not touch the
civil law and it does not touch the common law. What it does is harmonize the
federal law with the civil law of Quebec.
There are seven parts to the preamble. I agree that the preamble has no
normative impact, per se, nor any constitutional impact. It can, however, in a
context of legislative interpretation, be used to explain the purpose and scope
of a bill.
The "whereas" in the preamble referring to the unique character of Quebec
society refers to the civil law tradition of Quebec. It reflects the particular
situation of Quebec.
Reviewing the course of history, Quebec is in a particular situation, indeed
a different legal situation from the other provinces. This dates back to the
Quebec Act of 1774. At that time, we were a British entity. We were not
independent and we came under British jurisdiction. In the United Kingdom's
Parliament of Westminster, the Prime Minister, Lord North, had legislation
passed which reintroduced French civil law in a British colony. This situation
was formalized in constitutional law with sections 94 and 98 of the Constitution
Act of 1867. This is fundamental. The British North America Act of 1867 repeated
the same terms as the Quebec Act – property and civil rights.
Looking at Bill S-4, we see that the federal legislation is being harmonized
with the provincial. In Quebec, private law is in the Civil Code and in civil
law. Federal legislation must be interpreted in that province, Quebec, in
keeping with the spirit of civil law, just as in the other nine provinces
federal legislation is harmonized with the spirit of the common law.
That is what Canadian federalism is all about. There is just one province
with a civil code; the others have a common law system. This goes way back in
history, at least two centuries. It was established in 1867 in the Constitution,
and, let us not forget, the Civil Code of Lower Canada existed at the time of
Confederation. It was bilingual.
The idea of federalism rests on diversity and the recognition of differences.
It requires that provincial differences be taken into account. Of course, all
the provinces have the same powers: sections 92, 93, and so on of the
Constitution Act, 1867. The Supreme Court said it and repeated it, but in terms
of private law, history has determined that one province would have civil law
and the others, common law.
The British Parliament itself accepted this character of our country.
I could cite Chief Justice Dickson in Sheldon:
It is necessary to bear in mind that differential application of federal
law can be a legitimate means of forwarding the values of a federal system. In
fact, in the context of the administration of the criminal law, differential
application is constitutionally fostered by ss. 91(27) and 92(14) of the
Constitution Act, 1867. The area of criminal law and its application is one in
which the balancing of national interests and local concerns has been
accomplished by a constitutional structure that both permits and encourages
federal-provincial cooperation. A brief review of Canadian constitutional
history clearly demonstrates that diversity in the criminal law, in terms of
provincial application, has been recognized consistently as a means of
furthering the values of federalism.
Bill S-4 harmonizes federal legislation with the spirit of civil law, as our
federal laws are harmonized with the spirit of the principles of common law,
which come to us from Great Britain.
I see nothing unconstitutional in this bill, quite the contrary. I support
the preamble. This bill goes back in history, and a preamble for such an
important piece of legislation is justified. This bill goes to the very heart of
Canada's constitutional structure. The Civil Code has even outstripped the
Constitution of Canada. However, I respect the opinion of those who do not want
a preamble. I hope we will continue in this vein and introduce other similar
The Hon. the Speaker pro tempore: Will the Honourable Senator
Beaudoin agree to answer questions?
Senator Beaudoin: Of course.
Senator Kinsella: My question concerns the preamble. I refer to this
expression, and I quote:
...que tous les Canadiens doivent avoir accès à une législation fédérale...
And in English:
...Canadians are entitled to access to federal legislation...
I find that a meaningless expression in English.
I am not sure I understand the expression "accès à la législation."
I understand the answer that Senator De Bané provided on the objective in the
law, in which I share agreement. However, in section 15 of the Charter it says
that everyone is equal before and under the law, and has equal benefit of the
law. That I understand, but to have equal access to legislation, the way that is
written, my question Honourable Senator Beaudoin is: Would the drafting in
section 15 of the Charter not be much better than the drafting that is in the
preambular paragraph 1?
Senator Beaudoin: I very much like section 15 of our Charter. We are
equal by the law, under the law, the benefit of the law and the application of
the law. It is a masterpiece. I would prefer that wording in many other
I would prefer the term "benefit" to "access." Of course we have access
to the laws of our country. Perhaps Chateaubriand, or a great author like
Montesquieu, would have used another expression, but in the first paragraph it
means that all Canadians are entitled to access to federal legislation. They may
be entitled to benefit from the federal legislation, or have the benefit of
federal legislation, as it is stated in section 15 of the Charter. I would have
preferred that, but I do not think the Supreme Court of Canada will have a
problem with the first "whereas." It is obvious that the purpose of this bill
is to render the federal legislation of Canada in keeping with the common law
and civil law traditions, and to harmonize the federal legislation of the
Parliament of Canada with the genus of the private system in Quebec and all the
It works very well. Do not forget that the Civil Code of Quebec is in both
languages. It is a bilingual statute that came into existence one year before
Confederation. When we updated the Civil Code in 1994 we did it in both
languages, and we respected the spirit of a codified system that exists in
How can we be against that? It is advantageous to Canada to have the two
systems of law that are the most popular in all the world. There are at least 60
countries with the civil code, and at least 60 countries with the common law
system. It is hard to beat that.
It is stated that the Supreme Court of Canada shall have three judges from
Quebec, three civil jurists from Quebec, and, of course, that the court shall be
perfectly bilingual, and it is. I do not see any difficulty with that.
We are fortunate to have two systems of law. It is a very good thing to
harmonize federal laws with the civil law of Quebec and with principles of
common law in the other provinces. I have only praise for those who drafted this
It is true that a preamble is unnecessary. If one is drafting legislation in
an area based on two centuries of our country's history, I would happily give in
to the temptation to draft a preamble. If ever a preamble were justified, it
would be in a bill such as this which, in spirit, goes back to the Quebec Act,
1774. In 1774, our ancestors made a choice, and they remained faithful to the
British Crown. The British Crown reintroduced French law in the Canadian colony.
It must not be forgotten that we were a colony at the time. Reintroducing
French law in a British common law colony is quite something. It is unique, no
doubt about it!
Senator Joyal: Honourable senators, at the beginning of his speech,
Senator Beaudoin said that Bill S-4 was not a constitutional bill. Strictly
speaking, I agree with him. It is not a constitutional bill, because it does
not, strictly speaking, amend the Canadian Constitution. The honourable senator
concluded by saying that this bill was constitutional and went to the very heart
of what Canada is all about. How does he reconcile these two statements?
If this law goes to the very heart of what Canada is all about, let us go to
the very heart of Canada as it really is. The very heart of Canada as it really
is is how it was described in the Constitution Act, 1867.
The Constitution Act, 1867, in sections 92(12), 94 or 98, where it recognizes
that the Province of Quebec has the right to maintain and develop a civil law
tradition, does not have to recognize or include a socio-political concept that
excludes, by its very definition, the groups that make up Quebec's society or
identity as we understand it. These are, in my opinion, the two things that must
not be confused.
I believe I understand what Senator Beaudoin has in mind when he says that it
is not very important, that it is not a constitutional document. Then he adds
that it has a constitutional scope and that it goes to the very heart of the
country. If we go to the very heart of the country, let us describe things the
way they are in the essence of the country, that is, in the Canadian
Senator Beaudoin: Honourable senators, I said that the act, from a
strict legal point of view, is not an act that amends the Constitution. It is an
organic and very important law. I never said that it was a constitutional act,
but that it was an act that relates to the Constitution, that it goes back a
long way in history.
The Civil Code is based on section 92(13). It is a civil law document and it
does not amend the Constitution. In my opinion, civil law is a masterpiece. It
was modernized in 1994 by the Quebec National Assembly, and Sir George Étienne
Cartier had it passed by Upper and Lower Canada, in August 1866. This is an act
that goes back a long way in the history of our country.
I maintain that, strictly speaking, this is not an act that amends the
Constitution, but it is a very important act. It reflects the spirit of the
private law in one province, just like common law reflects the spirit of the
common law in the other provinces, and these are two marvellous systems.
In my opinion, the preamble does not change the nature of the act at all. Of
course, it is not essential, but when an act harmonizes the federal laws of our
country with one of the greatest law systems, it is certainly not a bad thing to
conclude that a preamble is in order. It is not essential. In my opinion,
however, they were right to include it.
I agree that there are not only francophones in Quebec, on the contrary. This
is why we have a bilingual Civil Code. Let us not forget that. Quebec civil law
has existed in both languages since 1866. Legislative bilingualism dates back to
before the Canadian Confederation.
When we say that the Civil Code gives Quebec a unique character, since it is
the only province with a codified system, in my opinion, we are only describing
reality. We are only showing that there are two major private law systems in
The aspect of Quebec differs in that there is a Civil Code for private law,
but this does not mean that no common law principles apply to Quebec. The
private law system is truly unique to Canada.
The British Parliament, in 1774, reintroduced French laws into Lower Canada,
in order to keep our ancestors loyal to the British Crown. This is part of
history. I do not know if there are any other such examples in British history,
but there might be.
The reintroduction of French civil law in a British colony is certainly
something unique. That is all that I can say, nothing more, nothing less. The
bill does not change the civil law, does not change the common law and does not
amend the Constition; it pays homage to the two systems of law that are ours and
are close to our hearts.
Senator Grafstein: Honourable senators, I take it from listening to my
learned colleague Senator Beaudoin that he agrees that it is an unusual practice
to have a preamble in a bill of this nature that is not legally or strictly a
Senator Beaudoin: Honourable senators, I said that we may have a
preamble or we may have no preamble. Nothing is imperative. However, I have said
very clearly that it is not an amendment to the Constitution of Canada – and
obviously it is not because it would be unconstitutional – we must follow the
Constitution and make an amendment to the Constitution. We have jurisdiction on
this matter. If the House of Commons agrees with us, it will become law.
I say that this is not a bill on the Consititution, but it is a very
important bill. As to whether it should have a preamble, I believe that it is
justified in a statute of this importance, which has a rendezvous with the
history of our federation. Although it is not imperative, it is justified.
Senator Grafstein: Honourable senators, I apologize if I took the
senator's comments out of context. I simply want to understand his position.
I think he would agree that it is imperative that the preamble be as precise
and clear as possible.
Senator Beaudoin: Yes.
Senator Grafstein: Honourable senators, I wish to refer to the
evidence. I was not present for this evidence and, as such, I cannot go through
the entire text in detail. However, there is a reference in the proceedings by
Mr. Kasirer, who was a witness in support of this legislation, who had this to
It was observed earlier by Senator Beaudoin that not all of the civil law
finds expression in the Civil Code. It is true, too, that the civil law style is
one of the features that differentiates itself from the manner in which federal
law generally is expressed.
Was Senator Beaudoin saying that there is civil law aside from the Civil Code
Senator Beaudoin: Yes. Of course, the Civil Code is the corpus of the
civil law in Quebec. There is no doubt about that. However, we may find
legislation that is codified and has the same tradition as the Civil Code, but
is not strictly in the Civil Code. The Civil Code was based on the Napoleonic
Code, but of course adapted to the situation in Lower Canada.
Civil law is broader than the Civil Code. There may be some legislation
passed by the National Assembly of Quebec in some fields which fall under
section 92.13, which pertains to property and civil rights. They are part of the
civil law, but are not necessarily in the articles of the Civil Code of Quebec.
That does not change anything, because in the second "Whereas" it states:
...principal expression in the Civil Code of Québec, reflects the unique
character of Quebec society;
This is the tradition of civil law in the province of Quebec.
Both come under provincial legislation, as does section 92.13, and both have
something to do with the private law system of Quebec, just as we have the
private law system in Ontario and in all the other provinces.
Senator Grafstein: Honourable senators, I am not a civilian lawyer but
a common law lawyer. As such, I have those limitations. Would it not be more
appropriate to say: "Whereas the civil law tradition of the Province of Quebec,
which finds its principal expression in the Civil Code of Quebec, and the Civil
Code, or the civil law, reflects the character of Quebec society...," if you
want those words? Would that not be a fairer expression? By leaving out those
laws that are beyond the Civil Code, you are giving an unfair impression of what
this recital is really about. Thus, when the courts decide to look at this
question, will they not therefore be limited by this preamble just to the Civil
Senator Beaudoin: I do not think that Quebec lawyers have any problem
with that. Most of the civilists are experts in civil law and in the Quebec
Civil Code. It is not a big problem to apply a statute of the National Assembly
of Quebec which deals with civil law matters that are not necessarily in the
Civil Code. The Civil Code is so important in private law that, in effect, it
comes first in private law in that sense.
However, the way the second "whereas" is drafted does not worry me. It
states, in part, "...civil law tradition of the Province of Quebec, which finds
its principal expression in the Civil Code of Québec..." – that is 100 per cent
true – "reflects the unique character of Quebec society;" it reflects the
unique character in the sense that it is the only province with a Civil Code. It
is not a value judgment; it is a fact.
I remember when we voted after the referendum on a resolution concerning the
question of distinct society. It was adopted by the Senate, as it was by the
House of Commons. Of course, it was only a resolution, but it was a decision of
a legislative chamber. We are one of the two legislative chambers. We used the
words "distinct" or "unique character." One witness said that we should not
use the phraseology of our adversaries, those who are in favour of the
separation of Quebec. We are not using here anything that is claimed by the
indépendantistes. Many federalists use the words of the second "whereas." It
is clear-cut to me. They are strongly federalist. How can you explain the
contrary, since a resolution was adopted in the Parliament of Canada five years
I respect the opinion of those who say that we may use other words, but what
I claim is simple. We may use those words. They are part of our history. They
are used by the federalists in the province of Quebec. I do not see a major
I respect the opinions of others. We can always agree to disagree, but I do
not see anything wrong in the preamble. Perhaps it could be improved, but I am
satisfied with the preamble as it stands.
Hon. Lowell Murray: Honourable senators, I have two questions for
Senator Beaudoin. The first is with regard to the issue raised by Senator
Grafstein, that is, the very idea of a preamble. When he was at the committee,
Senator Grafstein told you about such acts as the National Transportation Act
and the Telecommunications Act where a preamble was attached in order to give
policy guidance from the government and Parliament to various regulatory
agencies such as the CRTC and the Canadian Transportation Agency. Is there not
another practice of attaching a preamble to a bill that is of fundamental
historic importance, as everyone agrees that this bill is? Senator Joyal at the
committee spoke of –
...the symbolic and iconic value of the bill.
This is obviously not the first time a preamble has been included in such a
bill. I ask Senator Beaudoin whether he would draw Senator Grafstein's attention
to the Official Languages Act and the Canadian Multiculturalism Act, two acts
among many that have preambles at least as long as the one attached to this bill
and also containing what Senator Joyal derided as socio-political concepts.
Senator Beaudoin: Honourable senators, we very often see preambles in
constitutional acts. The BNA Act, 1867 had a preamble. We also see preambles in
many other statutes that are not constitutional statutes. My honourable friend
mentioned some statutes. This is not the first time that we have adopted a
statute that is not a constitutional amendment, but rather a statute that
contains a preamble. The clarity bill, for example, had a preamble. I do not
want to start a discussion on that issue, but the fact is it had a preamble.
This bill has a preamble as well. The Official Languages Act has a preamble, as
do many others. I do not risk anything by saying that I can find, in a few
minutes or a few hours, many bills with a preamble, bills that are not
Honourable senators, there is no law on this matter. It is up to the
legislature to say whether or not its statutes are to have a preamble. It is a
choice. Usually, when we consider a bill to be very important, we draft a
preamble, but not necessarily. As I said, it is the choice of the drafter and it
is the choice of Parliament. In my opinion, a good preamble can help, but it can
also be useless if it is a bad preamble.
Honourable senators, we may agree or disagree with one word or one expression
in this preamble. As they say in French –
The contents of the preamble are very much justifiable. One can agree or
disagree. It is, however, not easy to have a fine preamble. The same thing
applies to constitutions. The American Constitution has a lovely preamble that
has been universally quoted for 200 years. There are also very ordinary laws, as
well as others which, while extremely important, are not constitutional in
nature, that include preambles. That does not trouble me in the least.
Senator Murray: Honourable senators, I have another question on the
preamble, with a view to assisting Senator Kinsella. I shall probably fail in
this, but in defence of the first paragraph of the preamble, it states:
WHEREAS all Canadians are entitled to access to federal legislation in
keeping with the common law and civil law traditions;
Senator Kinsella says that this is meaningless.
Is it not the case that in the absence of the harmonization of federal
legislation with the civil law of Quebec to ensure that each language version
takes into account the common law and civil traditions all Canadians will not
have access to federal legislation? Some Canadians will not have access to it
because it would be outside their frame of reference.
Senator Beaudoin: My opinion is that the first paragraph is very
useful. All Canadians are entitled to access to federal legislation in keeping
with the common law and civil law traditions. This is what the word
"harmonization" means. If we set aside the first "Whereas," there is
something missing in the objective of the bill. The objective of the bill is to
harmonize our federal legislation with the two private law systems of Canada.
This is exactly what federalism is about. The provinces may legislate in
property and civil rights, and the federal authority may legislate in criminal
law. However, we must harmonize federal legislation with the civil-law
tradition, just as we do with the common-law tradition. Harmonization was not a
big problem with respect to the common-law tradition because it has always been
the same system and the same genus of law. However, when the British Parliament
introduced in its colony a new system, it was certainly not common law; it was
civil law. It was a system of private law, which we must harmonize.
I will give honourable senators an example – the liability of the Crown as
laid out in the Crown Liability and Proceedings Act. Some time ago, we said,
"The King could do no wrong," but Parliament has legislated to say that the
Crown is responsible for its damages. By way of illustration, if a car accident
happens in Quebec, the Civil Code is applied. If the car accident happens in
Ottawa, the common law and the laws of Ontario apply. This is the type of
harmonization we are discussing here today.
In my opinion, the first paragraph of the preamble is useful. We may agree or
disagree with the words used, but the intention is clear. It is meant to
harmonize the federal legislation that we enact every session with the civil law
tradition in Quebec. This should have been done much sooner, but I will not pass
judgment in that respect. I am glad that we have Bill S-4.
The Standing Senate Committee on Legal and Constitutional Affairs was told
that this is only the first statute. Other statutes will follow. How many, I do
not know, but the legislation of the Parliament of Canada will be harmonized
with the tradition of our common law and our civil law.
The Hon. the Speaker pro tempore: Honourable senators, the time
for Senator Beaudoin to take questions has expired.
Does Senator Beaudoin wish leave to take more questions?
Senator Beaudoin: Yes, please.
The Hon. the Speaker pro tempore: Is leave granted, honourable
Hon. Senators: Agreed.
Senator Grafstein: Senator Beaudoin, Senator Kinsella and others have
referred to this first recital. Is that recital not directly inconsistent with
the Charter of Rights and Freedoms in the Constitution?
Let me explain. This recital reads, "Whereas all Canadians are entitled to
access..." Senator Kinsella has a problem with the word "access," as do I, as
I have as well with every one of these recitals, but this reads "Whereas all
Canadians are entitled to access to federal legislation."
However, the Charter does not use the word "Canadians." The Charter is very
careful. This was the subject of a great battle that we had. It is very careful
to differentiate between "Canadian citizens" and "everyone."
I would say to Senator Beaudoin that here we have an important bill, with
which I agree in principle, that is, the principle of harmonizing law in and for
the province of Quebec under federal law, inconsistent with the Charter. Section
6 of the Charter reads: "Every citizen of Canada." Section 7 reads: "Everyone." Sections 8, 9 and 10 read
"Everyone." The section on equality
rights reads, "Everyone" not "Canadians."
To return to my point, is the first recital not inconsistent with the Charter
and therefore raises questions of law?
Senator Beaudoin: I have already said this: This bill does not change
the civil law of Quebec, the Civil Code of Quebec, or the common law principles
of the other provinces. The Civil Code is governed by the Canadian Charter of
Rights and Freedoms. The common law principles are guided by the Canadian
Charter of Rights and Freedoms. These facts do not change at all with Bill S- 4.
As the honourable senator indicated, it is true the Charter sometimes refers
to Canadian citizens," "Everyone," "anyone," et cetera. The right to vote,
for example, is restricted to Canadian citizens. However, other articles refer
to "anyone" or "everyone."
This has not changed. The Civil Code of Quebec must respect the Charter of
Rights and Freedoms. The common law legislation or system in the other provinces
have to respect the Charter of Rights and Freedoms. These matters do not change.
The first "whereas" refers to "all Canadians." That is not bad, "all
Canadians." It is our country.
...all Canadians are entitled to access to federal legislation in keeping
with the common law and civil law traditions;
In general, it is true that the Charter distinguishes here and there between
"Canadian citizens," "anyone" and "everyone." However, the Civil Code is
not changed. The common law is not changed. The Charter of Rights and Freedoms
is not changed and is applicable. What is changed is the spirit. The federal
legislation should be in keeping with the civil law tradition. This is what it
says, no more, no less.
Senator Kinsella: Senator Beaudoin agrees that under the Charter there
are three rights that are limited to Canadian citizens: the right to vote, the
right to leave and return to Canada, and certain minority educational rights.
I return to section 15 of the Charter. What is so beautiful about this
section is that we recognize that everyone in Canada, not just Canadian
citizens, is equal before and under the law and has the equal protection and
benefit of the law without discrimination. It is beautiful.
Senator Beaudoin: It is a masterpiece.
Senator Kinsella: It is a masterpiece.
Would it not have been better to omit the word "Canadians" in the first
preambular paragraph? I must confess that I agree with the point Senator Murray
made in questioning Senator Beaudoin. I think the word "law" would have been a
better choice than the word "legislation" in that preamble. The first
preambular paragraph uses the word "Canadians," attempting to limit what
section 15 keeps open to everyone. In addition, section 15 uses the term "law," not
Senator Beaudoin: We may certainly discuss section 15. Obviously, it
is a masterpiece because the people who worked on the Charter of Rights and
Freedoms knew that they had to protect equality under the law, by the law,
protection of the law, and equal benefit of the law. When it was a question of
equality between men and women, it was enshrined in the Constitution that,
notwithstanding anything in the Charter, the law would apply equally to men and
women. The text uses the words "male or female persons."
I agree with the comments regarding sections 15 and 28. Perhaps drafters
cannot succeed in establishing sections like those in all laws, but the fact is
that even the Charter sometimes uses the word "citizen," and sometimes it uses
the words "anyone" or "everyone," but that is done on purpose. The right to
vote, for example, is restricted to Canadian citizens at the federal and
provincial level. Every Canadian citizen has the right to vote and is eligible
to do so, in federal and provincial legislation. That is all, but that is a lot.
Sometimes the word "everyone" is used, and there may be reasons for that.
Here, the word "Canadian" is not defined, but we know that a Canadian is a
Canadian. The term may have a broader meaning, that is, a Canadian citizen, but
the word "Canadian" is used.
It is always difficult to draft laws. One cannot foresee every potential
interpretation. This country has two systems of private law, so one must also
take that into consideration.
I cannot be more precise than that. Obviously, a constitutional amendment is
a little bit different. For example, certain sections of the Charter were
drafted after the others. Section 28 was of that category. The legislators did
not take any chances. They said that, notwithstanding anything in this Charter,
laws apply equally to men and women. This, in my opinion, is probably the most
important section on equality. Some people even say that equality between men
and women is absolute, even if no right is absolute, as we say in court or in
the universities, or when we teach students. No right, no liberty, is absolute.
However, one is more important than all the others, namely, the equality of men
and women, because section 28 says "notwithstanding anything in this charter."
The wording varies according to the situation, or what we have in mind. After
a certain time, we realize that the legislator was lucky to find a good
expression in some statutes and not as lucky in the others. Nothing is perfect.
Hon. Aurélien Gill: Honourable senators, I do not wish to dampen
Senator Beaudoin's enthusiasm, but I have a question for him. He mentioned that
the Civil Code had been adopted in 60 countries, and the common law in another
60. Are there Aboriginals in any of these countries? If so, how would you
reconcile the Civil Code of Quebec and the Indian Act, since we are talking
about harmonizing the two systems?
Senator Beaudoin: Honourable senators, in 1867, the issue of the
Aboriginal peoples had not really been resolved. Section 91(24) gave the federal
government legislative authority over the Indians. However, in 1982, people
realized that they had largely been forgotten. Hence section 35, which said that
Indians, Amerindians, Aboriginals, First Nations, have treaty rights. The
Supreme Court interpreted this as meaning collective rights. Collective rights
are rare in the Canadian Constitution.
Denominational rights have been considered collective, as have the rights of
Amerindians. The Supreme Court ruled that educational rights – in section 23 –
are collective rights. However, in 1982, the government wondered about the
protection of Amerindians. It protected their rights and talked about treaty
rights, including a section in the 1982 Constitution to that effect. There is a
world of difference between 1982 and 1867. I think that Amerindians were
protected much more obviously and effectively in 1982 than in 1867.
If you read the Supreme Court decisions, at least 20 to 25 of them have to do
with Amerindians. Recognition has been given to rights for Amerindians which
nobody else has, which I, for instance, do not have, because they are collective
rights protected under the Constitution.
The Civil Code does not change this in any way, nor does the common law. When
it can be proven that they have treaty rights, Amerindians are in a class apart.
If there is one group in Canada that has particular status, it is this one.
Section 35 provides they have rights, which were interpreted as collective
rights. Bill S-4 changes neither the Civil Code nor the common law or section
35, which recognizes certain rights of the First Nations. The law does not
affect the collective rights of the Amerindians. When a dispute does arise,
whether it concerns fishing or something else, the court will apply the rights
of the Amerindians as established by history. Each time legislation is passed on
the Amerindians, the problem arises: Are we contravening their collective rights
or their treaty rights? If so, these rights are left alone, in principle. The
Amerindians' situation has therefore been very different since 1982, and for the
Senator Joyal: Honourable senators, does Senator Beaudoin not
recognize that the expression "unique character of Quebec" is politically
charged and does not have the unanimous support of the federalists, as he
mentioned in his response earlier?
An SOM poll published in 1995, in La Presse, revealed that 53 per cent
of Quebecers considered the federal government's motion unsatisfactory.
The Supreme Court of Canada, in the reference on the secession of Quebec,
recognized that laws of a constitutional nature are not limited to the
Constitution of Canada and the Constitution Act, 1982, but include all organic
laws relating to the interpretation of the provisions of the Constitution of
Senator Beaudoin himself recognizes the constitutional nature or scope of
Bill S-4. Would it not be better, therefore, to avoid mentioning in the preamble
a concept of the political vocabulary that divided Canadians during the 1992
referendum on the Charlottetown Agreement, that divided Canadians in the
discussions surrounding the Meech Lake Accord and that continue to divide
All of the polls indicate this. I could quote polls done following the
Calgary declaration, where 48 per cent of people oppose the concept in the
Calgary declaration. principally in the references to Quebec.
If we are going to have a bill whose harmonization objectives we accept – as
senators from both sides said – and if we want to include a preamble, would it
not be better to avoid putting in that preamble political concepts that are
divisive and that recent history has shown not to be unanimously approved, both
across Canada and by federalists in Quebec?
Senator Beaudoin: There are historical facts. I do not see how it
would be a mistake for a Parliament to refer to facts that are connected to
history. The preamble says that the civil law tradition of the Province of
Quebec finds its principal expression in the Civil Code of Quebec and reflects
the unique character of Quebec society.
This is a fact and nothing will change that. From a private law perspective,
Quebec is unique. It is the only province with a Civil Code. We are not adding
anything, we are only referring to facts. Some say that these concepts are used
by people who want to divide Canada.
I read the newspapers that report the comments made by the Premier of Quebec
and he never talks about that. He talks about the Quebec nation, or about this
or that. We are all federalists in this chamber. If you ask me whether Quebec
has a unique character, I will say yes because of its Civil Code. The French
language is another matter, because there are francophones in every part of
The Civil Code is in Quebec, and nowhere else. It has a unique character. Are
the words "unique character" going to stir up bad memories? No. They were used
in the federal Parliament in 1995. One need only read the newspapers of the day
to see that Quebec was described as a distinct society. Both chambers of the
Parliament of Canada voted on this. In the House of Commons, it was passed with
a strong majority. Where our federal system is concerned, we may want to improve
it, change it, bring it up to date, but no one here challenges its existence. We
can use such terms as "society with a unique character." I have no problem
with that. Some may no doubt feel that we ought not to use those words, that we
should end this part of the preamble at the words "Civil Code of Quebec." This
would give "whereas the civil law tradition of the Province of Quebec, which
finds its principal expression in the Civil Code of Québec."
Yes, but that leaves something out – the words "reflects the unique character
of Quebec society."
Yet the fact that one province has a Civil Code and the one next to it has
common law does change something. One has a codified system of private law,
while the other has one based on the principles of common law. There is nothing
inaccurate about the terms "unique character". I respect those who hold the
opposite opinion, but I see no problem with it.
We cannot ignore history. The Constitution is steeped in history. The
Constitution of Canada is specific to Canada. It is not part of the history of
the United States, France or England. It is our history! There will always be
certain words that are used here, but if the facts justify them, I believe that
they can be referred to in a bill – no more, no less than that.
Hon. Lorna Milne: Honourable senators, I am not sure whether I am
pleased to rise to speak to this bill today.
Bill S-4 is the first step in a major ongoing project undertaken by the
Department of Justice. Honourable senators all know that Canada has two legal
traditions – the civil law in the Province of Quebec, and the common law in the
other provinces and territories. However, this duality has never before been
expressly recognized in federal statutes.
Senator Beaudoin has disseminated the history of the development of our
system far better than I have, but the fact remains that most federal laws were
drafted by people with a common law background. Naturally, these drafters used
terms that they were familiar with to describe legal concepts. Unfortunately,
those words and concepts have not always had the intended effect in the province
of Quebec because of their civil law traditions. Many times, judges and lawyers
in Quebec were forced to infer the meaning of federal law provisions because
common law concepts that were quite foreign to them were used in federal
In 1994, the Quebec government passed a new Civil Code and the Department of
Justice saw the introduction of this new code as an opportunity to begin the
work of updating federal laws to include the provisions of the new Civil Code.
Bill S-4 is the first step in what will be a long legislative process. I trust
that the following bills will not have preambles.
Bill S-4 amends more than 40 federal statutes that are already on the books,
without changing the intended effect of any of those statutes. This does not
mean the changes are cosmetic. The bill enhances federal laws by adding the
proper Civil Code principles. As a result, federal laws will be more effectively
interpreted in Quebec.
To give just one example, take the concept of "real property." This is a
well-known common law term. When translated into French, the term becomes "bien
réel." However, there is no such concept as "bien réel" or "real property"
in the Civil Code. The closest comparable civil law term is "immeubles" in
French, or "immovables" in English. This bill amends federal legislation to
ensure that all four terms are properly used: "real property," "bien réel," "immovables," and
Bill S-4 also takes steps to ensure that the laws containing legally
technical terms are read properly. This is achieved in two ways. First, the bill
amends the Interpretation Act to specifically recognize the two systems of
private law in Canada. Furthermore, the Interpretation Act will now provide that
the civil law terms in federal statutes are to be applied in the province of
Quebec, and the common law terms are to be applied in the rest of the country.
Second, it was suggested by the minister that the summary of the bill should
be altered to explain that, in the French version of federal statutes, civil law
terms are placed ahead of common law terms and that the reverse happens in the
English versions. As the committee did not discuss this change, we did not alter
the summary, but we agreed to raise the minister's request in our report to the
On the face of it, this bill may have seemed technical in nature because it
proposes no changes to the substantive laws of Canada. However, as was noted by
all members of the Standing Senate Committee on Legal and Constitutional
Affairs, this bill speaks, or in some cases sings, volumes about Canada's legal
The musical nature of Bill S-4 was brought home by several witnesses,
including Professor Jean-Francois Gaudreault- DesBiens, McGill University, whose
testimony before the committee focused on the principle of harmonization. He
spoke about the underlying goal of Bill S-4, which is to ensure that all federal
statutes take into full account the civil law traditions in the province of
Quebec and the common law legal traditions, to create a body of law that sings
one song in two distinct voices. It is that kind of harmony that the bill seeks
I will take that analogy one step further. Bill S-4 attempts to create a
barbershop quartet – federal law that speaks in four legal voices; English
common law, French common law, English civil law and French civil law. This bill
amends numerous federal statutes – I believe 40 – to incorporate civil and
common law terms in both languages that fully and accurately explain the intent
of Parliament in the lexicon of each legal tradition and language.
Other than some debate in committee over the marriage law portion of the
bill, the members of the Standing Senate Committee on Legal and Constitutional
Affairs were unanimous in their analysis of the substance of Bill S-4. The work
of officials from the Department of Justice has been admirable, and the project
is long overdue. The diverse legal traditions in Canada are equally important,
and federal law must be expressed in all four voices so that it speaks to all
legal communities across our country. To deny any of these voices its place in
the choir would be a great loss to all Canadians.
The members of the committee also agreed that the project has international
implications. The common law and the civil law, as was pointed out, are the two
most widely used legal systems in the world. What is truly unique is for the two
systems to coexist in one jurisdiction. After the project is completed, the two
systems will not only exist in Canada, but they will work in harmony with one
another. Canada's laws will speak in four voices and be applied throughout the
country in two legal traditions. No other modern nation can make that claim.
This will make Canada even more of a world leader.
As the project develops, it will give Canadians a great opportunity to
influence international law. As the pace of globalization increases, so too will
the interaction between people and businesses in common law and civil law
jurisdictions. As world leaders in harmonization, I expect that Canadians will
be asked to help to resolve disputes and influence the development of
international private law or "conflict of laws," as the technical legal term
The main area of debate in the committee, as we could tell here today, was
about the preamble, and the contentious debate surrounded the second clause of
the preamble. I will not read it again because we have heard it several times
this afternoon. Some honourable senators were concerned that the phrase "the
unique character of Quebec society" in the preamble could have far- reaching
consequences outside the scope of the bill. They did not want the value of these
changes within the bill in federal law to be in any way affected by what was
seen by some to be a political statement.
Conversely, other honourable senators, and the Minister of Justice who
testified before the committee, believed that the entire preamble was crucial
for the setting of the stage for this entire project. For those people, it was
important to recognize the historic and international context of this project,
and to maintain the commitment that both Houses of Parliament made in 1975. That
1975 motion here in the Senate stated, among other things, that:
...the Senate recognizes that Quebec's distinct society includes its
French-speaking majority, unique culture, and civil law tradition; and the
Senate undertakes to be guided by this reality.
After a lengthy debate on the preamble and several proposed amendments to it,
the amendments in committee were all defeated, with varying votes and
abstentions, and the committee voted, on division, to pass the bill and preamble
Honourable senators, I urge you to vote in favour of Bill S-4 entitled: the
Federal Law-Civil Law Harmonization Act No. 1. By passing this bill, the country
will be taking its first major step towards full harmony between our two legal
traditions. This bill has widespread support in the legal community and will
make the lives of many in the legal profession much easier. More important, as
one of the witnesses mentioned, we will finally have Canada's federal laws
singing not only in harmony, but also in four-part harmony.
Hon. Tommy Banks: Honourable senators, I have a question for the
Senator Milne: Honourable senators, I hesitate to take a question from
our musical senator. I think the debate this afternoon has probably gone on long
enough, and I do not intend to accept questions.
The Hon. the Speaker pro tempore: Honourable senators, before
giving the floor to another senator, I wish to draw to your attention the
presence in the gallery of our former colleague Joseph Landry. He is accompanied
by a gentleman from Acadia, Victor Cormier, of Cap-Pelé in New Brunswick.
On behalf of all honourable senators, I welcome you to the Senate.
The Senate proceeded to consideration of the first report "A" of the
Standing Joint Committee for the Scrutiny of Regulations (budget 2000-2001),
presented to the Senate on March 29, 2001.– (Honourable Senator
Hon. Céline Hervieux-Payette moved the adoption of the report.
The Senate proceeded to consideration of the second report of the Standing
Senate Committee on Energy, the Environment and Natural Resources (budget-study
relating to energy, the environment and natural resources) presented in the
Senate on March 29, 2001.–(Honourable Senator Taylor).
Hon. Nicholas W. Taylor moved the adoption of the report.
Hon. A. Raynell Andreychuk rose pursuant to notice of February 22,
That she will call the attention of the Senate to the seventh report of the
Standing Senate Committee on Foreign Affairs: The New NATO and the Evolution
of Peacekeeping: Implications for Canada.
She said: Honourable senators will recall that at the urging of Senator
Lynch-Staunton and under the guidance of Senator Stewart the Foreign Affairs
Committee embarked on a study resulting in its report "The New NATO and the
Evolution of Peacekeeping: Implications for Canada," filed in April of 2000. It
has now been one year since that report was tabled in the Senate.
It is important to evaluate Senate reports to see whether their contribution
is important to the Canadian public policy debate and whether our assessments
Many questions were raised by our report and we asked that the Minister of
Foreign Affairs reply to it within six months. This has not been done, and nor
did the minister make himself available to the committee at the time to answer
questions. His initial attendance was cut short and did not afford a meaningful
Very quickly, Kosovo crystallized the debate and provided a working model for
what NATO has become. The implications for Canada remain unresolved. It is
crucial that the Government of Canada address the questions raised in our
report. To continue to ignore them further marginalizes Canada in NATO, raises
moral issues, questions the capability and capacity of our Armed Forces to meet
their obligations, and puts Parliament at risk of greater irrelevance in yet
another area of governance.
As the report stated, Canada originally signed on to NATO in 1949 with
military action clearly being an Article 5 initiative, that is, "a threat to
one is a threat to all." It was meant to be a defensive alliance. Article 2, an
article insisted on by Canada, which was to allow for a broadening of the
mandate, has never really received attention or full force. When the Cold War
ended, NATO set about reshaping itself, culminating in the new strategic concept
which formally recast the alliance Cold War era mission from collective defence
to what in 1999 then NATO Secretary- General Solana termed as a NATO which will
guarantee European security and uphold democratic values "within and beyond our
Kosovo tested the meaning of this and the role and link of NATO to the United
Nations. Therefore, the timely report of the Senate Committee on Foreign Affairs
raised questions. I wish to deal with some of the main ones.
It was clear that diplomacy was not producing the desired effect in Kosovo.
Much had been written on the ill-fated Rambouillet negotiations and their
futility. The intention of the committee was to focus in its report on the
legality of the intervention into Kosovo by NATO and, more particularly, on
As senators will recall, Minister Axworthy continually stated that
intervention in Kosovo was just that – military intervention. It was not a
conflict and it was not a war. Therefore, Article 5, the mutual self-defence
mechanism, was not employed.
When the committee travelled to Europe, more often than not the stated reason
for military intervention was not human security but the threat of
destabilization of neighbouring countries by the influx of refugees. In fact,
this is supported as early as May 6, 1998, when the North Atlantic Council
commissioned advice on options for intensified partnership-for-peace activity
with Albania and Macedonia. They wanted military advice on options for a NATO
contribution to the United Nations Organization for Security and Co-operation in
Europe efforts to monitor these borders, and on possible NATO preventive
deployments in both countries.
On page 14 of the fourteenth report of the defence committee of the United
Kingdom House of Commons, as printed on October 23, 2000, it states:
The United Kingdom military representative to NATO told us that the
planning initiated on May 6 was not concerned with direct intervention in
Kosovo but with the potential for spillover of the crisis into Macedonia and
Albania. Therefore, there was a real threat of activity, which could cause
destabilization in the neighbouring countries.
This activity was due to the Kosovo Liberation Army and the resultant actions
taken by the then President Milosevic.
Further actions in the North Atlantic Council continued, but with no clear
consensus on military action. At best, it could be said that some multilateral
initiative was to be taken. When it was clear that there would be no United
Nations resolution, NATO proceeded with its intervention. Human security reasons
for the intervention in Kosovo were not raised until near the point of entry by
NATO and during the air attacks.
I should like to focus on what Canada's legal responsibility was to enter
into Kosovo. The evidence before our committee and subsequent information
clearly shows that Canada was not obliged to participate in the NATO operation.
There was no Security Council resolution, nor a resolution of the General
Assembly. There was no obligation through the United Nations to enter into this
regional military offensive of NATO. Indeed, this was not an Article 5
operation. The NATO treaty did not oblige Canada to participate, nor did we need
to move from our usual position of requiring a United Nations resolution, as was
the case in the Gulf War.
It would be fair to say that no clear and definitive legal obligation
existed, nor was one proffered. One can recall all the statements of Minister
Axworthy that this was in fact a humanitarian intervention. However, anyone who
has studied the Balkans would know it is not so simple, as Rebecca West reminded
us in 1943 when she said:
People of humanitarian and reformist disposition constantly went out to the
Balkan peninsula to see who was in fact ill-treating whom and being, by the
very nature of their perfectionist faith, unable to accept the horrid
hypothesis that everyone was ill-treating everyone else. All came back with a
pat Balkan people established in their hearts as suffering and innocent,
eternally the massacree and never the massacrer.
At the point of our intervention, the Government of Canada stated that it was
the attacks and ethnic cleansing of President Milosevic against the Albanian
Kosovars that clearly demanded intervention. In the early stages, the Canadian
position was that we would under no circumstances collaborate with the KLA. We
chose to ignore the actions of the KLA in destabilizing Kosovo, which in fact
were just the type of taunts to which Milosevic would respond with horrific
Great comment has been made of the number of deaths that were occurring daily
at the hands of President Milosevic. In fact, it is now known that the greatest
number of deaths clearly occurred after the intervention and not before. Time is
now proving that the KLA did and continues to live up to our first assessment of
Canada and NATO not only bombed civilians but also seemed ill-disposed to now
defend the Serbian population in Kosovo through peacekeeping measures or other
One needs to question how one arrives at the issue of human security.
Minister Axworthy's human security reason for entering Kosovo must be judged
against some objective standard that would treat all people equally. In his
appearance before the committee on November 30, 1999, Minister Axworthy told the
committee that the compelling motive of human security was his reason for
joining the NATO action. I asked Minister Axworthy on what legal basis Canada
was obliged to act on behalf of human security. He replied that on behalf of
human security, there are "about seven different conventions of the United
To this day, I am quite puzzled as to what seven different conventions Mr.
Axworthy was referring. To what extent do these so-called seven different
conventions of the United Nations compel Canada to act in military operations to
achieve these human security goals? Are these operations so self-evident that no
parliamentary approval for such military action is necessary?
Further, if these are United Nations conventions and are binding on Canada,
as Mr. Axworthy put forward to our committee, this raises the question as to why
Canada did not act in the same manner in Chechnya, Rwanda, Sierra Leone and a
whole host of other international human security violations. Where does Canada's
responsibility for such human security operations lie? When will these
conventions arise again that will oblige Canada to act unilaterally without
parliamentary involvement? Clearly, our allies did not go into Kosovo making
It would be fair to say that no one on our committee disputes that there is a
role for humanitarian action. What is disconcerting is that it can be
unilaterally defined without recourse to multilateral definition, mechanisms or
processes. If Canada can determine what is a human security risk, then so can
all other nations. Provocation by one segment of a population against another
can be a justification for the use of force by any leader in any country at any
given time, and human security can be invoked.
The world is already filled with definitions of national sovereignty which
led to the repression of minorities. One need only look to Sudan, China, Cuba
and the Soviet leaders, not to mention the present day Chechnya crisis, to see
that national sovereignty and the justification of force thereafter has no
universal standard and, likewise, human security today is but a concept. The
Canadian government should utilize its long history of multilateral negotiations
to come up with a universal definition and mechanisms before implementation,
otherwise it becomes a rather selective politicized mechanism.
Given the actions of the KLA and other extremist Albanian rebels, the people
of Serbia, and by this I mean the civilians, need to know that their human
security is as necessary and important to Canada, and that there is some
objective standard and that these actions are taken by our government in an
appropriate, necessary and even-handed manner. All lives must count, as Romeo
Dallaire has said, "A child in the Balkans and a child in Rwanda must be equal
to the international community."
Finally, Parliament and Canada's external security commitments, as we stated
in chapter 8, leave parliamentarians without a key role in foreign policy
decisions. With the enhanced activism of the United Nations since the Cold War,
and more and more being demanded in UN security-related operations and in the
new emerging NATO, and I dare say with scarce military resources, it is
extremely important that an enhanced parliamentary oversight of military affairs
and foreign policy occur. Clearly, it is the prerogative of the executive to
exercise power in foreign affairs and military action.
However, as the committee concluded, the past Canadian practice included
sensitivity from previous prime ministers that Parliament should be consulted.
In fact, as early as 1926, Prime Minister W.L. Mackenzie King made a pledge to
involve Parliament in treaty obligations as well as Canada's participation in
foreign conflicts. This role has been diminished over the years. It would not be
unfair to say that the parliamentary role in this military intervention in
Kosovo was virtually non-existent, save for an eleventh-hour debate.
Therefore, the trend in Canada seems to have been to emasculate Parliament
rather than to move to a more modern- day good governance model that would
demand an enhanced role for Parliament. In fact, the United States Congress and
the Parliaments of the United Kingdom and Australia, to name but a few, have all
moved to formally involve parliamentarians to a greater extent, as our report
elaborated. Canada has not created new ways and means to have more parliamentary
participation, but has fallen back to the defence that Parliament plays the
ultimate role through supply and confidence motions.
As we stated in our report:
For one thing, denying funds to the government and withdrawing confidence are
rather blunt instruments for expressing dissenting views on such issues.
Moreover, the opportunities for scrutiny and dissent that are offered by the
Supply process cannot always be used in an effective or timely fashion. In the
case of Kosovo, for example, it was only in November 1999, five months after the
action had ended, that Parliament had an opportunity to vote funds expressly
earmarked for that operation.
Summarizing our report, it would seem logical to restore the tabling
requirements for treaties and other international agreements -
The Hon. the Speaker pro tempore: I regret to interrupt the
Honourable Senator Andreychuk, but her time has expired. Is the honourable
senator seeking leave to continue?
Senator Andreychuk: Yes, please.
The Hon. the Speaker pro tempore: Is leave granted?
Hon. Senators: Agreed.
Senator Andreychuk: I thank honourable senators.
Our report requested that there be a role created for Parliament before new
international agreements are signed by Canada and for reinvolving Parliament in
a treaty process.
With regard to my final point concerning military intervention specifically
and Parliament's role, I wish to quote from the report which states:
We believe that when Canadian military personnel are to be put in harm's way,
there should be, at the very least, a full and informed debate in Parliament at
the earliest opportunity.
Military interventions and international treaties in general in this
globalized world can no longer be treated as issues within the domain of the
executive arm exclusively. There are many conflicting points of view that need
to be aired. A full, reasoned and informed debate through Parliament is the only
way to achieve a consensus of approach. To ignore continually the role of
Parliament is to unnecessarily create a divisive atmosphere in Canada when, at
the very moment of either military intervention or commitment to an
international treaty, a clear, concerted statement from Canada would be
I believe that the committee has touched on many sensitive issues that
Parliament needs to address. One year after the filing of our report I,
therefore, call on the new minister, Minister Manley, in his new capacity, to
reply to our report as requested and to find the opportunity, within our
committee or elsewhere, to begin a dialogue that is absolutely essential in this
Hon. Nicholas W. Taylor: Honourable senators, I have a question for
the honourable senator on this very good report. As the honourable senator will
recall, I tried to say much of what was said in the report when the action first
took place. I believe I was the only one on this side – in fact, in both Houses
– who disapproved of what was going on.
I do not think parliamentary participation would have been much different
because CNN had convinced the western world, and Canadians by that time, that
they had to intervene. In other words, it is nice to say that Parliament should
participate in the decision, but I do not think it would have been any
My question concerns something that the honourable senator did not seem to
cover in her committee's report. One might argue that they had the right to
intervene. However, since when did intervention mean bombing innocent women and
children, including those not even in the area involved? They strafed and bombed
people living in Serbia with the idea that if they twisted the calf's ear, it
would cry enough to make the mother stop doing something. In other words, they
were using an old torture system on innocent people.
I also wondered why the committee did not delve more deeply into how NATO
dealt with Canada's input. Was there a phone call one morning to Canada
demanding: "Get your planes over here"? Was a vote called? How many members
voted? In other words, was there any Canadian input into the NATO decision, and
how was it organized?
Senator Andreychuk: Honourable senators, I beg to differ regarding the
honourable senator's first remark on CNN and that the debate would have been no
different. Had we started a process such as the one Australia and the U.K. are
looking into, I think that we would now have a more informed Parliament that
could do its job in educating and communicating with citizens. As our report
tried to say, it would provide for a more informed debate in Parliament and,
therefore, a more unified stand by Canada if and when we need to intervene.
With respect to the military action, one need only read the report of the
U.K. House of Commons Defence Committee. It clearly stated that this type of
military action needs to be given more thought than simply saying, "We will
bomb for three days and Milosevic will get the point." Our report stated more
subtly than did the British report that you do not go in for three days. You had
better go in with the worst case scenario in mind, not the optimistic one. As
the honourable senator pointed out, we should have considered that Milosevic
would not move in three days because there was no unanimity within NATO. We were
able to keep the coalition going, but there was a lot of disunity as we went
into Yugoslavia. As our report pointed out, not everyone agreed that we went in
for the same reasons. In daring us to go in, Milosevic gained some courage.
Once into a course of action of that type, honourable senators, the course of
action takes on a life of its own. We should have anticipated that innocent
lives would be lost beyond the borders of Kosovo, but Kosovo is part of
Yugoslavia. We entered Kosovo. We entered the former Yugoslavia.
Senator Taylor: NATO bombed outside of Kosovo.
Senator Andreychuk: It is still one country. We entered that country.
That is the justification. My point is this: Should we have gone in?
What was the honourable senator's second question?
Senator Taylor: How was the decision made?
Senator Andreychuk: In our hearings, we were able to find out from
NATO headquarters that Canada was involved at the military level, the
bureaucratic level and the foreign diplomatic level. Our political leaders were
involved in the decisions.
When Minister Axworthy and Minister Eggleton testified, they were soon called
to an emergency. We never did have the opportunity to explore those points. Who
made the decision to enter at a political level?
I remember Senator Stewart feeling very strongly, as did many senators, that
we needed further dialogue. In fact, we were to have that dialogue, but it never
came about. We requested it in our report, and we continue to request it. It is
fundamentally important to continue that dialogue.
Perhaps that dialogue is not important now for Kosovo because the conflict is
over, but we must come to the point of lessons learned from Kosovo. That is why
the bulk of my speech concerns the notion that we do not want to repeat entering
a conflict that could have been aborted or averted. We should have taken a
serious look at what we meant by "humanitarian intervention." It sounded good
to the Canadian public and perhaps to our politicians, but in the cold light of
day one year later, surely we should be sharper and more democratic. We should
think twice before we create a new category that is not called "conflict" and
is not called "war," but is called "intervention." That distinction is lost
on those people who lost their lives and the soldiers in harm's way.
Hon. Lois M. Wilson: Honourable senators, I ask for leave to revert to
Motion No. 44 on the Order Paper, which is Senator Maheu's motion on Armenia. I
was out of the chamber for a brief moment and missed the calling of this item.
The Hon. the Speaker pro tempore: Is leave granted, honourable
senators, to revert to Motion No. 44?
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I would respectfully seek leave to return to Item No. 1 on the Order
Paper, under the heading of Private Bills, to permit Senator Kroft to move the
second reading of a bill, and to Item No. 4, under the heading of Reports of
Committees, so he may move adoption of the third report of the Standing Senate
Committee on Internal Economy. We may then end with the request by Senator
The Hon. the Speaker pro tempore: The motion on the floor is
Senator Wilson's request for leave. Is leave granted, honourable senators?
Hon. Eymard G. Corbin: Honourable senators, might I inquire if this
intervention in debate was scheduled? I am not sure what is going on here.
Senator Wilson: Honourable senators, I had wanted to speak to this
item on Thursday, but I could not be here. Debate was adjourned in Senator Di
Nino's name. He has given me permission to speak to this motion. He hopes to
I am informed that, while I was out of the room, I missed the opportunity to
speak to Motion No. 44. That is why I am requesting leave to revert.
The Hon. the Speaker pro tempore: Is leave granted, honourable
Hon. Senators: Agreed.
Senator Robichaud: Honourable senators, I had asked that we proceed to
Item No. 1, under the heading Private Bills, and to No. 4, under the heading of
Reports of Committees, and then move on to Senator Wilson's motion.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, we would be prepared to revert to Order No. 4 under Reports of
Committees to deal with Senator Kroft's report and to then revert to Senator
Mercier's committee report, which is Order No. 5. We would then be prepared to
deal with Senator Oliver's item and then with Senator Wilson's request to speak
to Motion No. 44.
The Hon. the Speaker pro tempore: If I understand correctly,
Senator Kinsella is asking to proceed first to consideration of Senator Kroft's
Senator Kinsella: Yes, under Reports of Committees.
If you want the opposition's consent, we will give it to you if we proceed in
this way. There are two reports: the third report of Internal Economy, and the
fourth report of the Selection Committee. Senator Mercier would move their
Having dealt with reports, we might then pick up where we left off and hear
from Senator Oliver. We would then revert to the matter of Senator Maheu's
The Hon. the Speaker pro tempore: Honourable senators, is it
agreed to follow the order suggested by Senator Kinsella?
The Senate proceeded to consideration of the third report of the Standing
Committee on Internal Economy, Budgets and Administration (64 Points Travel
System) presented in the Senate on March 29, 2001.–(Honourable Senator Kroft).
Hon. Richard H. Kroft moved the adoption of the report.
He said: Honourable senators, this report, which was previously brought to
the attention of the Senate, deals with the adjustment of the 64-point travel
system to make the system count during the term of the fiscal year rather during
the term of the calendar year, as has been the case in the past. To normalize
this adjustment, 64 points would be granted as of April 1.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Catherine S. Callbeck rose pursuant to notice of March 13, 2001:
That she will call the attention of the Senate to the status of legal aid
in Canada and the difficulties experienced by many low-income Canadians in
acquiring adequate legal assistance for both criminal and civil matters.
She said: Honourable senators, I rise today to initiate debate on a very
serious problem in this country. This problem is fundamental to all we know
about being Canadian. It attacks the root of a democratic society, the rule of
law and the principles of fundamental justice. I am speaking of legal aid in
this country and the ability of many low-income Canadians to obtain legal
assistance for both civil and criminal matters.
Honourable senators, this is more than a matter of simply getting
representation for your day in court; rather, we are talking about access to
justice. I have raised this inquiry as I firmly believe that justice for many
Canadians has become completely inaccessible. Funding cuts to legal aid have
resulted in an increasing number of Canadians being unable to obtain legal
counsel. Those meeting the financial eligibility requirements for civil legal
aid often find the coverage has narrowed and their matter may not be covered. As
no national standards exist, coverage varies widely throughout the country.
The result is a large population in Canada that finds itself struggling to
deal with legal issues, mostly women, children, people with disabilities, recent
immigrants, and Aboriginal peoples – those traditionally in the low-income
I will speak more about eligibility problems and the regional disparity in
coverage later. However, honourable senators, before I extol in greater detail
the problems and consequences of the current legal system in Canada, I would
provide a brief history of legal aid in this country.
The concept of legal aid developed in the 1970s as a means of providing legal
assistance to accused people who had low income. Beginning in 1973 with criminal
legal aid, the federal government, through the Department of Justice, entered
into cost-sharing agreements with the provinces. For civil law matters, funding
schemes were developed later in the 1970s and were part of the Canada Assistance
Plan, with the federal government providing 50-cent dollars to the provinces.
For both criminal and civil matters, the provinces retained control over how
legal aid would be administered and provided.
In 1990, the federal government capped its contribution to criminal legal aid
at current levels, approximately $86 million. However, this amount has decreased
yearly, and funding for criminal legal aid for the period 2001-02 is expected to
be under $80 million a year.
Legal aid money for civil law matters moved out of the Canada Assistance Plan
in 1994-1995 into the Canada Health and Social Transfer. This meant the 50-cent
dollars previously provided for legal aid services were discontinued; rather, as
part of the CHST, civil legal aid suddenly found itself competing for dollars
with health care, education and other prominent issues.
Honourable senators, I have provided this brief history of legal aid funding
in Canada to reveal a lack of commitment on the part of the federal and
provincial governments to provide the necessary funding to run adequate
provincial legal aid services in Canada. Consequently, fewer federal dollars are
allocated for provincial criminal legal aid programs, and recently civil legal
aid has been forced to compete for funding with crucial issues like health care
and education. The unfortunate result is an underfunded and ineffectual legal
aid regime that does not respond to the needs of the people it should serve.
The underfunded regime has resulted in the implementation of strict
eligibility requirements in order to maintain the system. Thus, fewer people are
accepted as clients for legal aid services. In Prince Edward Island, applicants
are considered eligible if they are on social assistance and they may be
eligible if their incomes fall within a specified range. Other factors included
in the determination are the applicant's assets and liabilities, the urgency of
the situation, the cost of the proceeding, and whether a reasonable person with
money would pursue the matter through private counsel. Applicants are also
expected to have examined private counsel options prior to applying for legal
aid in order to pay whatever they can afford for services rendered.
As I am sure honourable senators can imagine, this gauntlet of tests that the
legal aid candidate must pass prior to being accepted weeds out many applicants.
Unfortunately, many of those weeded out we would consider to be living in
poverty. Here is one example of a real-world consequence from these strict
requirements. Stewart, a 68-year- old grandfather on a pension, was accused of
fraud. He says he is innocent.
When applying for legal assistance, his pension of $877 per month is seen as
being too much income for him to be eligible for legal aid. He is about $44 over
the limit. Stewart's charge is serious. It will have enormous consequences for
him and his entire family. As a result of being denied legal aid for the sake of
about $40, he is forced either to defend himself or to use his own limited funds
in retaining costly private counsel. Unfortunately, with legal aid funding at
its current level, people in need, like Stewart, are being turned away.
Inadequate funding also means that those clients eligible for legal aid
services are forced to contend with long waiting periods and insufficient staff
to help. With only three legal aid lawyers in Prince Edward Island paid for by
social services to deal with child support issues for welfare recipients, there
is currently a six-month waiting period for qualified applicants. This means
that a parent on social assistance seeking help in the enforcement of a child
support payment must wait six months for the legal wheels to start turning.
Honourable senators, I submit to you that to be put in such a situation is
completely unacceptable. There is a huge segment of people in this country, in
middle and lower income groups, whose income is deemed not only too high to
qualify for legal aid but also too low to pay for the costly services of private
counsel. The people who are falling through the cracks in this system are the
ones who require the most protection from government: those living in poverty,
on social assistance or the working poor.
The working poor are likely the most disadvantaged, simply because the income
eligibility requirement is so low that often only those with social assistance
can benefit. The working poor, who may be underpaid or underemployed, are often
ineligible for legal aid and unable to afford private counsel. As you can
imagine, this is causing families and individuals hardship throughout the
Apart from inadequate federal and provincial funding, civil legal aid systems
in Canada suffer from the problem of interprovincial inconsistency in regard to
coverage. For all provinces, only those accused who face the possibility of
going to jail upon conviction and who have low income are eligible for criminal
legal aid. This provision holds true throughout the country and has existed
since the beginning of criminal legal aid.
For civil legal aid, however, there exists much less uniformity between
provinces. Legal aid coverage is determined by the province that administers the
program. Under civil legal aid, a distinction is drawn between family law
matters and other civil matters. Most provinces provide some form of civil legal
aid for family law. Cases are examined on their merit and often coverage only
extends to serious situations of abuse, or where children are at risk.
For example, legal aid in Manitoba provides assistance in cases concerning
child custody and access as well as support matters, including the alteration
and enforcement of existing orders. The Province of British Columbia provides
coverage for custody and access cases, but only on initial maintenance orders.
In other words, it does not provide coverage to alter or enforce existing
orders. For example, a parent in British Columbia, seeking legal help in regard
to altering her child custody arrangement, found that legal aid would not
provide assistance unless she could prove that the potential for serious harm
existed for the children. Had this woman been living in Manitoba, however, legal
aid would have immediately accepted her case, since the province's family law
coverage includes alterations and enforcement of existing orders in child
Honourable senators, this is just one example of the disparity that exists
throughout the country. The problem is not so much the confusion that results
from different provinces offering different services. Rather, it is the
unfairness that results from a system that arbitrarily places people in a
position of lesser justice, based on where they live.
The President of the East Prince Women's Centre of Prince Edward Island, Andy
Lou Somers, provides this thought- provoking remark: "How can you tell a woman
that there is justice in the system when legal aid would defend her spouse in
criminal court when he is accused of assaulting her but will not provide her
with a lawyer to help her leave him?" This statement exemplifies the resulting
unfairness of the current system's varying coverage schemes.
Honourable senators, I am not the only one concerned about the status of
legal aid and access to justice in this country. Many people in the legal
profession are beginning to speak out about the situation. The president of the
Canadian Bar Association, Daphne Dumont of Charlottetown, has made it her
mandate and has spent years pushing for an improved legal aid regime. She
...governments at both the federal and provincial level have failed their
constituents by neglecting the legal aid system throughout the country. Legal
aid is dangerously underfunded, depriving people of their democratic rights.
The former Chief Justice of Prince Edward Island addressed the issue of poor
access to the justice system at his retirement last year. Justice Norman
Carruthers expressed his concerns about the growing number of people coming to
court without legal assistance, defending themselves to the detriment of their
own case and the entire court, and causing delays to the already busy schedule.
He said that more money must be put into legal aid to reverse this troubling
Honourable senators, as members of the legislative branch of government, we
have often referred matters to the judiciary for their expert legal opinion. The
judicial branch is now appealing to us for support. From within, lawyers and
judges are aware of the problem of justice being denied to the common person.
Although it is the judiciary's responsibility to ensure that individuals are
treated equally before the law, it is our responsibility to ensure that all
citizens have equal ability to come before the law, to seek resolutions to their
problems. That is the intent behind the legal aid system in this country.
Honourable senators, I put it to you that Parliament's intention for legal
aid in Canada is no longer being met. It is time to view the justice system in
Canada in a similar vein as health coverage in that we insist that our health
care be accessible to all individuals, regardless of income. Though health care
may be the most important part of our nation's safety net, few would argue that
secure legal rights, including a right to representation in court, is also
Unfortunately, many people who have experienced problems with the legal aid
system often do not voice their concerns, since to do so would be an admission
of reliance on legal aid and belonging to a lower income class. This shame or
embarrassment does not accompany voiced concerns over health care. Therefore,
deficiencies in our health care system frequently receive much publicity.
Honourable senators, many of us in the chamber today, in our former lives in
the private sector, would not have given much thought to the plight of legal aid
as we were likely fortunate enough to obtain private counsel for our legal
matters. However, by providing one system of justice for low income people and
another for high income people, we are condoning and promoting lesser justice
based on status and wealth.
Obviously, honourable senators, there will always be a class system in our
society whereby the wealthier among us will have access to certain goods and
services unavailable to those less fortunate.
The Hon. the Speaker pro tempore: I regret to advise the
Honourable Senator Callbeck that her time has expired. Is she requesting leave
Senator Callbeck: Yes.
The Hon. the Speaker pro tempore: Is leave granted, honourable
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Please continue.
Senator Callbeck: However, I submit to you that justice and access to
a fair trial is not a service that should be distributed based on how much money
Honourable senators, the legal aid system in Canada is truly suffering. It
needs our immediate help, as parliamentarians, if it is to fulfil its mandate of
providing qualified legal assistance to the many who need it. I encourage all
honourable senators to take part in this inquiry. I hope that, through our
discussions, we will thoroughly examine this issue and come up with some
effective solutions so that all Canadians, regardless of their stature in life
or place of residence, are able to access justice and receive equitable
treatment in court.
Hon. Erminie J. Cohen rose pursuant to notice of March 27, 2001:
That she will call the attention of the Senate to the quality of life of
the military family and how that quality of life is affected by government
actions and by Canadian Forces policy.
She said: Honourable senators, I rise today to address a matter of great
importance to the more than 59,000 members of the Canadian Forces, their
families and the Canadian people. I refer to the quality of life of Canadian
On March 14, the Honourable Senator Lucie Pépin said in this chamber:
In working to improve the defence of our country, we must pay attention to
what is going on where our military personnel and their families live.
I welcome her future participation.
This topic was largely ignored for many years. In October 1998, the need for
meaningful action was finally identified and acknowledged. The House of Commons
Standing Committee on National Defence and Veterans Affairs produced a report
entitled "Moving Forward: A Strategic Plan for Quality of Life Improvements in
the Canadian Forces." In a March 1999 response, the government promised to act
on the report's 89 recommendations but warned that in some cases it might not
take the same approaches.
This was followed in December 1999 with an interim report by the Department
of National Defence on the progress made in implementing the "Quality of Life"
recommendations. Finally, in March 2000, we received the first annual report.
In May 2000, a document entitled "Report on the Canadian Forces' Response to
Woman Abuse in Military Families" was prepared by the Muriel McQueen Fergusson
Centre for Family Violence Research at the University of New Brunswick and the
RESOLVE Violence and Abuse Research Centre at the University of Manitoba, with
the support of the Canadian Forces. In response, the Canadian Forces released an
"Action Plan on Family Violence and Abuse." Last October, the Director of
Military Family Services developed a booklet to help Canadian Forces communities
identify and respond to family violence.
We look forward to hearing Senator Pépin's comments on these and other
It is clear that progress is being made, or at least attempted, on a number
of fronts relating to the quality of life in the military. However, it is not at
all evident that the various reforms are being felt by the people whose lives
they are intended to improve.
I welcome the formation of the new Standing Senate Committee on Defence and
Security. I hope that it will keep these issues front and centre.
Canada's military continues to face tremendous pressures as a result of
government budget cuts and growing demands. Those pressures have added to the
already considerable strains on Canadian Forces members and their families, who
must live their lives within the framework set for them by the military.
As a result of a 23 per cent cut in defence spending between 1989 and 1998,
the number of Canadian Forces personnel has fallen dramatically. Canada went
from 87,000 uniformed men and women in 1989 to about 59,400 today, with further
reductions forecast. They are also supported by a much smaller civilian
workforce, which has been reduced from 34,500 to under 20,000.
Meanwhile, there has been no corresponding decrease in the workload of the
Canadian Forces or any scaling back of the expectations placed on them. In fact,
Canada is deploying Canadian Forces personnel more frequently to more operations
than at any time since the Korean War.
Consider, honourable senators, that from 1948 to 1989 Canadian Forces members
were deployed in 25 operations. In contrast, since 1989, they have been deployed
on no fewer than 65 missions. They are doing much more with much less. This has
had a significant effect on the quality of life of military personnel and their
I have spent my entire life in civilian society and until last year was not
familiar with military life and its challenges. This changed in March 2000, when
I addressed a group of artillery officers' spouses at CFB Gagetown, an army
combat training centre near Oromocto, New Brunswick.
While a guest at the base, I had the opportunity to speak personally with a
number of military spouses. I was moved, impressed, and at times shocked by the
situations military families must deal with and the challenges they face.
Canadian Forces members get the attention they deserve, but it is their
spouses and children who are the unsung heroes of Canada's military. They
Due to the realization that most Canadians know very little about military
families and my own need to learn more, I arranged to return to CFB Gagetown to
speak with spouses and Canadian Forces members, from both the officer and junior
ranks, about their experiences, their adjustments and what it means to be part
of a military family. Although I had assurances of total cooperation from the
highest-ranking offices, it was important to me that the meetings be informal
rather than structured, in order to generate open, honest discussions about any
concerns they had.
When I returned last September, I was welcomed into their community and into
their lives. I met with about 45 people, individually and in groups, aged
approximately 25 to 45. They included officers and junior rank personnel, as
well as military spouses. Some of the spouses were francophones, who related
their experiences living in an anglophone environment. Some were members of the
The Camp Gagetown meetings provided a lens through which to view many aspects
of military life. I would not presume to claim my study was comprehensive or
that I am an expert. A number of the concerns I heard related specifically to
CTC Gagetown and to army life more generally, as many of the people interviewed
shared their experiences on other military bases. However, I realize that navy
and air force families could provide additional insights.
In spite of the concerns they voiced, many assured me that they like army
life and are proud of their contributions to Canada. I found it interesting that
the younger officers were more sensitive to the requirements and needs of the
families than their predecessors, who were part of the rigid culture of the
The people with whom I met also want Canadians to know of the challenges that
are part of the life they have chosen and want the government to examine and
address their concerns. As one pointed out, "The military is not just a job;
it's a lifestyle."
The aim of this inquiry, honourable senators, is to consider ways to improve
the living conditions of Canada's military families and, in so doing, to
celebrate their contribution.
Those living conditions are affected by a number of factors, which, in turn,
are characterized by a lack of control over aspects of day-to-day life that we
civilians take for granted. For example, the military tells you where you will
live and for how long, and often the type of housing in which you must live. It
also separates you from your family for long periods while at the same time
physically removing your family from its support network of relatives and
friends. The family is often cut off from civilian society as well, and can feel
isolated even within the military community because of rank or language
barriers. This affects the lives of army personnel and spouses.
Consider the problems caused by the frequent moves to which military
personnel and their families are subjected. While no one argues with the fact
that these moves are necessary for operational effectiveness, there was a strong
feeling that the military should be doing more to offset the hardships they
Many people were frustrated by their lack of input in the posting process.
One said, "I felt the career manager was determining our future for our
family." They acknowledged that they could submit posting preferences but said
that these preferences were often ignored. This feeling of lack of control was
particularly pronounced among junior ranks personnel and spouses and those who
had special-needs children or were caring for disabled relatives.
The Hon. the Speaker pro tempore: Honourable senators, it is
now six o'clock. Do I have permission not to see the clock?
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, the Agriculture Committee also has a hearing scheduled. Since they
have witnesses and did not expect the Senate to be sitting, we should grant the
same permission to that committee. Perhaps that order could also apply to the
The Hon. the Speaker pro tempore: Is it agreed, honourable
Hon. Marie-P. Poulin: Honourable senators, with leave of the Senate, I
move that the Standing Senate Committee on Banking, Trade and Commerce be
allowed to sit now, even though the Senate is sitting. A meeting was scheduled
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Resuming debate on the inquiry of the Honourable Senator Cohen that she
will call the attention of the Senate to the quality of life of the military
family and how that quality of life is affected by government actions and by
Canadian Forces policy.
Hon. Erminie J. Cohen: Honourable senators, before our discussion on
procedure, I was about to say that a frustration that arose repeatedly was the
fact that Canadian Forces personnel do not have the option of trading postings
with similarly qualified members who are available, as can be done in the United
Honourable senators, we all know that many families need two incomes to
achieve a comfortable standard of living, or sometimes just to make ends meet.
However, frequent moves can make it difficult for military spouses to find and
keep jobs, let alone build careers. Often, when a family is posted to another
base, the civilian spouse cannot find a job that pays enough to maintain their
previous standard of living, and the whole family suffers.
One of the Gagetown women told me she originally wanted a career in law, but
realized she could not have one as a military spouse. Some said they experienced
discrimination from employers because they move so often, and some suggested
that the military should develop a policy to help military spouses find
employment on bases. Furthermore, the extra child care responsibilities
associated with the lengthy absences of Canadian Forces members can make it even
more difficult for military spouses to find employment.
As a result of the difficulties in obtaining spousal employment, the standard
of living for some military families is not as high as it could, and should be,
in particular for those in the junior ranks. Many have had to visit the food
bank in Oromocto, the town in which the base is situated. It is a source of
shame that Canadian Forces members should have to rely on food banks to feed
themselves and their families.
It is evident that many Canadian Forces members, particularly those in the
junior ranks, are not adequately paid to begin with.
The pay issue was well documented in the "Quality of Life" report, and some
corrective measures have since been implemented. Last year, rank-and-file troops
finally got a 2.5 per cent pay raise. The government's latest spending estimates
earmarked a further $600 million for the military, with 40 per cent going to pay
increases. Many of those at my Gagetown meetings noted that the pay raise didn't
make much of a difference once taxes were factored in, and many complained their
rents were increased at the same time.
Honourable senators, the quality of life cannot be reduced to just a monetary
equation. As one of the participants said, "Even with pay raises, it's all the
other stuff." Some of that "other stuff" has to do with the long absences of
Canadian Forces members from their families during training or peacekeeping
assignments. These have become more frequent as a result of Canada's increased
participation in overseas missions and as a result of personnel cuts.
Some spouses described how an absence of six months or more can disrupt their
families for much longer than that and have long-term effects. Those left at
home must run the house and look after the children's needs. They develop their
own ways of doing things. At the same time, absent spouses get used to doing
things their way. As a result, there is a whole process of family reintegration
that must take place when Canadian Forces members return home.
During such separations, military spouses have traditionally relied on each
other for support. This unusual bonding is remarkable and a story in itself, and
one of celebration, but because of frequent moves, military families must
continually rebuild these support networks. This is made more difficult by the
fact that the traditional social separation between officers and junior ranks
appears to extend to their families as well.
In Gagetown, I was told that spouses are often reluctant to call on the
military for assistance because they are afraid they will be considered an
"administrative burden" and that this would hurt their military spouses'
performance evaluations. Some women did not even feel comfortable calling their
husbands overseas during family emergencies.
I was told, however, that when a Canadian Forces member is deployed on a long
overseas posting, the military would move his or her spouse to a so-called
"selected place of residence" in order to be closer to their immediate family.
Unfortunately, the way this policy is applied seems to lack common sense. For
example, there was one case involving a military wife who was pregnant and had
an infant at home when her husband was sent on a long posting. She was living
off base and wanted to move on to the base for support from the other spouses,
but she was told that she did not qualify because she lived too close. Instead,
the military offered to move her clear across the country, at great extra
expense, to be near her parents.
To be fair, I should point out that the Canadian Forces are slowly moving in
the right direction when it comes to providing support for military families. In
1991, the centrally-run Military Family Support Centre was developed. It is
implemented on military bases through Military Family Resource Centres. While
the people I spoke with at CFB Gagetown were generally supportive of the idea
behind such centres, there was criticism about the way they operate.
Most believed they were not providing the services they expected, especially
during family emergencies. There was a major confidence issue as well. Many
believed their requests for assistance and their conversations would be
transcribed and passed on to the military hierarchy. Almost everyone identified
problems with the centres' administration, such as the limited number of hours
during which they are staffed. These could be solved, they thought, if the
centres were under the jurisdiction of the base and not Ottawa. I believe the
resource centres have the potential to become valuable assets, but they cannot
be all things to all people.
The Hon. the Speaker pro tempore: I regret to interrupt the
honourable senator, but her time has expired. Is the honourable senator asking
for leave to continue?
Senator Cohen: Yes, I am.
The Hon. the Speaker pro tempore: Is leave granted, honourable
Hon. Senators: Agreed.
Senator Cohen: Substandard housing was also identified as a major
problem for families at CFB Gagetown. I heard many stories about mould and
mildew, odours, and poor insulation leading to ice buildup on windows and on
inside walls. A number of the people reported that the mould, in particular, had
caused respiratory problems and rashes, and aggravated asthma in their children.
Several told me about families moving off the base for health reasons – when
they did, the health problems lessened and often disappeared.
This aspect of military life was also covered quite thoroughly in the
"Quality of Life" report, and some actions have been taken since its release.
At the same time, I was told that Canadian Forces members often do not have a
choice about what house they will live in, and that larger houses seem to be
reserved for officers and their families. In particular, junior-rank members do
not appear to have any say at all in their accommodations, although officers can
sometimes turn down units that are not acceptable.
My Gagetown meetings confirmed that family violence also continues to be a
problem within the military as, unfortunately, it does in Canadian society at
large. I heard conflicting accounts as to the military's treatment of abusers,
with some people saying, "The military doesn't want to know about it," and
others claiming the military is tough on abusers.
Some victims are silent so as not to hurt their husband's career. One person
claimed that the 1950s family model perpetuated by the military culture, in
which many women have no power in the home, is a breeding ground for spousal
As Lieutenant-General Mike Jeffrey, the Commander of the Army, stated in a
recent press interview, "Weaning the army away from the old he-man attitudes is
as tough as weaning a smoker off the weed...but there's no choice...an army must
reflect the society that it is sworn to defend."
Honourable senators, there is much more to be said about this critical area,
and I know Senator Pépin will be commenting on it at a later date.
Many of the problems already mentioned are compounded in the case of families
where both parents are Canadian Forces members. For example, I spoke to one
former soldier who left the military because, had she stayed in uniform, she
would not have been able to follow her husband, who was also a soldier, to a
posting. I heard that female members continue to face discrimination, although
there has been progress in the past 15 years.
Consider also, honourable senators, the problem experienced by francophone
spouses whose families are posted to an anglophone community, or vice versa.
Some of the Gagetown participants told me that language barriers make it hard to
access medical help. The children also experience discrimination in the
schoolyard. The francophone spouses expressed a desire to learn the language
because of their social and professional isolation, and would therefore like to
have more intensive language training made available to them.
Participants also complained that the military often makes personnel take
their annual leave when it is convenient for the military, rather than when it
is convenient for Canadian Forces members and their families.
As well, there was the sense that military families are being
"nickelled-and-dimed." For example, participants mentioned that dependants no
longer qualify for free service flights and that spouses now have to pay to send
mail to Canadian Forces members who are posted overseas. There were many
concerns expressed about the poor quality of the new uniforms.
All of the concerns I heard from the parents I interviewed have an effect on
the children of military families. While I did not talk to any children, I have
permission to share with honourable senators part of an essay written by the
teenage son of an officer. The title is "They." He writes:
The thirteenth time now. All over Quebec, Ontario and the Atlantic provinces
I have moved from PMQ to PMQ (Permanent Married Quarters). Why do they call them
Nothing is permanent with the army. Every time I begin to settle down and
make some friends they decide a posting would be nice. Every time I begin to fit
in and start to like my new house they decide to move us. Every time I get a
girlfriend and I really start to like her, yeah, you guessed it, they decide to
They separate my family for a year and expect us to just live like normal. Is
my family's life normal? Is having a new school every year normal?
Honourable senators, while assessing the progress thus far in implementing
recommendations made in the "Quality of Life" report, bear in mind these few
additional comments made by the Gagetown participants. They are:
The military doesn't have the finances to support its members...How is it
going to look after its dependants?
You don't know the reality unless you're in it...Government report writers
don't see the day-to-day functions of the military.
I think a lot of positive action has been attempted. Theoretically, it works
very well on paper. The reality is that it's still not implemented. There are
still many prejudices against women, against children, against families.
Those meetings with women really work – I wish you could do this more often.
Finally, one witness said:
A lot of people are trying very hard to make this a good place to be for
our families and we're working really hard at it, but there's still a lot of
work to do for sure.
Honourable senators, these statements underline the importance of examining
the scope and impact of the various measures that are being undertaken to
improve the quality of life of our military. They also underline the importance
of keeping this issue squarely in the sight of Canadians and the politicians who
represent them. As Lieutenant-General Mike Jeffrey said:
We are trying to change the culture of an institution while protecting the
principles on which the institution is based.
He admitted that this was difficult. He said that it will not change
overnight, but he did say that what we can hope to change in the relative short
term is behaviour and conduct.
Honourable senators, this is indeed a propitious time. With the creation of a
standing Senate committee and the introduction of this inquiry, I feel confident
that discussion and debate on the quality of life in the military vis-à-vis the
recommendations proposed in the "Quality of Life" report will be implemented
in a way that accomplishes their stated objectives.
Honourable senators, what better place to reopen discussion and debate on the
quality of life in the military family than right here in the Red Chamber. As
one of the Gagetown witnesses pointed out, it does not matter how many fine
words the government prints, what matters is the effect they have. If the
quality of life of military families is not appreciably improved, what good are
all the reports in the world?
Honourable senators, I thank you for your attention and I hope that this
inquiry will motivate you to enter into debate.
I ask leave of the Senate to table a report in which I summarized the
testimony of the participants in the Gagetown meetings.
The Hon. the Speaker pro tempore: Honourable senators, is leave
granted to table the report?
Hon. Senators: Agreed.
Hon. Lucie Pépin: Honourable senators, I should like to thank Senator
Cohen for drawing our attention to the issue of the quality of life of military
families, which is an important one.
My honourable friend met with military women in informal settings to ensure
that her report was reliable and factual. Did the women wish to have follow-up
meetings? What action do they wish us to take?
Senator Cohen: I cannot begin to tell honourable senators how
important it was to meet with women in an informal setting – and by that, I mean
pizza parlours and little restaurant gatherings – without army brass present,
just the women, my researcher and myself. They felt so free to express their
concerns and their problems that it was a wonderful experience. When we left,
they asked us to please tell our colleagues to send more women. They did not
want to let the bureaucrats decide what should happen to them. They wanted us to
relay their message.
I feel that it was a valuable experience. I believe that many of us should
make personal visits to army bases and other areas without being accompanied by
those who represent the formal structure of government.
Hon. Donald H. Oliver, pursuant to notice of March 20, 2001, moved:
That the Senate endorse and support the following policy from Liberal Red
Book 1, which recommends the appointment of "an independent Ethics Counsellor
to advise both public officials and lobbyists in the day-to-day application of
the Code of Conduct for Public Officials. The Ethics Counsellor will be
appointed after consultation with the leaders of all parties in the House of
Commons and report directly to Parliament.";
And that this Resolution be sent to the Speaker of the House of Commons so
that he may acquaint the House of Commons with this decision of the Senate.
He said: Honourable senators, I believe it to be very timely that we begin
debate today on this motion as controversy swirls around the Prime Minister and
his Ethics Counsellor regarding the Prime Minister's conduct relating to the
Auberge Grand- Mère. The House of Commons today debates a motion in which the
House calls for the establishment of an independent judicial inquiry into the
whole Shawinigan affair. I do not want to dwell upon the facts of that case and
I do not want to rehash the facts in the debate on this motion, but I submit
that, had a person in whom Parliament had placed authority and trust – an
independent ethics counsellor with the power to investigate all the facts –
pronounced on this matter and the involvement of the Prime Minister, the matter
would have been over some time ago with the outcome, whatever it was, accepted
by parliamentarians and the Canadian people.
Senator Taylor: That is wishful thinking.
Senator Oliver: It would have been accepted, just as we accept the
judgments or decisions rendered by our judiciary – men and women operating with
security of tenure, not beholden to the one who appointed them – interpreting
the law in a just and even- handed manner.
The motion of which I gave notice two weeks ago, is taken directly from the
Liberal Red Book 1 and is similar to the motion debated in the House of Commons
on February 8 of this year, a motion defeated by the Liberal majority in the
House of Commons. It is my hope that, in the less political atmosphere of the
Senate, we can join together senators on both sides of the house to support this
motion, realizing that we should be able to impact the discussions in the other
Honourable senators on the other side should also note that a commitment
similar to that contained in Red Book 1 regarding the Ethics Counsellor was also
contained in the election platform of the federal Progressive Conservative Party
in the 2000 general election.
It is now argued by the government that the Prime Minister is ultimately
responsible for ethics and therefore we could not have an ethics counsellor
reporting to the house; but the Prime Minister, as leader of the government, is
ultimately responsible for many things. He is responsible for the Official
Languages Act, for the privacy law and for the Freedom of Information Act.
However, that does not prevent us from having an Official Languages
Commissioner, a Privacy Commissioner, and an Information Commissioner with
investigatory powers. reporting to Parliament. This argument against appointing
an independent ethics counsellor essentially fails because equivalents are in
fact in place in other significant areas.
In fact, establishing this independent office would, as was pointed out in
debate on this matter in the other place, complete the circle of accountability.
Within that circle would be the financial watchdog, our Auditor General, the
Privacy Commissioner, and the Information Commissioner, who has done so much
lately to alert Canadians to unnecessary and unwarranted secrecy in government
in Canada. With the creation of the position of independent ethics counsellor,
Canadians would be able to see the checks provided on government activity by
independent officers of Parliament.
In March 1997, the report of the Special Joint Committee on a Code of Conduct
for Parliamentarians was tabled. I was privileged to table the report in this
chamber as the co-chair of that committee from the Senate. Peter Milliken, MP,
now Speaker of the House of Commons, was the co-chair from the House of Commons.
As well as recommending a code of conduct, the joint committee recommended
that such a code be enforced by what we called a "jurisconsult," who would be
an officer of Parliament, and who would report to a joint committee on official
conduct. The jurisconsult model recommended in this report could serve as a
model for the ethics counsellor proposed in this motion.
We believed at that time that the jurisconsult would be appointed by a
resolution of both the House of Commons and the Senate for a specific term that
could be extended. The jurisconsult could only be removed from office by a joint
resolution of the Senate and the House of Commons.
The jurisconsult would apply and enforce a code of conduct that would apply
to all parliamentarians, and report annually to Parliament through the Speakers
of both Houses. Specifically under the heading "duties and procedures," the
jurisconsult was to "review and to investigate complaints about the conduct of
parliamentarians and to report the findings to the Joint Committee." This would
allow transparency and fairness for all parliamentarians in their financial
dealings, and with regard to any complaints of impropriety lodged against them.
Yes, we know that the Prime Minister has published a Conflict of Interest and
Post Employment Code for Public Office Holders. The ethics counsellor is charged
with the administration of this code, and the application of conflict of
interest compliance measures. However, because the ethics counsellor is
appointed by and responsible only to the Prime Minister and has no real
investigatory powers, the enforcement and application of this code is therefore
suspect, especially when the person being investigated, or at least under a
cloud of suspicion, is the Prime Minister.
When one goes back historically, it was never envisioned that the person
whose behaviour was suspect would be the Prime Minister. When we look at the
Pearson era, one only has to review Prime Minister Pearson's letter dated
November 30, 1964, to his cabinet ministers to see the high standards that Prime
Minister Pearson demanded of his cabinet ministers and, by inference, himself. I
quote from that letter:
In order that honesty and impartiality may be beyond doubt, members of
ministers' staffs, equally with ministers, must not place themselves in a
position where they are under obligation to any person who might profit from
special consideration or favour on their party, or seek in any way to gain from
special treatment from them; equally, a staff member, like a minister, must not
have a pecuniary interest that could even remotely conflict with the discharge
of his public duty.
These are the basic standards of conduct which have in fact been generally
observed. We must be able to rely on them completely as those responsible for
the conduct of public business. There will undoubtedly be additional remarks
that you will want to express to your own staff, as I will to mine, related to
special circumstances of your department.
The essential thing is to ensure that all appreciate the grave
responsibility, not only that we have but that the members of our staffs and
others in positions of authority have, to maintain the confidence of the people
of Canada in the probity of government in this country.
I need hardly add that, in the last analysis, the responsibility in all these
matters falls on all of us as ministers.
More recently, in Great Britain under the current Prime Minister, a
comprehensive ministerial code of conduct was issued in 1997. It dealt in depth
with a number of issues, but one in particular bears repeating here as it has
some relevance to the case in which the Prime Minister presently finds himself.
Under Part I, "Minister of the Crown," paragraph iv states:
Ministers should be as open as possible with Parliament and the public,
refusing to provide information only when disclosure would not be in the
public interest, which should be decided in accordance with relevant statutes
and the Government's Code of Practice and Access to Government Information.
Paragraph viii states:
Ministers in the House of Commons must keep separate their role as Minister
and constituency Member.
Finally, in Part 6, entitled "Ministers' Constituency and Party Interests,"
paragraph 64 states:
Where Ministers have to take decisions within their Departments which might
have an impact on their own constituencies, they should, of course, take
particular care to avoid any possible conflict of interest.
Honourable senators, I believe that if we had a code of conduct that
contained these statements administered by an independent ethics counsellor, a
jurisconsult, the affair Auberge Grand-Mère would have been disposed of one way
or another, conclusively, months if not years ago.
We as senators owe it to Parliament to put aside petty political differences
and join together in support of this motion. We will send a clear message to the
House of Commons and to the people of Canada regarding our belief in the need
for an ethics counsellor to Parliament an ethics counsellor with proper
investigatory powers, enforcing a comprehensive code of conduct applicable to
Hon. Lorna Milne, pursuant to notice of March 29, 2001, moved:
That the Standing Senate Committee on Legal and Constitutional Affairs be
authorized to examine the Chief Electoral Officer's Report for 2000 on the
37th general election; and
That the Committee submit its report no later than June 30, 2001.
She said: In brief explanation of this motion, I should point out to
honourable senators here that the Standing Senate Committee on Legal and
Constitutional Affairs is in the unusual position right now of having no bills
before it. In the last session of Parliament, when we were discussing the last
Elections Act, the Chief Electoral Officer appeared before us and offered to
come back and speak to us at any time. I will quote him. He is talking about the
accuracy of the electoral lists:
We made a presentation at the Advisory Committee of Political Parties about
the concession of the list, about its accuracy at any one time. We went into
detail in front of all the political parties. I did the same thing with the
House of Commons Committee on Procedure and House Affairs, and I am ready to
come back to this committee at any time, Madam Chair, to give you the same
presentation, so that I can address, in a much more intelligent way than I have
been able to do this evening, all the questions put to me about the accuracy of
the register. I would very much appreciate that opportunity.
Since we cannot invite Mr. Kingsley back to the committee without an order of
reference from this place, we are asking for that order of reference so that he
may come and appear before us tomorrow afternoon when the Senate rises and talk
about the accuracy of the electoral lists in the last election in the context of
his report, since he appeared before the comparable House of Commons committee
I should also point out that Mr. Kingsley is on leave this week but has made
arrangements to come back and appear before the committee tomorrow.
Leave having been given to revert to Motion No. 44:
Resuming debate on the motion of the Honourable Senator Maheu, seconded by
the Honourable Senator Setlakwe:
That this House:
(a) Calls upon the Government of Canada to recognize the genocide of the
Armenians and to condemn any attempt to deny or distort a historical truth
as being anything less than genocide, a crime against humanity.
(b) Designates April 24th of every year hereafter throughout Canada as a
day of remembrance of the 1.5 million Armenians who fell victim to the first
genocide of the twentieth century.–(Honourable Senator Di Nino).
Hon. Lois M. Wilson: Honourable senators, I speak in support of the
motion of the Honourable Senator Maheu. For the survivor generation, it is
inconceivable that the world would ever doubt what had occurred. Many articles
and books appeared subsequently to document the events of 1915 to 1923 in
Armenia. The U.S. Ambassador to Turkey from 1913 to 1916, in his 1918 published
account, told what had transpired in the Ottoman capital during the deportation
and massacres, the admissions and denials of Turkish officials, and specifically
with relation to the Armenian genocide.
Arnold Toynbee, the distinguished historian, has written movingly and
documented events in several books, one of which is called The Armenian
Atrocities: the Murder of a Nation. In 1985, a permanent Peoples Tribunal, which
has evolved from the tribunal established by Bertrand Russell, considered the
case of the Armenian genocide during a sitting at the Sorbonne in Paris. The
tribunal's verdict confirmed that the Armenians had been victims of genocide,
that the crime was not subject to any statute of limitations, and that the
United Nations and its member states should recognize the "reality of the
genocide and take..." measures to mitigate its effects. The events, as
documented by historians, scholars and witnesses, are consistent with the
definition of "genocide" in article 2 of the Geneva Convention of 1946.
There have been numerous international affirmations of the Armenian genocide.
The United Nations Economic, Social and Cultural Commission on Human Rights, in
July 1985, declared as follows:
Toynbee stated that the distinguishing characteristics of the 20th century in
evolving the development of genocide are that it is committed in cold blood by
the deliberate fiat of holders of despotic political power, and that the
perpetrators of genocide employ all the resources of present day technology and
organization to make their planned massacres systematic and complete.
Among other examples of genocide, the document goes on to say, are the Nazi
genocidal policy, the Ukrainian pogrom of Jews in 1919, the Tutsi massacres of
Hutu in Burundi in 1965 and 1972, the Paraguayan genocide of Ache Indians prior
to 1974, and the Khymer Rouge genocide in Kampuchea between 1975 and 1978. It
would seem pedantic to argue that some terrible mass killings are not
legalistically genocide, and just a "tragedy."
At least 1 million, and well over half of the Armenian population are
reliably estimated by independent authorities and eye witnesses to have been
killed or death marched. This is corroborated by reports in the United States,
German and British archives, and of contemporary diplomats in the Ottoman
Empire, including those of its ally, Germany. Though the successor Turkish
government helped to institute trials of a few of those responsible for the
massacres at which they were found not guilty, the present – that is, 1985 –
official Turkish contention is that genocide did not take place, although there
were many casualties and dispersal in the fighting and that all evidence to the
contrary is forged. Yet one must say that even in Turkey there is now some
dissent from this official view.
The Belgian Senate passed an Armenian genocide resolution in 1998. The French
Parliament did the same in January 2001, leading Turkey to cancel an array of
contracts with French companies. In the U.S.A., the Armenian National Institute
bought the old National Bank building two blocks from the White House, with the
aim of transforming it into a place that will preserve a memory.
The act of genocide is also supported by the Commission of the Churches on
International Affairs of the World Council of Churches in 1984, a group that I
chaired for some years. I met some of that committee when I was in Germany
recently and we talked about this matter and they reaffirmed that position. They
were also totally surprised that the authenticity of the historical genocidal
event is still a matter of debate in Canada.
Let me say a word about my personal involvement in this issue. During 1980,
when I was moderator of the United Church of Canada, many orphans of the 1950
genocide were brought to Canada under the care of my church, which safely stored
their birth certificates for future use. They were called the Georgetown boys.
In 1980, when they turned 65 and became eligible for Canadian pensions, I had
the honour to give their own birth certificates back to them. I know some of
these people and their history. I strongly support this motion and I hope the
Senate does likewise.
On motion of Senator DeWare, for Senator Di Nino, debate adjourned.
The Senate adjourned until Wednesday, April 4, 2001, at 1:30 p.m.