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Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

1st Session, 37th Parliament,
Volume 139, Issue 29

Thursday, April 26, 2001
The Honourable Dan Hays, Speaker


Thursday, April 26, 2001

The Senate met at 1:30 p.m., the Speaker in the Chair.



Canada Book Day

Hon. Joyce Fairbairn: Honourable senators, I would not want the week to go by without drawing attention to what is now an annual ritual called Canada Book Day. This day was celebrated on Monday, when we were not sitting. I want to ensure that senators remember that there is a moment during the year when people across Canada — young children, writers themselves — celebrate our history and our authors, and, most particularly, invest in young children a love of reading that will carry them through the rest of their lives.

I spent Canada Book Day at the Calgary Public Library with four classes of students from the ages of five through to eight. The atmosphere was lively and fun. The students were engaged and were right into their books.

This brings me to the happy moment that I have enjoyed so much over the last six years, and that is continuing to celebrate the abiding friendship between myself and the Leader of the Opposition, Senator Lynch-Staunton. Today, in my quest to keep him up to date with our authors, I am offering a book of letters written between 1976 and 1995 by Robertson Davies. It is called For Your Eyes Alone. His letters are described as being as beautifully written as his novels.

Hon. Senators: Hear, hear!

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I should like to thank the Honourable Senator Fairbairn for her kind gesture and for reminding us of the importance of literacy. I want to congratulate her on her recent, well-deserved reappointment as the minister's special adviser on literacy.

In previous years, it has been difficult for me to find an appropriate book in return for the one the honourable senator chooses so wisely and which I enjoy so much. This year, however, the choice was very easy. The author is one of our members. She is a senator. She sits next to Brenda Robertson, and her name is Pat Carney. It is with great pleasure that I offer to Senator Fairbairn Trade Secrets: A Memoir by Pat Carney, who I am sure will give the honourable senator an appropriate dedication the next time she is in Vancouver.

Anniversary of Chernobyl Nuclear Accident

Hon. A. Raynell Andreychuk: Honourable senators, on this day, April 26, 15 years ago, the Chernobyl accident occurred. Its horrific consequences are still being felt around the world, but more particularly and poignantly in Ukraine. The Chernobyl nuclear accident brought disaster to the peoples of Ukraine, Belarus, Russia and other European countries. However, its consequences and the need to rethink nuclear strategy and safety with respect to reactors for non-military use are imperative for all countries. In Ukraine alone, Chernobyl took thousands of lives with a painful consequence to many children, causing thyroid gland cancer and putting some 70,000 workers into the disabled category, the consequences of which we are uncertain to this day. Ten thousand hectares of fertile land have been contaminated and could be classed as a dead zone.

Ukraine, in its delicate and fragile reformation to a democratic and independent state, has had to spend over $1 billion to eliminate the consequences of the accident, but the human and financial costs are far from over.

The memorandum of understanding concerning the shutting down of the Chernobyl nuclear power plant and the international assistance to Ukraine between the G7 countries, the European Union and the government of Ukraine was signed in Ottawa in 1995. Despite serious economic troubles and the shortage of electricity for Ukraine, on December 15, 2000, Ukraine completed fully its international obligations by shutting down the Chernobyl nuclear power plant.


While Canada has given financial and technical assistance, the problems for Ukraine as a consequence of Chernobyl are far from over. I wish to pay tribute to the thousands of Canadians who donated generously of their money, time and expertise to assist Ukraine and, in particular, to assist the children of this disaster. However, the treatment of thousands of victims remains vital, and there is a lack of infrastructure for the decontamination of the Chernobyl zone.

Honourable senators, it is a time to reflect on the loss of thousands of lives, but it is also a time to renew our dedication to assisting Ukraine in overcoming this disaster and to ensuring that this type of disaster cannot be repeated anywhere in the world.


Canadian Institutes of Health Research

Hon. Yves Morin: Honourable senators, a year ago today, the Canadian Institutes of Health Research officially undertook their new mission. I had the honour of helping to establish these new institutes.

Last July, the board of directors, chaired by the internationally renowned geneticist, Dr. Allan Bernstein, established 13 virtual institutes, which combined all research in the health field: biomedical research, clinical research, research into the health care distribution systems and research into health of populations.


Canadian scientists in our hospitals, universities and other research centres from coast to coast can now be linked through this network of institutes. The bottom line is that this virtual dream has now become a reality.

Honourable senators, I am proud to be a member of the government which has not only had the foresight to create these unique organizations, these Canadian Institutes of Health Research, but also has committed in the Speech from the Throne to increase the funding for the coming year. By investing in today's research, all Canadians will benefit tomorrow.

National Defence

Replacement of Sea King Helicopters

Hon. J. Michael Forrestall: Honourable senators, I should like to quote extensively from a recent letter to the editor from Lee Myrhaugen, a retired colonel who is the coordinator of Friends of Maritime Aviation. The letter reads:

Recently a number of newspapers carried a letter from Mr. Rod Skotty, Director of the Maritime Helicopter Program, Lockheed Martin Canada, applauding the Ministers of National Defence and Public Works for their prudence in selecting an "internationally accepted procurement strategy" for the purchase of Canada's new fleet of maritime helicopters. The procurement strategy the Canadian Government is proposing, and which Mr. Scotty endorses, would see two Prime Contractors selected, one for the Helicopter and, later, one for the Mission Systems' Integration. A careful examination of the statements Mr. Skotty uses to back up his assertions would reveal that many of them are misleading, and some are even false. The purpose of this letter is to provide your readers a clearer understanding of the issue.

Over 20 years ago, the U.S. Navy was forced to award two contracts for the procurement of frigate-borne S8-60B LAMPS Mk III helicopters. Back then, systems integration was a new discipline and helicopter manufacturers lacked the expertise to offer a single and total package solution. Two contracts were a necessity, not a choice. The success of the LAMPS program was clearly not a product of the split contract, but rather was due to the tenacity and effort of the well-staffed U.S. Navy Program Office which managed that highly complex contractual arrangement. In that dual contractor situation, the United States Government became the de facto Prime Contractor. Such a responsibility for any government carries a high cost in terms of time, the need for skilled personnel and the money...

Mr. Skotty went on to say that the U.S. Government employed the same procurement concept in other programs, as did the United Kingdom and Spain. In fact, the U.S. Government abandoned the dual-contract concept in 1987 when it awarded the SH-60F maritime helicopter Prime Contract to Sikorsky, which became responsible for the mission systems and the helicopter in an all-encompassing contract. The U.K. Government adopted a process whereby the systems integrator would be the Prime Contractor in a dual contract process similar to that which the Government of Canada is proposing to replace our Sea Kings. However, what Mr. Skotty does not point out is that the project has been reported by the U.K. National Audit Office to be hundreds of millions of dollars over budget and years behind schedule. Spain bought its helicopters as a foreign military sale directly from the U.S. Government and thus had no say in the procurement process.

The focus of all this should be on delivering the "best value" helicopter to the Canadian Forces in the most cost-effective manner. Given the advances in computing systems design —

The Hon. the Speaker: I am sorry, Senator Forrestall, but your time has expired.

Commemoration of the Holocaust

Hon. Jerahmiel S. Grafstein: Honourable senators, yesterday I said: History never lies; history just takes time to tell the truth.

This week commemorates the Shoah, the Holocaust. What should we commemorate?

Let me briefly conclude my statement of yesterday. Yesterday, I made reference to Constantine's Sword, a 700-odd page work recently published by James Carroll, a respected Catholic scholar and former priest. This book chronicles the history of the Church and the Jews through the ages. Let me share some of his conclusions.

Repentance is more than an individual act. All depends on future conduct. So each of us must ask ourselves whether the deadly virus of anti-Semitism continues to seep through the catechism, the teachings of the Church, through the Mass, to the masses. Is a "mea culpa", even "mea maxima culpa," enough? Is the lesson of the Shoah yet to be learned or even taught?

And why, honourable senators, must we still ask ourselves these questions 50 years later? Does recent history augur well for the future of the human condition? Meanwhile, the Shoah passes understanding. It remains beyond imagination.

War Museum

Opening of Gun Sculpture Exhibit

Hon. Douglas Roche: Honourable senators, I call to the attention of the Senate a very special exhibit that is opening today at the War Museum here in Ottawa, with the Honourable Deputy Prime Minister Herb Gray officiating.

The exhibit is a sculpture made of 7,000 guns and small arms that were used in combat zones around the world. These guns have been collected and melded together into the form of a prison cell, where one can enter and there experience the overwhelming destruction of life that occurs in modern-day conflicts.

Rather than dwelling on war, the sculpture elevates our thoughts to a world without violence. The two sculptors, Sandra Bromley and Wallis Kendal, are accomplished artists who live in Edmonton, where the exhibit opened more than a year ago. From there, it has travelled around the world and will next be seen at the United Nations in New York when the UN Small Arms Conference occurs this summer.

Honourable senators, this gun sculpture is a true work of art for peace and an inspiration for the job of peacemaking. It can be seen at the War Museum on Sussex Street for the next two months.

Correction to Comments Made During Debate on Bill C-8

Hon. David Tkachuk: Honourable senators, yesterday in asking a question of Senator Angus after his speech, I said that the speech was distributed to the media by Senator Kolber and I found out that today that this was not true. I just assumed it was so because the media were there. I do not like to misinform honourable senators so, on behalf of Senator Kolber and myself, I wish to correct that misinformation.



Federal Law-Civil Law Harmonization Bill, No. 1

Document Tabled

Hon. Pierre Claude Nolin: Honourable senators, under rule 28(4), I request leave to table a document.

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

Hon. Senators: Agreed.

Senator Nolin: Honourable senators, I am tabling with the Clerk, as an integral part of the work of this House, a copy of a magazine article that appeared in 1988, entitled "Meech Lake: Conflicting Views of the 1987 Constitutional Accord."



Sir John A. Macdonald Day and Sir Wilfrid Laurier Day Bill

Report of Committee

Hon. Michael Kirby, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:

Thursday April 26, 2001

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its


Your Committee, to which was referred Bill S-14, An Act respecting Sir John A. Macdonald Day and Sir Wilfrid Laurier Day, has, in obedience to the Order of Reference of Tuesday, February 20, 2001, examined the said Bill and now reports the same without amendment.

Respectfully submitted,



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

On motion of Senator Kirby, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.

Conference of Mennonites in Canada

Private Bill to Amend Act of Incorporation—Report of Committee

Hon. Lorna Milne, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Thursday, April 26, 2001

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its


Your Committee, to which was referred Bill S-25, An Act to amend the Act of incorporation of the Conference of Mennonites in Canada, has, in obedience to the Order of Reference of April 4, 2001, examined the said Bill and now reports the same with the following amendment:

(a) on page 1, by replacing lines 27 to 29, with the following:

"2. Sections 1 to 5 of the Act are replaced by the following:

1. (1) The Corporation created by chapter 91 of the Statutes of Canada, 1947, is continued as a body corporate under the name "Mennonite Church Canada".

(2) The Corporation consists of those congregations of Mennonites and conferences of Mennonites that are corporate members of the Corporation on the coming into force of this Act and such other congregations of Mennonites, conferences of Mennonites or other entities as may become corporate members thereof.

2. (1) The head office of the Corporation"; and

(b) on page 2, by replacing line 6 with the following:

"3. (1) Subject to this Act, the Corpor-".

Respectfully submitted,



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

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


National Defence

Replacement of Sea King Helicopters—Independent Legal Advice on Dispute Between EH Industries and Government

Hon. J. Michael Forrestall: Honourable senators, I wish to clarify a question I asked yesterday. I am not sure whether I owe the Leader of the Government in the Senate an apology. It is with regard to her response to my question with respect to seeking legal counsel among the recently retired judiciary on the procurement process and on the decision that had been handed down and whether the government had sought similar advice with respect to the Maritime Helicopter Project, not the search and rescue program. If I misunderstood her, I apologize. If it was in fact the Maritime Helicopter Project, then we were both on the same topic, and I wonder if she is in a position to answer the question.

Hon. Sharon Carstairs (Leader of the Government): I thank the honourable senator for that. I understand that the question was with respect to the Maritime Helicopter Project.

Senator Forrestall: I will have a look at that. I do extend my apologies for having misunderstood yesterday.

Possible Sale of Portion of CFB Shearwater

Hon. J. Michael Forrestall: It has come to my attention, honourable senators, that the Department of National Defence is about to sell off 1,000 acres of Canadian Forces Base Shearwater, including the main north-south runway, and that it is then to become a four-lane highway for the metro region. Many of you will realize that the end of that runway is virtually out in the Atlantic Ocean, and that therefore it is pretty hard for that to be in the midst of Metro Halifax.

In my opinion, of course, it is a very shortsighted proposition. The north-south runway is bisected by the east-west runway, which is used primarily by Sea Kings. This would eliminate any future possibility for an international air show, the continuation of what has become one of the finest air shows in Canada, and an air show which attracts hundreds of thousands of people to that part of the region. Could the Leader of the Government shed some light on this issue? Could she tell us whether the project is to go through, and what position the government is taking with respect to the future economic development of that area for the benefit of the surrounding community?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I have many fond memories of the Shearwater base when it used to be the centre for the entire airforce for Nova Scotia and more particularly for Halifax when I was a child. That is where we went.

As to the specific question, I am afraid I do not have an answer, but I will try to obtain it for the honourable senator.

Senator Forrestall: Would the minister be kind enough to have conversations with her colleagues and use her not inconsiderable influence not only as the Leader of the Government in the Senate but as a very prominent Haligonian to ask him to block, if he would, the runway transfer before it is too late? As I have suggested, it will be a major impediment to economic growth. Beyond that, to develop what could be a four-lane highway through highly built-up residential communities with an extraordinary large number of younger children would seem to me to constitute an unparalled risk for those who live nearby, and I cannot imagine where the highway would come from or go to.


Senator Carstairs: Honourable senators, as the honourable senator knows, decisions concerning highway construction are primarily made by provincial governments and not by the federal government. I am familiar with the Eastern Passage area, the area through which this potential highway would go. I will speak to the honourable minister.

Defence and Security Committee

Request for Date of Organizational Meeting

Hon. Michael A. Meighen: Honourable senators, my question is directed to either the Deputy Leader of the Government in the Senate or to the Leader of the Government in the Senate. I am sure both have the answer. I am asking this question to assist our shy and retiring colleague Senator Rompkey, who is too embarrassed to ask.

Could the minister or her deputy tell us when the organizational meeting of the newly constituted and established Defence and Security Committee might be called?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I am afraid that is not a question that the Honourable Deputy Leader of the Government can answer. Thus, I will answer for him.

It is our intention to call an organizational meeting of the committee as soon as possible. An organizational meeting of the Human Rights Committee will take place on Tuesday next. However, one of the participants on the committee about which Senator Meighen asks will not be here next week. I refer to Senator Kenny. I hope to delay that meeting until he returns. However, if I see an urgency arise, I will call the meeting for early next week.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw to your attention the presence in our gallery today of the participants in the Forum for Young Canadians, many of whom you met this morning.

Welcome to the Senate of Canada.

Hon. Senators: Hear, hear!



Business of the Senate

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, we would like to start with Item No. 1, moving to No. 4 and then to revert to Orders of the Day as they stand, namely Item Nos. 2, 3, 5, 6 and 7.

As well, honourable senators, this being the last sitting at which we will be able to discuss Bill S-4, and since a number of senators have indicated a desire to speak, if the time normally allocated for a speech has been exceeded, I will be obliged to refuse any extension, in order to allow all those wishing to speak to have time to do so.

Federal Law-Civil Law Harmonization Bill, No. 1

Third Reading

On the order:

Resuming debate on the motion of the Honourable Senator De Bané, P.C., seconded by the Honourable Senator Poulin, for the third reading of Bill S-4, A First Act 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,

And on the motion in amendment of the Honourable Senator Grafstein, seconded by the Honourable Senator Joyal, P.C., that the Bill be not now read a third time but that it be amended,

(a) on page 1, by deleting the preamble; and

(b) in the English version of the enacting clause, on page 2, by replacing line 1 with the following:

"Her Majesty, by and",

And on the motion in amendment of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Moore, that the Bill be not now read a third time but that it be amended in the preamble, on page 1, by replacing lines 5 to 7 with the following:

"Province of Quebec finds its principal expression in the Civil Code of Québec;".

And on the motion in amendment of the Honourable Senator Moore, seconded by the Honourable Senator Joyal, P.C., that the Bill be not now read a third time but that it be amended in the preamble, on page 1, by replacing lines 15 and 16 with the following:

"two major legal traditions gives Canadians enhanced opportunities worldwide and facilitates ex-".

Hon. Joan Fraser: Honourable senators, in response to Senator Murray's most diplomatic suggestion, I would like someone from the government side to reply to the questions raised by Senator Watt.


I am delighted to reassure Senator Watt that the bill we are discussing does not refer to a single Quebec people. It refers simply to the unique character of Quebec society in the context of civil law, the civil law tradition. The civil law of Quebec, of course, applies to everyone who lives in Quebec, whatever that person's language, ethnicity or other affiliation.

I am delighted to say that this bill does not affect Aboriginal rights in any way. It does not affect the Indian Act or any other federal law or any other law of any kind affecting Aboriginal people. It does not affect the bylaws of Indian bands. It does not affect customary law. It certainly does not affect section 35 of the Constitution Act, which of course would take a constitutional amendment. Thus, I argue that a non-derogation clause is not needed.

All this bill does is adjust the vocabulary of certain federal acts to ensure that they take into account both the common-law tradition and the civil-law tradition within Quebec. Thus, the courts and all ordinary Canadian citizens may understand with perfect clarity exactly what it was that the federal legislature meant. This has not been the case with some pieces of federal legislation until now.

For example, honourable senators, this bill affects only things like the Federal Real Property Act, the Bankruptcy and Insolvency Act, the Crown Liability and Proceedings Act and other matters of that nature. It has absolutely nothing to do with Aboriginal rights in any way. In no way does it impinge on Aboriginal rights or the identity of Canada's Aboriginal peoples. I would have great difficulty supporting it if it did so.

Honourable senators, I do support this bill. I believe it is appropriate in this context to recognize the unique character of Quebec society as shown in the civil-law tradition, which is all we are talking about here.

Hon. Lowell Murray: Honourable senators, we are labouring under a real time limitation today. Therefore, honourable senators will understand that I am cutting my speech down to size as we go.

Yesterday, just before adjournment, Senator Moore rose to affirm the uniqueness of Nova Scotia's history and culture. Why? So that he could deny and reject the simple recognition of Quebec's uniqueness in the preamble to this bill. Is that what this debate is coming to? Is that what the country is coming to, a zero- sum game in which what may appear to be a small symbolic gain for one part of the country must necessarily be seen as a loss for another part of the country? This zero-sum mentality is the kind of thing that will bring the country down.

I am saddened by this debate, honourable senators. I am saddened by its echoes of similar, unnecessarily divisive debates in the past. What is it all about? A simple preambular reference to the effect that the civil-law tradition of Quebec reflects the unique character of that society.

Several honourable senators have seized this issue as an occasion to launch a full-blown constitutional debate that is grossly disproportionate and out of context to the measure that is now before us. These senators are guilty of overkill.

We had a resolution in the Senate in 1996 to affirm the distinctiveness of Quebec society. We said that Parliament and the executive ought to be guided by this concept.


Yesterday afternoon, Senator Joyal was quick to point out, on a question of privilege, that he was not a member of the Senate when we debated the resolution on the distinct society, in 1996. However, the Honourable Serge Joyal had taken a stand long before 1996, in fact in 1986, in support of constitutional recognition of Quebec's distinct character.

During the 1980s, Senator Joyal was the chair of the Commission politique of the Quebec wing of the federal Liberal Party. In that capacity, he was interviewed in 1986 by the daily Le Devoir. I kept the article, which was entitled "Joyal: repair the wrong and fulfil the promise made by Trudeau at the referendum."

In his article, journalist Pierre O'Neill relates how Senator Joyal presided the parliamentary committee on the patriation of the Constitution in 1981-82 and says:

With the passage of time, he now recognizes that at the time the Trudeau government shocked, upset, disturbed and traumatized Quebec nationalists, and even thousands of Quebec federalists for not having been able to improve Quebec's status to reflect its fundamental concerns.

Today, it is in this context of repairing the wrongs that Mr. Joyal defines the new constitutional policy of the federal Liberal Party.

Mr. O'Neill then lists the components of that policy. The first one was:

That the preamble of the Canadian Constitution recognize the distinct character of Quebec and the linguistic duality of the Canadian federation.


Honourable senators, it seems to me that the preamble of Bill S- 4 recognizes the unique character of Quebec and bijuralism.


It is perfectly in accord with the position that my honourable friend took as head of the Commission politique in 1986. In this debate, honourable senators, the finest semantic distinctions have been dressed up and sent into battle to masquerade as substantive arguments. The Oxford English Dictionary, for goodness sake, has been invoked, and Petit Robert. For what? It is for a discussion about the meaning of the word "society" or "société." We find the following peculiar exchange at the Constitutional and Legal Affairs Committee meeting on March 14, 2001, involving Senator Joyal, Senator Cools and the Minister of Justice:

Senator Joyal: It is the word "society," Madam Minister.

Senator Cools: The problem is the word "society," Madam Minister.

Ms McLellan: Well, "society" is a neutral word, is it not?

Senator Joyal: No, it is not.


Honourable senators, during that same meeting, Senator Joyal himself defined what he means when he says that expressions such as distinct society:

...give rise to two other concepts, namely those of "people" and "right to self-determination," because if we distinguish them we form a different people and if we form a different people, it is entitled to a different state.


Honourable senators, how does that follow? How does it follow that the concept of a distinct society within Canada or, for that matter, the unique character of Quebec society, leads necessarily to the concept of "peuple, nation autodétermination puis séparation"? This is nonsense. It exists only in the mind of the honourable senator and his friends.

In any case, the idea of a constitutional recognition of the distinct society of Quebec is something that the federalists in Quebec have always wanted, simple recognition in the Constitution.

Mr. Trudeau's name keeps coming up. I suppose, if the devil can quote scripture, Senator Nolin and I can quote Mr. Trudeau. Indeed, Mr. Trudeau was never confused about the distinction between these terms: "société, peuple, nation."


I have before me the minutes of a very relevant exchange between Prime Minister Trudeau and the Premier of Quebec, René Lévesque, at a federal-provincial first ministers conference on the Constitution, in September 1980. René Lévesque had proposed a preamble to the Constitution, the fourth paragraph of which read as follows:

Recognize the distinct character of the Quebec people who, with their francophone majority, form one of the cornerstones of the Canadian Constitution.

To which Prime Minister Trudeau replied, and I read from the minutes:

THE CHAIRMAN: Just two words in reply. A conciliatory gesture. Your text, brilliant though it be —

That was Mr. Trudeau's way of complimenting Mr. Lévesque:

— is not bad. In your fourth paragraph, if you were to remove the word "people" and replace it with the word "society," I would probably find that acceptable; or, if you are bent on keeping the word "people," allow us in turn to speak about the Canadian people and we could talk about the Canadian people, the Quebec people, and the Acadian people.

So, that is an initial compromise —


I make the point simply to reinforce that Mr. Trudeau was not confused, it seems, about the distinction and made the distinction between these terms "société, peuple, nation" and so on. However, Senator Joyal reminds me of the late Lyndon B. Johnson's domino theory, that unless he kept the army in South Vietnam, all of southeast Asia would fall, one after the other. So it is with Senator Joyal. If you dare mention the word "société" about Quebec, why that leads to "peuple," it leads to "nation," it leads to "autodétermination," it leads to "séparation." It does not make sense, honourable senators.

I had intended to sprinkle my speech with quotes from Senator Carstairs about the distinct society, from her days as Liberal leader in Manitoba. I have her book. Her book is entitled Not One of the Boys. My copy is very well thumbed and very well marked. I lent it to Senator Fraser, who did not wish to put out the money to buy a copy of her own. Unfortunately, Senator Fraser has not returned my copy in time for this debate.

Senator Joyal has said that the phrase "unique character of Quebec society" is a socio-political concept. I say, with respect, so what? We have put such phrases in preambles before. That it is still the subject of debate in the country, yes, it is. Since when has that stopped Parliament from declaring itself, whether it be on the Official Languages Act or whatever?


On April 3, Senator Joyal said, and I quote:

...the concept ... excludes, by its very definition, the groups that make up Quebec's society or identity as we understand it.


How can a simple reference that the civil law tradition is a component of the unique character of Quebec possibly be invested with some ethnic significance? How can it possibly be pretended that it carries with it some connotation of ethnic exclusivity? It does not. This is fear-mongering, honourable senators. Honourable senators, I say that the debate on this matter has been unnecessary. I say that the amendments we are concerned with from Senator Joyal and Senator Grafstein are unnecessary.


Honourable senators, I say, particularly to the senators opposite, that we must not have any illusions about what is at stake in this debate. Now that they have dragged us into this debate through these amendments, they are asking you to do what you have never done, even in the dark days of the debate on the Meech Lake Accord. They are asking you to formally reject the concept of the distinct character of Quebec.


What a gift for Bernard Landry. Do not do it. Do not do it. Now that they have forced the issue upon you unnecessarily, stand and proclaim that your Canada includes the province of Quebec with its unique character.

Hon. Serge Joyal: Honourable senators, I should like to submit to my honourable colleague a certain number of proposals.


The Hon. the Speaker: Honourable senators, I must be clear before we proceed. There is approximately one minute left in Senator Murray's time for a question, if that is what you wish. I am not sure from the list of speakers whether the honourable senator is entitled to speak again.

On the list of speakers I have Senator Cools, followed by Senator Bolduc, Senator Grafstein, Senator Beaudoin and Senator Andreychuk. I will take additional names from those wishing to speak. However, I need to know whether an honourable senator is asking a question or speaking.

The minute remains if Senator Joyal wishes to use it for a question.

Senator Joyal: Perhaps His Honour would add my name to the end of the list, and I will speak then. Yesterday my name was mentioned 17 times by the Honourable Senator Nolin. During his intervention, Senator Nolin mentioned the name of Senator Grafstein 21 times. My honourable colleague Senator Murray has mentioned my name 27 times today.

In all fairness, due to the frequency of my name in the record of the Senate, I should like to offer a minimum of explanation to the allegation that the senator has been proposing today. However, I do not want to pre-empt the rights of my honourable colleagues who are on the list because some of them have not spoken.

I enjoyed the leniency of the chamber when I made my major intervention. If His Honour would add my name to the end of the list, I should like to have more than one minute to answer what has been said by the previous speakers, in all fairness.

Hon. Anne C. Cools: Honourable senators, I rise to speak today on 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. In particular, I wish to support the amendments to and/or the deletion of the preamble to this bill. I agree with Senator Jerahmiel Grafstein and Senator Serge Joyal in their concerns about the legal impact of the preamble and its words "the unique character of Québec society."

I listened carefully to Senator Lowell Murray. I understand that Senator Murray's position arises from the fact that he was once the minister responsible for this particular area. At that time, this was his position and that of the Conservatives. Therefore, I understand what is being said. As honourable senators will recall, Liberals had enormous problems with the concept of "distinct society."

Honourable senators, the magnitude of Bill S-4 combined with the differing conceptual frameworks of the Quebec civil law and the common law have made comprehension and study of this bill difficult. They keep saying "civil law." They should be saying "roman law." Further, when Minister of Justice Anne McLellan appeared before the Standing Senate Committee on Legal and Constitutional Affairs on March 14, 2001, she informed us that Bill S-4 was the first of several bills that will harmonize federal law with the Quebec Civil Code. She gave no indication of the contents of those future bills or the effect of those future bills on this first one. The minister has asked honourable senators to take her and the government on faith and to pass this bill without knowing what the future bills will contain, that is, to pass the first of several bills with no knowledge or insufficient knowledge of the bills following.

Honourable senators, Bill S-4 is an omnibus bill that will amend 49 federal statutes. Its preamble is most unusual, all the more so since it is an omnibus bill. That unusualness lies in the fact that this preamble appears to cloak this omnibus bill in an air or a sense of constitutionality. Being well acquainted with the parliamentary experiences around the collapse and defeat of the Meech Lake Accord on June 22, 1990 and the Charlottetown Agreement on October 26, 1992, and also the social and political divisions and the conflicts so engendered, I submit that this preamble is ill-conceived, unwise and ill-placed, if not misplaced, in this bill.

Honourable senators, during our Senate committee's study of Bill S-4, some senators expressed enormous difficulty with the preamble's substance, form and legal intention. One portion that was especially troubling is the preamble's second paragraph. It reads:

WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Quebec, reflects the unique character of Quebec society;

The words "the unique character of Quebec society" caused some Liberal senators much anxiety, in particular Senators Joyal, Grafstein, and myself. The government told us that the words of the preamble were based on both the Calgary Agreement of September 14, 1997 and the parliamentary "distinct society" resolution of 1995. The "distinct society" resolution of 1995 was introduced in the Senate by then government leader, Senator Fairbairn on December 7, 1995. It read in part:

Whereas the people of Quebec have expressed the desire for recognition of Quebec's distinct society;

I have the quotation in my speech. I shall not bother to repeat the entire thing. It has been read many times.

The Senate adopted this resolution on December 14, 1995 without a recorded vote. That absence of a recorded vote is a significant fact. For myself, I left the chamber during the vote. I also wish to state here again for the record that I did not speak in that debate. The reason was that I did not support it. I did not then and I do not now support the concept of the "distinct society" as an independent, legal concept capable of collecting new distinct meanings. In response to those who claim that resolution as the guiding purpose, I must remind them that this resolution is of no force or effect. Such a parliamentary resolution is of effect only during the life of that Parliament and has no force and effect after its dissolution. Consequently, it is of no effect in our deliberations on this bill.

Honourable senators, Senator Pierre Nolin's speech of yesterday took issue with my assertion of a well-established fact of Parliament and the life span of parliamentary orders and resolutions, particularly the life span of the force of this distinct society resolution of 1995. Simultaneously, Senator Nolin raised the issue of Prime Minister Jean Chrétien's recent reliance on the 1919 Nickle Resolution to veto Conrad Black's proposed appointment to the House of Lords in the United Kingdom. Senators will recall that I spoke to my inquiry on Mr. Black here in the Senate on November 4, 1999. I shall respond to Senator Nolin by citing some authorities. The first authority is our learned former colleague Senator John Stewart in his 1977 book The Canadian House of Commons Procedure and Reform. I would submit, honourable senators, that Senator Stewart knew something about Parliament. John Stewart wrote:

The fact that the House is an active body only during a session is also of great importance in the conduct of parliamentary business. On the one hand it means that a new beginning must be made in each session: no bills and no motions carry over.

I repeat: "no bills and no motions carry over." Bills and motions must become acts of Parliament to acquire permanence, the kind of permanence of which Senator Nolin is speaking. I would have thought that the mere fact that these sentences have made their way into a statute, though only in a preamble, would indicate that permanence is being sought and that the previous resolution had been unsatisfactory, insufficient and incomplete.

The second authority is former Conservative Prime Minister Robert B. Bennett. For Senator Nolin's sake, I shall cite Prime Minister Bennett, first as a Conservative, and second, because Prime Minister Bennett's words are about the Nickle Resolution and its expiration on dissolution. I thought I would please Senator Nolin doubly. Remember that the Nickle Resolution was passed in 1919. Prime Minister Bennett was speaking in 1934. Speaking about the Nickle Resolution and the life of resolutions, on January 30, 1934, Prime Minister Bennett said:

It has been a matter of passing comment, as pointed out by an eminent lawyer not long ago, that a resolution of a House of Commons which has long since ceased to be, could not bind future parliaments and future Houses of Commons.

He continued:

The power of a mere resolution by this house, if acceded to, would create such a condition that no principle which secures life or liberty would be safe. That is what Judge Coleridge pointed out.


Honourable senators, we must understand the kind and quality of permanence of which Senator Nolin speaks. A resolution would have to be agreed to threefold because the actions of a chamber usually take the form of a motion; they are either orders or resolutions. Every bill entails so many motions and resolutions, but to have permanence a resolution must be agreed to by this house, the House of Commons and Her Majesty; that is, an act of Parliament. They are all resolutions.

Senator Nolin: You are wrong.

Senator Cools: Simply to assert that I am wrong is insufficient. You must prove it. I invite all senators to check my references.

In addition, the previous year, on May 17, 1933, Prime Minister Bennett had also stated clearly that the Nickle Resolution was of no force, saying: being the considered view of His Majesty's government in Canada that the motion, with respect to honours, adopted on the 22nd day of May, 1919, by a majority vote of the members of the Commons House only of the thirteenth parliament (which was dissolved on the 4th day of October, 1921) is not binding upon His Majesty or His Majesty's government in Canada or the seventeenth parliament of Canada.

On January 30, 1934, in speaking about his responsibility as Prime Minister to advise the King and about his reviving the King's honours, Prime Minister Bennett said:

The action is that of the Prime Minister; he must assume the responsibility, and the responsibility too for advising the crown that the resolution passed by the House of Commons was without validity, force or effect with respect to the sovereign's prerogative. That seems to me to be reasonably clear.

Honourable senators, it is odd and provocative that the government should draft into a statute, even in a preamble, resolutions that have no legal or parliamentary force, particularly when those resolutions are divisive to the nation and the government's own supporters. I ask the Senate to ponder the necessity and wisdom of this preamble, particularly the words "unique character of Quebec society."

Honourable senators, I shall now examine the definition, use and legal purpose of preambles in bills. The renowned legal text Jowitt's Dictionary of English Law defines a preamble, stating:

The preamble of an Act of Parliament is that part which contains the recitals showing the necessity for it. It, unlike the marginal notes (q.v.), is part of the statute and may be used in order to ascertain the meaning, ...but only when the preamble is clear and definite in comparison with obscure and indefinite enacting words...

Every lawyer is this chamber understands what "indefinite enacting words" means.

Jowitt's definition continues:

The preamble serves to portray the interests of its framers, and the mischiefs to be remedied, and is a good means to find out the meaning of the statute.

Further, this provocative legislative drafting action of placing the words "unique character of Quebec society" in this bill's preamble has the effect of submitting these words to our courts for judicial interpretation and judicial elaboration. Some argue that the phrase "unique character of Quebec society" has no meaning in law or that it only reflects and recites the experiential history of Quebec. I submit that these words do have a meaning and that the meaning is legally flexible and will result in many and huge problems. It is wiser in law to enact no preamble at all than to enact a legally, politically and judicially malleable, nay mercurial, preamble.

Honourable senators, I have always opposed and will continue to oppose the legal use of the term "distinct society" — not the concept of people conducting their lives as they see fit, but the use in law of the term "distinct society" — or any equivalent term intended to have the same legal and constitutional consequence and effect. Liberal senators here know the enormous difficulty that the term "distinct society" has caused us. Liberal senators will know the pivotal role that our former Liberal Prime Minister, the late Pierre Elliott Trudeau, played in this country on this question. Mr. Trudeau opposed it to the day he passed away. He was right then and is still right now.

I wish to place on the record one relatively recent newspaper account of Mr. Trudeau's perpetual and abiding opposition to the legal use of the term in legal and constitutional drafting. I speak of the January 10, 1997, Calgary Herald article headlined "Trudeau says distinct society status flawed." It reported:

Former Prime Minister Pierre Trudeau has sharply criticized both federal and provincial Liberals for endorsing "distinct society" status for Quebec.

In an interview with the editors of Cité Libre, Trudeau said federalists are wrong to suggest that the "distinct society" status for Quebec would help to protect French-Canadians in Canada.

"I think that they're not aiming for the equality of francophones and anglophones, but rather for the superiority of one language over another in one province," Trudeau said.

What's more, they're "looking to obtain privileges that others don't have. They want to increase, in a fashion I would call politically pernicious, a democratic and parliamentary disequilibrium."

Prime Minister Jean Chrétien and federal Liberals have endorsed the idea that Canada's 1982 Constitution should be rewritten to declare Quebec a "distinct society."

The Hon. the Speaker: Honourable senator, with apologies, your time has expired.


Hon. Roch Bolduc: Honourable senators, I will be very brief, since it seems to me that everything there is to say has been said about this bill. My only comment will be to contrast two attitudes I find hard to accept, because they reflect values that are probably common but misinterpreted.

The first is the attitude of the Premier of Quebec, Mr. Landry, who constantly refers to Quebec as a nation. We hear that every day. I feel it is ambiguous. While hesitant to do any anthropological dance of the seven veils here, I do recall that in my youth the concept of nation for us meant an ethnic group, namely the French Canadians of Quebec, people like myself whose ancestors had come here a very long time before. In my case, 353 years before. In the village of my birth, this group included 100 per cent of the population.

In Quebec there are some six million such people, but there are another one million or more as well. These include, of course, the Aboriginal people from the various first nations, along with those whose ancestors were English — a very sizeable group — Irish and Scottish, and all the others from just about every country in Europe. These include the Germans, the Greeks, the Italians, the Spanish, and then there are the more recently arrived groups from the Maghreb, the Middle East, Latin America, the Caribbean and Asia.

As a result, with my traditional understanding of the concept of a nation, a nation as I understood it to mean when I was a school child, I have trouble speaking of the nation of Quebec. For me, that is not a reality. It is a complex matter and does not translate what I learned as a child.

On the other hand, if Mr. Landry, like Minister Dion by the way, is referring to the sociological meaning of the nation as state, or what Mr. Bouchard meant when he used the word "people," that is another matter. I believe, however, that the majority of the French Canadians of Quebec — and this is important — consider the nation to which Mr. Landry refers as their own ethnic group. This is, moreover, why other Quebecers cannot accept it, and rightly so! I am convinced that Senator Lynch-Staunton, who is very much attuned to these questions and who knows and understands Quebec very well, will corroborate this. I am trying to give you a picture of the "heart of French Canada."


The other attitude is that of Senators Joyal and Grafstein, who claim to draw on Mr. Trudeau, whose thinking I admit I cannot understand. This attitude involves denying the existence of the specific character of Quebec, with its population of six million French Canadians, who have lived there for a long time and still hope to obtain this constitutional recognition and who want to protect their future with 300 million anglophones surrounding them.

Here, that is not the issue. In the guise of cold legal logic, it seems to me to reveal an excessively rigid attitude that should not prevail in the Senate. There is no need for such thin skins. There is no call to be "more Catholic than the Pope," as we say at home.

The Supreme Court and Parliament have spoken on this matter. I know well that we are equal, we all hold to this value of equality. There is no debate on this point, and we all agree. As Senators Beaudoin, Nolin and Murray have demonstrated, accepting the second paragraph of the bill's preamble does not require sacrificing the principle.

There are two attitudes here. On the one hand, there is the Quebec stubbornness expressed by Mr. Landry, who talks of the "Quebec nation." Basically, this expression is ambiguous and means nothing. On the other hand, there is a sort of block. In the case of Senator Joyal, I think it is strictly for reasons of cold legal logic. In the case of Senator Grafstein, it is more the typical reaction of a certain English Canadian milieu, which I understand very well. These two attitudes are, in my opinion, a little too rigid. That is the essence of my remarks.

I thank particularly Senators Carstairs and Milne for their courage in this matter and of course Senators Murray and Kinsella, whose political sensitivity I have long known.


Hon. Jerahmiel S. Grafstein: Honourable senators, all the witnesses agreed that the legislation before us, Bill S-4, can stand on its own without any preamble. That is unquestioned. All agreed, or some agreed, that the preamble is not necessary. Where there is substantive disagreement is with regard to the weight and the interpretive power of the preamble. Are the words divisive? Are they confusing? Are they misleading? Are they clear?

Senator Murray's most interesting speech confirms the explosive nature of these words, whether he agrees or not with those of us who take a different interpretation from those words. The words themselves tend, as his speech indicates, to be explosive.

Let us try to be legalistic. This, after all, is a law. Let us turn, if we could, to the Interpretation Act, section 13, which is pretty clear. It states that:

The preamble shall be read as part of the enactment intended to assist and explain the purport and the object.

Therefore, the preamble is not a simple statement.

Senator Nolin made reference to a very distinguished legal witness. I refer to page 667 of the Debates of the Senate, where Senator Nolin quotes the witness:

We also have to know that the preamble of a law has no normative scope and grants no new individual or collective rights. In a way, it is a simple statement.

That statement, honourable senators, simply is not correct in law. Again, section 13 of the Interpretation Act reads, and I repeat "reads":

The preamble of an enactment shall be read as part of the enactment intended to assist and explain its purport and object.

The disagreement lies in what weight or what meaning we should give to the words of the preamble. I say this again despite all the admonitions from speakers who support this legislation unamended. If senators have a reasonable doubt as to the meaning of words, those words should be deleted. Let us start again with the preamble, honourable senators, which I believe is replete with doubts and which will, if we allow it to go forward, be incorporated into the legislation. All agree it is unnecessary because the enactment itself can stand on its own. Therefore, I will not today — because do I not have the time and I will not take the time of the Senate — make a seriatum response to Senator Nolin because I disagree with almost every one of his conclusions. Time does not allow me to make a detailed legal response to each of his conclusions. Let me, however, touch on one or two matters.

The first recital, at the very outset, refers to "all Canadians." As I have indicated, this is unclear. Senator Kinsella also had some doubts about this. The word "Canadian" has been interpreted by the Supreme Court of Canada in the Singh case. That case made it clear that there is a marked differentiation, for instance, between a "Canadian citizen," a "Canadian resident" and "everyone." The heart of our Charter applies in part to "everyone." Therefore, to start a legal bill with "all Canadians," using a dictionary meaning rather than a legal meaning — and there is a difference between the two — to my mind is inappropriate for a legal bill. If there is a doubt that "all Canadians" excludes "anyone," a "person," a "landed immigrant," a "refugee," a non-Canadian who is in Canada, it should not be in this legislation if the law itself is meant to apply to "everyone" within the boundaries of the province of Quebec, as I believe it does. Therefore, if there is a doubt, I suggest that at the very outset this serious doubt should be removed.

The second recital requires a more detailed response. In effect, this recital states that the Civil Code of Quebec reflects the unique character of Quebec society. We heard a very eloquent statement yesterday from Senator Watt. To Senator Watt, a very distinguished leader in his community, the Aboriginal community in the north of Quebec, these words "distinct society," let alone "unique society," are unclear. Is he included? Is he excluded? It is unclear. If in fact the Aboriginal community in and for the province of Quebec has a serious doubt, why should we not share that doubt and remove words that have no impact on the legislation itself? Why not?

Senators may recall — and I am not a civilian lawyer — that Senator Bolduc made reference to the Anglo-Saxon tradition. I was brought up in the common-law tradition, but I have had pause to reflect on the long, tangled and complex history of the origins of the civil law in the province of Quebec. First, there was the seigneury law, then the Coûtume de Paris, then the common law, the common law in French, the common law in English. At the time, there were only three juridical districts, in Quebec, Montreal, Trois-Rivières and Quebec City. The law did not extend to all of the regions now included in the province of Quebec until 1898, and then finally in 1911. Even to this day, there remain questions as to the impact of law in the former Rupert's Land respecting the Aboriginal community in northern Quebec.

There are questions about this issue to this day, and the questions with respect to the seigneury law still exist. By the way, much of this was part of the evidence as well.

There was a common-law influence on the Civil Code and there was a Civil Code influence on the common law. That is unquestioned.

I recall that I had somewhere read the word "unique" as it relates to the Canadian tradition.


I did find the word "unique" in an interesting small series of lectures given by the late Justice Bora Laskin and compiled in The British Tradition in Canadian Law in 1969. In this book, which I commend to all senators, is a very interesting and detailed discussion of the differences of the law within the province of Quebec, but then he turns to the word "unique." I will quote from this book very briefly. He was referring to the court system because what is unique about our judicial system is that federal judges are appointed by a federal authority. He stated at page 111:

There are two features of the judicial provisions of the Canadian Constitution which have uniqueness. First... courts are to be federally appointed...

Further on, he says that the second "uniquity" is the conferring of power upon the Parliament of Canada to establish courts for the better administration of laws in Canada. The phrase "laws in Canada" has been interpreted to mean federal law only, but not to include laws in force in Canada through provincial enactment. He goes on to say there is no reason in principle why it should not also include common-law or civil-law principles which were in force at Confederation and which afterwards could only be dealt with by federal legislation and the distribution of legislative power affected by the Constitution.

Indeed, honourable senators, the Canadian legal system is unique and unparalleled because of this unique power that Parliament, through the Constitution, has granted to appoint federal judges in every province. A federally appointed judge can deal with both provincial law and federal law. That is unique; that is undoubted.

Honourable senators, I do not wish to belabour this point, but I do wish to come back to the point that the second recital, as constituted, is unnecessary and may in fact be historically incorrect. It is hard to encapsulate in a recital the essence and rich traditions of the civil law in Quebec, which have many roots.

With respect to the "unique society" and the Senate resolution, Senator Murray referred to the resolution in this place. First, the resolution did not refer to "unique society." It referred to "distinctive society," and there is, on its face, a substantive difference. If different words count, those words certainly count.

Recently, the Prime Minister warned some of us about the dangers of such words as "sovereignty," "society" and "nation". He lamented the fact that these words were hijacked by separatists for their narrow separatist, sovereignist agenda.

Senator Bolduc made exactly the same point when he referred to the word "nation." When he talked of the different use of the word "nation" in the case of separatism, the Prime Minister warned us that we should not fall into the trap prepared by the separatists in the abuse of these words.

Honourable senators, do we do more than we intended here? Do we dare allow separatists to play these linguistic games as part of the federal legislative fabric? For those of you for whom there is a reasonable doubt, I urge you to support the amendments to delete the preamble. Let me refer back to Bill S-4 that our colleague Senator Nolin referred to us, specifically proposed section 8(1) of the interpretive amendments. How can the separatists play word games with these words? Read proposed section 8(1), of which we approve. Proposed section 8(1) is an amendment to the Interpretation Act and reads: is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

The Province of Quebec now has a separatist government. The Province of Quebec has the total power to amend the Civil Code of Quebec. If it can take this preamble and these words to justify a separatist agenda that we have passed today, then what are we doing? Why give the sovereignists and the separatists a federalist gift when it is unnecessary? It is unnecessary. If it were necessary, I would say, well, we have to think about it. We know as a question of law, as a question of fact, as a question of practice that the preamble in this specific legislation is unnecessary. Are we not making a grand statement by just reading the explicatory words that say we are in effect joining together in equality the common-law code and the civil-law code as they apply to the federal law in and for the province of Quebec? Is that not a magnificent, powerful statement of Canadian unity? What is wrong with equality? What more do we need? Why give the sovereignists a free lunch? They will not give us anything for free. The preamble is an open invitation to future mischief.

Honourable senators, if you have a reasonable doubt, I urge you to delete these words. Follow the lament of the Prime Minister who warned us, who says that the separatists hijacked these words so that we could not use such words in normal, careful usage.

Senator Cools: Delete the words.

Senator Grafstein: I urge you, honourable senators, to support these amendments. Make clear that which is unclear and dangerous.


Hon. Gérald-A. Beaudoin: Honourable senators, on Tuesday, April 3, I rose to address Bill S-4. No one is opposed to the substance of this bill. Senator Grafstein suggested removing the preamble and he presented an amendment to that effect.

In my speech of April 5, I said that this would be a mistake and that we should keep the preamble. I will not revisit this issue. I should like to say a word on the amendment proposed by Senator Joyal, since I did not have an opportunity to comment on it. I have the utmost respect for his speech. He presented an amendment to the second "whereas." His speech was well researched and instructive. I congratulate him.

However, I want to say that it is preferable to keep the second whereas in its present form. I will not repeat my speeches of April 3 and 5, because it would take much too long.


As I explained in my speech of April 5, Bill S-4 is not a constitutional amendment but rather a bill of the greatest importance. The second "whereas" is based on history. It started in 1774 with the Quebec Act. That is a long time ago. History is important, and it is time to show it clearly in this house. Prime Minister Lord North introduced the Quebec Act at the Parliament of Westminster, and the bill was adopted in 1774. It reintroduced French civil-law legislation of the time in a British colony. This act, obviously, conferred a unique character to Lower Canada. In 1866, a civil code came into force in Lower Canada. The code is bilingual, and a new code in 1994 was adopted in Quebec and is bilingual.

The words in the preamble as it is, and this is where I disagree with those who have proposed an amendment, are used by many federalists and were inspired by history. Both Houses of the Parliament of Canada used similar expressions in a motion a few weeks after the referendum of 1995. For all these reasons referred to at length in my two long speeches, I suggest that we adopt Bill S-4 as it is.

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I am almost sorry that Senator Murray did not quote me so I could quote things back. I will refrain from that this afternoon. I want honourable senators to know why I will be supporting the motion in amendment by the Honourable Senator Moore. I think we all got caught up with this other debate.


The amendment by Senator Moore essentially does the following: It changes the wording, gives Canadians a window on the world and gives Canadians enhanced opportunities worldwide.

His wording, I would suggest, is a little more clear, perhaps less poetic than the original wording, and I wanted to put on the record that, though it is not a significant amendment, I will be supporting it.

Hon. A. Raynell Andreychuk: Honourable senators, as a member of the Standing Senate Committee on Legal and Constitutional Affairs, I hesitated on whether to speak on this bill, but I felt I had to put on the record my disappointment in this process. We are losing sight of the importance of this bill. We have been attempting to better our law system with a harmonization bill for quite some time. Some very eminent scholars and lawyers have worked very diligently to put this bill together. When those experts came before the committee, it was probably the only time during my short tenure on the Standing Senate Committee on Legal and Constitutional Affairs that Senator Beaudoin, Senator Joyal, Senator Grafstein and Senator Moore — all lawyers — were hard-pressed to find questions to put to the witnesses.

While we did ask for explanatory comments, we were impressed from the start that this was not an exercise taken quickly. It was not an exercise hijacked by any group or ideology. It was a concerted effort of all the lawyers to harmonize the law in Canada.

The purpose of this bill, as has been stated, is the betterment of the law, as well as an example in global trade. The rest of the world may use Islamic law or the main civil or common-law systems. This harmonization bill could have profound effects in global trade and in other parts of the world. Canada would be at the forefront in this area.

It was with some pride that I listened to the scholars from the department and from the various faculties of law across Canada talk about how they put this bill together.

I am concerned that the same care that was taken in the bill was not taken in the preamble. For the life of me, I cannot believe that those who drafted the bill were also the same scholars who drafted the preamble. Surely the Government of Canada is responsible to ensure that a proper public policy debate is held on fundamental and important issues. Yet, recently, the government has taken to putting into preambles issues of extreme public policy knowing that they could and, in fact, do inflame various sectors of Canadian society. Instead of having an open, forthright debate on those issues, the issues are tucked into a preamble.

I am mindful that I spoke on Bill C-23, an act to modernize the Statutes of Canada in relation to benefits and obligations. That bill did speak to those issues but, at the eleventh hour, the minister put into the preamble a definition of marriage, knowing full well that the people of Canada are not united on that issue and that it demands a very serious public policy debate.

Again a phrase was placed in Bill S-4 that anyone should have known would have caused some consternation. Legitimately or otherwise, this phrase has caused differences of opinion in Canada.

The Government of Canada has a responsibility to bring people together to have a thoughtful debate, not a divisive debate. Look how quickly we have moved to a divisive debate. My words mean what I intend them to mean, nothing more, nothing less. Someday we will know what weight these words will carry for this legislation, for this issue of constitutionality and for us as citizens.

It pains me that the government does not learn from its lessons and continues to put fundamental debates into preamble. It is unnecessary and it is absolutely wrong in good governance.

Consequently, Senator Grafstein's amendment to delete the preamble makes sense to me because the preamble diminishes the quality of the rest of the bill. The amendment would send a signal back to the government. Our warnings on Bill C-23 went unheeded. We told them not to infiltrate into law via preamble important issues which should be debated by Canadians, while telling us that it means nothing or that it will only be interpreted narrowly.

In the Standing Senate Committee on Legal and Constitutional Affairs, we began by discussing the bill and everyone came prepared to do that, but the preamble quickly became the focus. We were told the preamble was simply complimentary, that it should not in any way attract a deeper debate. What happened? The debate very quickly degenerated to discussing only the preamble. What should have been simply an expression, an instruction, in a preamble, became an emotional issue which has existed in this country year in and year out. The debate will continue to go on, but it should never be slipped into a bill on such an important issue as harmonization.

The preamble detracts from and does a disservice to the value of the bill. I hope that the Government of Canada will rethink its strategy in utilizing preambles inappropriately. The government should measure its words in preambles in the same way that the courts measure words inside the bill.

The Hon. the Speaker: Senator Prud'homme, you are rising. I have a list which I read out earlier. My next speaker is Senator Joyal. Are you asking a question, however?

Hon. Marcel Prud'homme: No, I was not here when the list was read out.

The Hon. the Speaker: I will put you on the list.

Senator Prud'homme: Put me on the list. I will put as strongly as I can in one minute why I will vote for this bill, hoping that Senator Joyal will leave us some time.

Senator Joyal: Honourable senators, since the honourable senator has mentioned that he will speak for a short, brief period and since he has not spoken, I certainly would like to defer to him. I ask that he allow me the same courtesy — some time, to answer some of the attacks of which I have been the object.


Senator Prud'homme: Honourable senators, at some point we will have to define what Canada is. Senator Denis, who was a minister and a member of Parliament, and who sat in Parliament for 54 years, used to say: "Some things are obvious."

Clause 2, which gets some senators all worked up, fits this description! Who am I here? I am a Canadian like everyone else, but I am very pleased to say that I have my own reality. The word "distinct" does not and should not mean in the minds of some "a scarecrow to chase people away." It should be a positive concept that could be used throughout the world to say: "We in Canada accept differences, nuances." If there is an obvious reality, it is Quebec!



I am always and forever a defendant of my friend Senator Watt. In Quebec, we recognize that there are 11 nations. If I have time I will name them all, without notes. There are 11 First Nations with more than 65,000 people in Quebec. I bow to that. I can tell Senator Fraser, Senator Angus and others, that I recognize constitutional rights in Quebec. I accept that as a reality of what Quebec is all about.


This is what is meant by the expression "distinct society," which seems to upset people so much. It does not mean what the péquistes, separatists, sovereignists or indépendantistes would have us believe! We are federalists, but we, too, are entitled to our pride!


I say to my friend, Senator Grafstein: Try to understand the pride of others if you want people to understand your own pride.


The reality of Canada, honourable senators, is very well described in the preamble. It is no more than an affirmation of what exists.


This is the reality. That is why Canada is so different.

I will now sit down and say I will vote or I will not vote for any amendment.

The Hon. the Speaker: I wish to ensure there is some time left for Senator Joyal, because I must rise at 3:15.

Senator Joyal: Honourable senators, in the three and one half years that I have been here, I have had the privilege of sharing with you opinions and ideas on very difficult issues. I remember Bill C-40, the bill dealing with the death penalty. I remember Bill C-20, which we dealt with last year, and many others. I particularly recall Bill C-23 which, as Senator Andreychuk mentioned, was a very difficult, moral bill.

I have always tried to put forward my opinion in neutral terms so as to not personally attack any senator. I believe that maintains a level of civility which is needed in the sometimes very heated and very emotional exchanges we have. I must say to my honourable friends, and to all their researchers and speech writers, that mentioning the name of a senator too many times in a speech makes it a little ad hominem, as I was told when I was in school. If we are to continue to maintain a level of frankness in our debates, that is an essential element that we should bear in mind.

That being said, I would say to Senator Murray that the objective of recognizing in a constitutional reform that which characterizes Quebec in Canadian society is a very difficult issue. I have tried to wrestle with that for 20 years. As chairman of the policy committee of the Liberal Party, I have proposed various approaches to this to my fellow citizens in the party. The one that Senator Murray alluded to was taken from 1986. I have that text. Senator Murray was courteous enough to inform me that he would refer to it. I will read the text, because each word is important:


Whereas it is essential, in a preamble that would be added to the Constitution of Canada, to recognize, first, the commitment of Canadians to maintaining and strengthening, throughout Canada, the linguistic duality of the Canadian federation and, second, the distinct character of Quebec as a primary, but not exclusive, source of the French language and culture in Canada.

Still in the same preamble:

...the multicultural character of Canadian society and, in particular, respect for the diversity of origins, beliefs and cultures, as well as the various regional distinguishing features which make up Canadian society...


Fourth, the contribution of Canada's aboriginal people —

I think that the preamble is defective because it mentions only one element, while it should cover all of them. That is the proposal I made in 1996 to the same convention to recognize Quebec as —

The Hon. the Speaker: It being 3:15, pursuant to the order adopted by the Senate on April 24, I interrupt the proceedings for the purpose of putting all questions necessary to dispose of third reading of Bill S-4. The question is as follows: It was moved by the Honourable Senator De Bané, P.C., seconded by the Honourable Senator Poulin, that this bill be read a third time.

And on the motion in amendment of the Honourable Senator Grafstein, seconded by the Honourable Senator Joyal, P.C., that the Bill be not now read a third time but that it be amended,

(a) on page 1, by deleting the preamble; and

(b) in the English version of the enacting clause, on page 2, by replacing line 1 with the following:

"Her Majesty, by and,"

And on the motion in amendment of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Moore, that the Bill be not now read a third time but that it be amended in the preamble, on page 1, by replacing lines 5 to 7 with the following:

"Province of Quebec finds its principal expression in the Civil Code of Québec;",

And on the motion in amendment of the Honourable Senator Moore, seconded by the Honourable Senator Joyal, P.C., that the Bill be not now read a third time but that it be amended in the preamble, on page 1, by replacing lines 15 and 16 with the following:

"two major legal traditions gives Canadians enhanced opportunities worldwide and facilitates ex-".

Accordingly, in the absence of an agreement, and in accordance with our precedents, we will now proceed to put the question on the last amendment, which was moved by the Honourable Senator Moore. I will repeat the amendment by Senator Moore.

It is moved by the Honourable Senator Moore, seconded by the Honourable Senator Joyal, PC:

That the Bill be not now read a third time but that it be amended in the preamble, on page 1, by replacing lines 15 and 16 with the following:

"two major legal traditions gives Canadians enhanced opportunities worldwide and facilitates ex-".

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

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: Adopted. To be particularly clear about it, I will put the question again, as suggested.

The amendment before the chamber is the amendment moved by Senator Moore. All those in favour of the amendment please indicate their approval by saying "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker: And those opposed by saying "nay."

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it, and the amendment is approved.


Hon. Eymard G. Corbin: Your Honour, I wish to be recorded as abstaining from the vote.

Senator Prud'homme: Your Honour, I know it is not in the rules, but I wish my name be added to that of Senator Corbin's. I am in disagreement but did not ask for a vote.

You have a choice. If you say no to me, then I think I will get up and we will ask for a recorded vote. I wish to say "nay."

The Hon. the Speaker: I think I know what senators want. I put the question to honourable senators and I have had an answer. However, there is no unanimity in the approval, so it would be "on division." Certain senators wish to be recorded as abstaining from the vote, in particular Senators Corbin and Prud'homme.

Senator Prud'homme: I am not abstaining; I am objecting.

Hon. Lise Bacon: I abstain.

Hon. Shirley Maheu: I wish to be recorded as abstaining as well.

The Hon. the Speaker: Honourable senators, I have it that the vote passes on division. Several senators have risen to ask that their names be recorded as senators who abstain in the voice vote, namely, Senators Corbin, Bacon, Maheu, Ferretti Barth and Prud'homme.

Senator Prud'homme: Again, nay -

The Hon. the Speaker: It is on division. Unless we have a standing vote, I cannot record against.

Do you wish a standing vote, honourable senators?

Some Hon. Senators: No.

Senator Prud'homme: To help with the procedure, Your Honour, I think what we have said will be reported. People who read the record will know that I do not want to abstain. I want to say "against," but I do not ask for a vote as long as it is written in the minutes that I said "against."

The Hon. the Speaker: I understand, Senator Prud'homme, but if the motion passes on division, without asking and going through the process of a standing vote, I cannot indicate negative votes. I can, however, in that I have done it, give certain senators whom I have named an opportunity to indicate they are abstaining. I delete your name from that list.

Senator Cools: Add my name to the abstentions, Your Honour.

The Hon. the Speaker: Senator Cools' name will be added.

Honourable senators, I will now proceed to the question on the second amendment, which was moved by the Honourable Senator Joyal.

Senator Corbin: Honourable senators, my understanding is that the bells were to ring at 3:15 p.m.

The Hon. the Speaker: You are quite right, Senator Corbin, but only if a standing vote is requested. I put the question and found that the "yeas" had it. There were some abstentions, which the record will show. I could not accommodate Senator Prud'homme on a negative vote, so we are now proceeding to the next amendment.

Honourable senators, we will now proceed with the vote on the second amendment, which was moved by the Honourable Senator Joyal. I will repeat the amendment.

And on the motion in amendment of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Moore, that the Bill be not now read a third time but that it be amended in the preamble, on page 1, by replacing lines 5 to 7 with the following:

"Province of Quebec finds its principal expression in the Civil Code of Quebec;",

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

Some Hon. Senators: No.

The Hon. the Speaker: I want to be sure in the process I follow. Therefore, I will follow the card that deals with this type of situation where there will be a request for a standing vote.

Will all those honourable senators in favour of the motion in amendment please say "yea"?

Some Hon. Senators: Yea.

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

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "nays" have it.

And two honourable senators having risen:

The Hon. the Speaker: There are two senators standing. Under our rules, that means we will have a division. We will have a 15- minute bell, which is what was in the order, unless there is an objection.

Call in the senators. The bells will ring for 15 minutes, which means that we will vote at 3:40 p.m.


Motion in amendment of Senator Joyal negatived on the following division:



Cools, Grafstein, Joyal, Moore, Sparrow, Watt—6



Andreychuk, Angus, Austin, Bacon, Beaudoin, Bolduc, Carstairs, Chalifoux, Christensen, Cochrane, Comeau, Cook, De Bané, DeWare, Doody, Fairbairn, Finestone, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Graham, Hervieux- Payette, Hubley, Keon, Kinsella, Kroft, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Mercier, Milne, Morin, Murray, Nolin, Oliver, Pearson, Poulin, Poy, Prud'homme, Rivest, Robichaud, Roche, Rompkey, Rossiter, Sibbeston, Simard, Tkachuk—52



Corbin, Ferretti Barth, Gustafson—3

The Hon. the Speaker: Honourable senators, the next question is on the motion in amendment of the Honourable Senator Grafstein. Is it your pleasure to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

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

Some Hon. Senators: Yea.

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

Some Hon. Senators: Nay.

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

And two honourable senators having risen:

Motion in amendment of Senator Grafstein negatived on the following division:



Andreychuk, Cools, Grafstein, Gustafson, Joyal, Moore, Sparrow, Watt—8



Angus, Austin, Bacon, Beaudoin, Bolduc, Carstairs, Chalifoux, Christensen, Cochrane, Comeau, Cook, De Bané, DeWare, Doody, Fairbairn, Finestone, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Graham, Hervieux-Payette, Hubley, Keon, Kinsella, Kroft, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Mercier, Milne, Morin, Murray, Nolin, Oliver, Pearson, Poulin, Poy, Prud'homme, Rivest, Robichaud, Roche, Rompkey, Rossiter, Sibbeston, Simard—50



Corbin, Ferretti Barth, Tkachuk—3


Honourable senators, we will now move to the main motion, as amended. It was moved by the Honourable Senator De Bané, P.C., seconded by the Honourable Senator Poulin, that this bill be read the third time — and I will add the words "as amended."

Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

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

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it.

And two honourable senators having risen:

The Hon. the Speaker: I call on the Table to carry out a division.

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



Andreychuk, Angus, Austin, Bacon, Beaudoin, Bolduc, Carstairs, Chalifoux, Christensen, Cochrane, Comeau, Cook, Corbin, De Bané, DeWare, Doody, Fairbairn, Ferretti Barth, Finestone, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Graham, Hervieux-Payette, Hubley, Keon, Kinsella, Kroft, LeBreton, Losier-Cool, Lynch-Staunton, Maheu, Mahovlich, Mercier, Milne, Morin, Murray, Nolin, Oliver, Pearson, Poulin, Poy, Prud'homme, Rivest, Robichaud, Roche, Rompkey, Rossiter, Sibbeston, Simard, Tkachuk, Watt—55.






Cools, Grafstein, Gustafson, Joyal, Moore, Sparrow—6.

Sales Tax and Excise Tax Amendments Bill, 2001

Second Reading—Debate Adjourned

Hon. Bill Rompkey moved the second reading of Bill C-13, to amend the Excise Tax Act.

He said: Honourable senators, I am glad everyone is sitting down because this may be one of the most exciting speeches I have ever given.

I thank honourable senators for the opportunity to make some remarks on Bill C-13, the Sales Tax and Excise Tax Amendments Bill, 2001. From the start of its mandate, the government has been active in ensuring that we provide a tax system that is simpler and fairer not only for individual Canadians but for Canadian business as well. Bill C-13 contains measures that build on those objectives.

Before outlining the specific measures in Bill C-13, I should like to point out that this legislation is the result of successful cooperation between the government and the tax and business communities toward achieving our common aim of making our tax system simpler and fairer.

Many of the initiatives in this bill are the product of a fruitful consultation process involving both the government and industry. The main intent of Bill C-13 is to implement measures relating to the goods and services tax and the harmonized sales tax that were proposed in Budget 2000, as well as additional sales tax measures proposed in a Notice of Ways and Means motion tabled in Parliament on October 4, 2000.

These measures are aimed at improving the operation of the GST/HST in the affected areas and ensuring that the legislation accords with the policy intent. The bill also implements two amendments to the excise tax provisions of the Excise Tax Act. I will discuss these amendments in a few moments.

First, honourable senators, I want to outline the GST/HST measures in this bill that were proposed in Budget 2000. The GST/HST is designed to ensure the competitiveness of Canadian businesses and products in export markets. A number of measures proposed in Budget 2000 and contained in Bill C-13 are aimed at achieving that objective. Specifically, these measures relate to the GST/HST treatment of export distribution activities; the provision of warranty services by Canadian businesses to non- resident companies; the provision of storage and distribution services by Canadian service providers in relation to goods imported on behalf of non-residents; and sales of railway rolling stock to non-residents. Let me take a few moments to briefly summarize each of these measures.

Registrants engaged in export distribution activities involving the limited processing of goods for export face a cash flow cost that may be significant in relation to the level of value added to the goods. This can be the case where goods are imported for minor processing and subsequent export. The cash flow issue arises because tax is paid on the importation of the goods, but no offsetting tax is collected on their export. As a result, businesses must finance the tax until they receive a refund from the Canada Customs and Revenue Agency. The proposal in this bill for an export distribution centre program addresses the cash flow issue faced by low, value-added export-oriented businesses by allowing them to use an export distribution centre certificate to purchase or import inventory, or to import customers' goods on a tax-free basis. This measure will help ensure that the GST/HST does not present an impediment to the establishment of North American distribution centres in Canada.


In my introduction, I mentioned the cooperation between government and the tax and business communities. I should note that a national consultative process involving many interested parties took place on the Export Distribution Centre Program.

With respect to Canadian businesses providing a warranty repair or replacement service, Bill C-13 contains a measure that will help protect the competitive position of these Canadian businesses relative to their foreign, particularly U.S., counterparts. Currently, relief from tax on importation is granted for goods imported into Canada for warranty repair provided the goods are exported after the service is performed. However, where the imported goods are replaced rather than repaired, relief from tax on importation currently does not apply.

This bill proposes to extend the relieving rules to cover situations where a replacement good is provided under warranty and is exported in place of the original imported defective good, for example, where the original good is destroyed. This proposal would ensure that the GST/HST does not make Canadian suppliers of warranty repair or replacement service less competitive relative to foreign suppliers when these services are provided to non-residents.

Honourable senators, this bill addresses storage and distribution services on imported goods. Bill C-13 also expands on a program known as the Exporters of Processing Services Program. This program allows the tax-free importation of goods by a Canadian processor for the purpose of processing the goods in Canada and subsequent export. It ensures that the GST/HST does not impose prohibitive cash flow costs on Canadian service providers by their having to pay tax on their customers' goods at the time of importation.

However, the Exporters of Processing Services Program does not apply where a Canadian processor only provides storage or distribution services. This bill proposes to expand the program to allow access to businesses that provide only storage or distribution services for non-residents.

Another proposal related to cross-border transactions contained in this bill concerns sales of goods delivered in Canada to non-residents who intend to export the goods. Special rules under the GST/HST system allow an unregistered non-resident person to acquire goods and most services in respect of goods, in Canada, without paying GST/HST where the goods are bound for export and remain in the possession of registered Canadian service providers before being exported. Bill C-13 contains amendments to ensure that this objective is met specifically.

An amendment is proposed relating to the sale of railway rolling stock to non-resident businesses. The current rules do not permit the sale of rolling stock to be tax-free if there is to be any use in Canada of the rolling stock prior to its export. This restriction does not reflect current industry practices. Rolling stock is rarely shipped empty to the U.S. destination. This bill proposes an amendment to ensure that the use of railway rolling stock to ship goods out of the country in the course of the exportation of the rolling stock itself will not disqualify it from tax-free treatment.

Honourable senators, once again, I should like to mention that the consultative process was used here to good effect.

I would now turn to an important sales tax initiative that was proposed in the budget for 2000 for the rental housing sector, which is likewise contained in this bill. Bill C-13 contains a measure of significant benefit to builders and purchasers of new residential rental accommodation. Under the existing sales tax system, tax applies to new residential rental property when the property is acquired by a landlord from the builder or on a self- assessed basis when the builder is the landlord. For purchaser- landlords, the tax becomes payable upon purchase of the residential complex. For builder-landlords the tax becomes payable as soon as the first unit in the residential complex is rented. As a result, both purchaser-landlords and builder- landlords finance the tax liability up front and recover the tax over time.

This bill implements the new residential rental property rebate which is a partial rebate of GST paid in respect of newly constructed, substantially renovated or converted, long-term residential rental accommodation. The rebate is payable to the builder-landlord or purchaser-landlord who paid the tax. Effectively, the new rebate will reduce the effective tax rate on newly constructed rental property by 2.5 percentage points, which is the same federal tax rate reduction that applies to purchases of new owner occupied homes under the existing new housing rebate program.

I will point out other sales tax measures. I mentioned earlier that in addition to the measures proposed in the 2000 budget, Bill C-13 contains other sales tax measures designed to improve the operation of the GST/HST. Three of these measures are also in the area of real property.

First, this bill proposes a refinement to the existing new housing rebate program that reduces the cost to consumers of building or purchasing a new home. Refinements are proposed to allow new homes to qualify where they are used primarily as a place of residence, as well as to provide short term accommodation to the public in certain circumstances, as is the case with many bed and breakfast establishments.

Second, Bill C-13 would address a problem that arises when a consumer who has purchased real property from the vendor and has paid GST or HST subsequently returns the property to the original vendor without having used it. Currently, there is no mechanism by which the consumer can recover the tax paid on the initial purchase. The proposed amendment in Bill C-13 would allow a consumer in this circumstance to recover the tax paid on the purchase of the property if it is returned to the original vendor within one year and pursuant to the original contract. This would place a consumer returning real property in a similar position to a person who returns new goods to a vendor and receives a credit or refund for the GST or HST.

The third real property measure contained in this bill relates to the sale of land by individuals. Senators may know that sales of real property by individuals or personal trusts are generally exempt from GST/HST provided the individual or trust has not used the property in a taxable business. This bill proposes to ensure that a sale of real property cannot be treated as exempt from sales tax if the seller was previously leasing it to other persons on a taxable basis.

Honourable senators, this bill has provisions regarding health and education. As honourable senators will recall, last year's budget contained proposals that reflect the government's commitment to continue to work towards improving the quality of life for Canadians. Bill C-13 builds on the spirit of that commitment — a commitment to provide access to quality health care and education.

In the area of health care, this bill proposes an amendment to continue in force an existing GST/HST exemption for speech therapy services that are billed by individual practitioners and that are not covered by the applicable provincial health care plan.

With respect to education, Bill C-13 contains a measure that will extend the sales tax exemption for vocational training to more situations, including cases where the training is supplied by a government department or agency rather than a vocational school. Specifically, the amendment will do away with existing conditions on the exemption that requires that the training or resulting certifications be subject to certain government regulations or that the school be run on a non-profit basis. The proposed change will ensure that vocational training provided in different provinces receives the same GST/HST treatment regardless of the regulatory regime that exists in each province with respect to vocational schools. A further amendment would add the flexibility for providers of vocational training to elect to treat their services as taxable where their clients are commercial businesses that would prefer to pay the tax and recover it by way of input tax credits.

Honourable senators, in recognition of the important role played by charities in helping Canadians and enriching our communities, Bill C-13 proposes amendments to ensure that GST/HST legislation properly reflects the government's intended policy of generally exempting from sales tax the registry of real property related good by charities.


The bill also touches on excise tax on automobile air conditioners and heavy automobiles. As I stated at the outset, Bill C-13 also contains amendments relating to the non-GST/HST parts of the Excise Tax Act that deal with excise taxes on specific products.

The first amendment clarifies provisions relating to the deferral of excise taxes on automobile air conditioners installed in new automobiles and on heavy automobiles at the time of importation by, or sale to, a licensed manufacturer.

As honourable senators may be aware, the excise taxes on automobile air conditioners and heavy automobiles have been imposed since the mid-1970s. Since 1984, these taxes have been payable by the manufacturer at the time of delivery to an automobile dealer. Payment of the tax is effectively deferred at the time of importation and on intermediate transactions between licensees until the sale to an automobile dealer in Canada.

Several manufacturers have recently challenged the longstanding interpretation and application of these provisions with respect to automobile air conditioners installed in imported new motor vehicles, and they are seeking substantial refunds of tax. They argue that the relief provided on importations by licensed manufacturers does not simply defer payments of the tax, but permanently exempts these goods from tax. This is clearly contrary to the well-understood policy intent and longstanding interpretation and administration of these legislative provisions.

Bill C-13, therefore, proposes clarifying amendments to ensure that there can be no misinterpretation of these provisions with respect to importations as well as intermediate transactions.

The retroactive application of these amendments is consistent with the criteria that were laid out by the government in 1995 in the response to the seventh report of the Standing Senate Committee on Public Accounts. For nearly 20 years, these provisions had been interpreted and administered by both Revenue Canada and manufacturers and importers in a manner consistent with the underlying policy intent. The tax charged on automobile air conditioners has routinely been included in the price charged to consumers.

The amount of government revenue at risk is substantial. It is therefore appropriate that definitive action be taken so that there can be no doubt as to the application of these provisions for both future and past transactions.

Next, I will deal with the matter of waiver of interest or penalties. The second amendment relating to excise taxes provides discretion for the Minister of National Revenue to waive or cancel interest, or a penalty calculated in the same manner as interest, under the excise tax system. This amendment will achieve greater harmonization of the administrative rules under the excise tax system with those under the income tax and sales tax systems, which already provide for this waiver.

The amendment will further help to ensure fairer administration of the excise tax system.

Consistent with the manner in which this discretionary power has been exercised under the Income Tax Act and sales tax systems, the Minister of National Revenue would have the ability to waive interest in certain circumstances. An example of that could be a case whereby, despite a taxpayer's best efforts and as a result of extraordinary circumstances beyond the control of the taxpayer, the taxpayer has been prevented from meeting certain deadlines, and thus has incurred the interest.

This bill also addresses electronic filing. Bill C-13 reflects another improvement to the administration of the tax system. Honourable senators may recall that the Prime Minister recently announced the federal Government On-line initiative — the key element of the government's Connecting Canadians strategy — aimed at making Canada the most connected nation in the world. This initiative provides Canadians with another way to access the information and services that they receive in person and by telephone. You may know that businesses can now file GST/HST returns and remittance information electronically.

However, under the existing legislation, the person who wishes to do so is required to apply to the Minister of National Revenue for authorization. This procedure is cumbersome and onerous. Bill C-13 proposes amendments to streamline the administrative procedures and to harmonize them with those under the Income Tax Act, thereby facilitating the electronic filing of GST/HST returns.

In conclusion, honourable senators, the measures contained in Bill C-13 that I outlined here today propose to refine, streamline and clarify the application of our tax system. At the same time, they reflect the government's commitment to ensure that our tax system is fair. I therefore urge all honourable senators to give this bill their full support.

On motion of Senator Doody, debate adjourned.

Canada Foundation for Sustainable Development Technology Bill

Second Reading—Debate Adjourned

Hon. Nick G. Sibbeston moved the second reading of Bill C-4, to establish a foundation to fund sustainable development technology.

He said: Honourable senators, I am pleased to rise today to move second reading of Bill C-4. This is the first bill that I have had the privilege to introduce in the Senate.

Hon. Senators: Hear, hear!

Senator Sibbeston: Honourable senators, to lend some context to my remarks, I would point out that we live in era in which we face many challenges and opportunities. Sustainable development is one such challenge, and it is one that Canada must face head on if we are to continue to integrate economic and social progress.

One way to address sustainable development is with new ideas, new knowledge and new technologies. In essence, sustainable development hinges on our capacity to innovate.

Honourable senators, when we look back at the last decade to such things as the reduction of automotive emissions, the abatement of air pollution, improvements in energy efficiency and technologies to enhance oil recovery, which at the same time reduce the environmental footprint, the common factor has been new thinking, and new and affordable technologies. Innovation has helped us progress as a society, and it will continue to do so in the future. New technological innovations are indispensable to our success.

Bill C-4 would establish the Canada Foundation for Sustainable Development Technology. This foundation would administer the sustainable development technology fund of $100 million that was announced in Budget 2000. This is but one way the Government of Canada is delivering on its key themes of innovation, quality of life and climate change and clean air.

The initial focus of the foundation will be on climate change and clean air, because these are two major environmental challenges of our time. The social and environmental benefits are universal and potentially large. For example, there are already signs of climate warming in the McKenzie Valley in Northern Canada, where I come from. The McKenzie Basin, which includes parts of the three territories as well as Northern British Columbia, Alberta and Saskatchewan, has experienced a warming trend of 1.5 degrees centigrade this century. The McKenzie Valley impact study of 1997 highlighted that regional effects of climate warming would involve landslides from permafrost thaw, reductions in water levels, increases in forest fires and reduction in forest yield. Changes in climate could have snowballing effects. Changes in vegetation and water levels could affect wildlife migration and reproduction. This could affect the sustainability of native lifestyles, so even though the people of the North have caused little of the problem, the impact on them could be significant. I have always been personally amazed that pollution from southern industrial areas shows up far in the North, in the lichen and eventually the animals that eat the lichen. That is why we need the foundation to fund technology projects that could help mitigate the release of pollutants and greenhouse gases that cause climate change.


The foundation will operate at arm's-length from the government in order to provide a new vehicle for engaging Canadians and fostering the long-term collaboration that is necessary to tackle the sustainable development challenge. The foundation will operate close to the private sector and will enhance its engagement in these tough policy issues of climate change and clean air.

The foundation will provide funding for projects that help reduce greenhouse gas emissions, reduce the carbon intensity of energy systems, increase energy efficiency, capture, use and store carbon dioxide, lower volatile organic compounds, nitrogen oxides and fine particles released in the air, and so on.

Honourable senators, technologies are needed in all regions of the country, from north to south, from west to east. Some technologies can be put to use in all regions, while others are specific to local conditions and circumstances. For example, in the North, there is an opportunity to determine how to safely extract methane gas hydrates found in the permafrost and below the sea floor so that it can be used as a potential new source of clean energy.

In remote communities, technologies to produce wind- generated electricity, with traditional diesel generation, could help reduce greenhouse gas emissions and also reduce air pollutants that can cause health problems.

Ultimately, the extent to which the fund advances the cause of sustainable development depends on good targeting, good management and good administration. Bill C-4 provides for good governance practices through the foundation's organizational structure, its legal status and its operational practices.

Bill C-4 calls for the creation of a board of directors. The board would operate at arm's length from the government. The board would be an executive group. It would supervise the management of services of the foundation and, subject to the foundation's bylaws, it would exercise all its powers.

The second component of the governance structure is a group representing stakeholders and potential clients of the foundation. We call the people on this body "members of the foundation." They will review the activities of the board of directors.

The board would consist of 15 directors, all of whom would be from outside government. The first six members and the chairperson would be government appointees. The other eight would be appointed by members of the foundation.

Membership would be balanced in terms of expertise. The board would comprise directors who collectively represent the whole spectrum of sustainable technology development in Canada: public, private, academic and not-for-profit.

Last, but not least, the board will have balance in a geographic sense, with members drawn from all regions of Canada.

In the other place, there was debate on the checks and balances that the government would have over the foundation. Bill C-4 also prescribes measures to ensure prudent financial management and accountability, requiring the foundation to establish sound financial and management controls and to appoint an independent auditor to verify the effectiveness of these controls.

The legislation also requires the annual reports to include an evaluation of results achieved by the funding of projects year by year and accumulatively since the start of the foundation. This report will be publicly available and will be tabled in Parliament.

In addition, the detailed terms and conditions associated with the management of the fund are contained in a funding agreement between the Government of Canada and the foundation. The Auditor General of Canada will have scrutiny over the funding agreement.

Honourable senators, Bill C-4 does more than outline the machinery. It spells out who is eligible to receive funding. To accelerate technological innovation and foster partnerships, no single entity will be eligible. Instead, private-sector commercial corporations, universities, not-for-profit organizations, industrial associations and research institutes will have to band together to form partnerships and apply for funding together.

By supporting collaborative arrangements rather than single entities and by ensuring that funds are leveraged from the private sector, the proposed foundation will support measures to get new technologies into the economy quickly and efficiently so that all Canadians may benefit. Collaboration amongst the diverse actors will accelerate the development and demonstration of new sustainable development technologies.

In today's global economy, one must be aware of activities and opportunities abroad. However, one must also strive to ensure that our own companies have the greatest chance of succeeding — of succeeding abroad and here at home. As such, Bill C-4 stipulates that the fund will support projects that are primarily carried on in Canada and that eligible recipients enter into collaborative arrangements that are established in Canada with Canadian organizations.

Activities of the proposed foundation will complement leverage and work compatibly with ongoing federal and provincial programs related to climate change and clean air, including those of the federal Program of Energy Research and Development, the Natural Sciences and Engineering Research Council, the Canada Foundation for Innovation, the Industrial Research Assistance Program, Technology Early Action Measures, and Technology Partnerships Canada.

In addition, the foundation's activities will allow Canadians to be one step closer to meeting international commitments on climate change and clean air.

To allow the government to start implementing the mandate of the fund as soon as possible, Bill C-4 also contains conditional clauses that provide for the Governor in Council to designate a private sector foundation to serve as a foundation in accordance with the requirements of the legislation. The legislation stipulates that in this eventuality the assets and liabilities of the private sector foundation would be transferred to the foundation and that its board of directors and corporation membership would dissolve, thus triggering the appointments of the board and the members of the foundation as stipulated in the legislation.

These conditional clauses are also contingency clauses, insurance against unnecessary slippage of schedule in the start- up phase. In the event of administrative or other delays of process, they would allow the government to fulfil its promise to establish the fund.

During the debate in the other place, members of Parliament were concerned about the fact that the bill did not contain a cap on the maximum allowable funding for each project. Let me assure honourable senators that the terms and conditions in the funding agreement specify that the foundation is to lever investments from other sources. The foundation will fund on average 33 per cent of eligible project costs. However, it will never fund more than 50 per cent of eligible costs of a particular project. This requirement is consistent with the promotion of teamwork and a good predictor of a project's success when proponents are willing to put up some of their money.

Before I close, honourable senators, let me briefly summarize the history of Bill C-4. The legislation is based upon more than two years of the most open, transparent and comprehensive consultation. The provinces were thoroughly involved in the process, as were the municipalities, the private sector, and academic institutions and non-governmental organizations. Every aspect of Canadian life was consulted in the two-year process. The sustainable development technology foundation is the product of that process.


Dialogue on the bill continued even after the bill was tabled in the other place on February 2. As a result, clarifying amendments were presented to the House of Commons Committee on Aboriginal Affairs, Northern Development and Natural Resources. After vigorous and constructive discussion, the legislation and the clarifying amendments received approval from the committee and from the other place.

In this new millennium, Canada must lead the world as a living model of sustainable development. To meet the challenges of climate change and clean air we must maintain the momentum. We must keep moving forward in knowledge and technology. We must develop new energy mixes. We must transfer every part of the energy chain from production to end use. The legislation now before you, honourable senators, will help us reach that goal.

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


Privacy Rights Charter Bill

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Finestone, P.C., seconded by the Honourable Senator Rompkey, P.C., for the second reading of Bill S- 21, to guarantee the human right to privacy.-(Honourable Senator Robichaud, P.C.).

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I have the pleasure to speak to you today on Bill S-21, to guarantee the human right to privacy.


I should like to inform Senator Forrestall that my speech is very short, so he will most likely have time to make his very shortly.


The bill is the result of the work and determination of Senator Finestone. She should be congratulated on her efforts to promote this important matter. She has long been a champion of the right to privacy and has worked tirelessly to protect the privacy of Canadians. As the Chair of the Commons Standing Committee on Human Rights and the Status of Disabled Persons, she shepherded an in-depth examination of the issues involved in privacy protection. The report published by the committee under the title: "Privacy: Where Do We Draw the Line," contains an careful assessment of many of the issues we are facing today. Needless to say, Senator Finestone is very well informed on the subject.

However, we would like that Bill S-21, to guarantee the human right to privacy, be now sent to the Senate Standing Committee on Social Affairs, Science and Technology for more thorough study so that we may examine the impact it would have on the privacy of Canadians. The committee study would give senators an opportunity to examine certain issues that have been raised in connection with this bill.

The committee could try to clarify the definition of "privacy." Definitions vary considerably. In many countries, it concerns the attempt to protect personal information. Elsewhere, it is the limit set on society's right to interfere in the personal affairs of its citizens. Reference is often made to physical, territorial or informational privacy. A study by the committee could explore more thoroughly whether privacy is a fundamental human right.

It has been brought to my attention that there is already a legislative infrastructure for matters of privacy. It includes sections 7 and 8 of the Canadian Charter of Rights and Freedoms, the Privacy Act, the Personal Information Protection and Electronic Documents Act, the Access to Information Act, and certain provisions of the Income Tax Act, as well as the Statistics Act and the Corrections and Conditional Release Act. These statutes have their own privacy codes.

The committee could enlighten us as to how Bill S-21 would tie in with the existing legislation. We would also like to be sure that the bill's provisions are consistent with the democratic concept of the burden of proof; that is, the obligation to prove that what one is doing is indeed legal, instead of being able to do whatever one wants as long as it is not illegal, and also whether the mechanisms proposed in Bill S-21 are all consistent with the Criminal Code and recognize that it takes precedence in Canadian law. The committee could also elaborate on the role of the federal Privacy Commissioner in the context of this initiative.

Honourable senators, Bill S-21 is an important legislative initiative which has come about through the hard work of our honourable colleague Senator Finestone. Without wishing to get into debate, I believe that it would be entirely appropriate to seek the answers to certain questions and others that might be raised.

The Senate standing committee could seek information by inviting several experts in this field to appear before it and build on Senator Finestone's efforts to guarantee the human right to privacy.

Subject Matter Referred to Committee

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I move, seconded by the Honourable Senator Finestone:

That Bill S-21 be not now read the second time but that the subject-matter thereof be referred to the Standing Senate Committee on Social Affairs, Science and Technology; and

That the Order to resume debate on the motion for the second reading of the Bill remain on the Order Paper.


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

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, before voting on the motion in amendment, I would place on the record our hope — indeed, our expectation — that the committee will do its work with all due dispatch. We look forward to having the advice of the Standing Senate Committee on Social Affairs, Science and Technology with no unnecessary delay.

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

Hon. Senators: Agreed.

Motion in amendment agreed to.

Canada Transportation Act

Bill to Amend-Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Kirby, seconded by the Honourable Senator Mahovlich, for the second reading of Bill S-19, to amend the Canada Transportation Act.—(Honourable Senator Forrestall).

Hon. J. Michael Forrestall: Honourable senators, I rise today to take part in the second reading debate on Bill S-19, to amend the Canada Transportation Act, a measure brought forward by our colleague Senator Kirby.

As the honourable senator pointed out, this is a short bill which would simply require both domestic and foreign air carriers to report the number of flight oversales, the number of items of lost baggage and the number of flight delays on a monthly basis to the Minister of Transport. The Minister of Transport would then compile this information and release it to the travelling public on a monthly basis. I gather this is designed to give Canadians a better picture of customer service in airlines operating in Canada.


We are told by Senator Kirby that this information is required in the United States, and I suppose that if it is good enough for our neighbours, it should be good enough for us.

Before getting into a discussion of the bill, I should like to reiterate the position we took on Bill C-26, the airline restructuring bill which we passed during the last Parliament. I believe that air transportation is an area in which this government's neglect of an issue has really hurt the Canadian people.

The Minister of Transport should have seen the air crisis coming long before it was presented to us in a take-it-or-leave-it takeover bid by Onex, the holding company of Mr. Schwartz. The legislation catch-up the government became engaged in did not serve Canadians well. However, that is all in the past. I said at the time that I thought it would take at least two years for things to settle down in the airline industry in Canada. Now it will take at least two years for Air Canada to make the necessary adjustments to its operation and to accommodate its takeover of Canadian Airlines.

We are at a point now where smaller airlines have already commenced operations. At least three in Canada have joined forces and are well advanced in sorting out routing, scheduling and other internal problems.

There is a consumer process in place. We have concerns about adding another level of reporting to the bureaucracy that has already been imposed on the airlines by Bill C-26. If we want to get back into a regime of airline regulation, perhaps that is the debate that we should enter into and get on with it.

I am a little concerned that the cost of the implementation of Senator Kirby's bill will be passed along to the consumer. We all know that this consumer is already being hit heavily by passenger facility charges at most of Canada's major airports. I can only describe as obscene the charge at Pearson for simply changing planes there, and that is something over which the travelling public has very little, if any, control.

Senator Kirby and others who opposed the original restructuring and rebuilding scheme for Pearson perhaps can now look a little more askance and ashamed than they were at the time.

What information will we get as a result of this bill? That large airlines lose baggage and small airlines do not? That charter airlines oversell and regularly scheduled airlines do not? I am not sure that the travelling public does not already know this and the cost of such reporting will undoubtedly be paid by the ticket purchaser. Does that make it all worthwhile? I am not sure.

We want to hear from the Minister of Transport as to why such requirements were not in Bill C-26 and how Senator Kirby's process fits in with the consumer complaints regime headed by Mr. Bruce Hood.

In any event, honourable senators, we look forward to this matter going to committee. There is some degree of urgency because of questions of seniority in merging the lists of pilots, airline attendants, mechanics, ground support staff and so on. We have seen very serious consequences already in the merging of the pilot seniority list. Where a pilot stands on the seniority list is his entire life. It is his career; it is his future; and it is all that he has to protect him. We will look forward to hearing from the President of Air Canada. I hope the minister can appear before us as well. Senators on this side would look forward to the bill's early referral to the Standing Senate Committee on Transport and Communications.

On motion of Senator Poulin, debate adjourned.

State of Health Care System

Report of Social Affairs, Science and Technology Committee—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Kirby, seconded by the Honourable Senator Poulin, for the adoption of the second report (interim) of the Standing Senate Committee on Social Affairs, Science and Technology entitled: "The Health of Canadians — The Federal Role, Volume One: The Story So Far," tabled in the Senate on March 28, 2001.—(Honourable Senator DeWare).

Hon. Mabel M. DeWare: Honourable senators, since this is such an interesting topic for us all, I felt that I had to speak to the interim report of the Standing Senate Committee on Social Affairs, Science and Technology entitled "The Health of Canadians — The Federal Role." I should like to take this opportunity to congratulate the committee, and in particular the chair and deputy chair, Senator Kirby and Senator LeBreton respectively, for their excellent work.

I commend all members for the dedication, experience and enthusiasm they have brought to the task at hand. I have no doubt that they will successfully meet the many and significant challenges that such a major undertaking involves.

Already, thanks to their expertise and professionalism, they have generated a lot of positive coverage in the media and created positive expectations among Canadians. In fact, some people have gone so far as to wonder aloud why the government appointed former Saskatchewan Premier Roy Romanow to do something that sounds suspiciously similar. Although his mandate is rather unclear at this time, it seems likely that his commission will be duplicating, in at least some respects, the very impressive work of this committee.

In any event, the committee's study on the future of Canada's health care system is very timely given that health care in our country appears to be approaching something of a crossroads. Its importance in the national debate that is emerging on the future of Canadian health care cannot be underestimated. Our health care is central to Canada's national identity, and individual Canadians must be assured that adequate health services will continue to be available when they and their families need them.

With this study, the Standing Senate Committee on Social Affairs, Science and Technology is continuing the fine tradition established by previous Senate committees that have dealt with a wide range of issues, including various aspects of health care.

I remind this chamber of the June 1995 report of the Special Senate Committee on Euthanasia and Assisted Suicide entitled "Of Life and Death." The committee heard testimony for 14 months from witnesses across Canada and received hundreds of additional letters and briefs. While Canadians were divided on the issue of assisted suicide and not at all supportive of any potential move toward euthanasia, a strong consensus emerged that government should make palliative care a top priority in the restructuring of the health care system. The Prime Minister has made a very positive move in appointing a cabinet minister to look after this particular aspect of our health care system.

I also ask honourable senators to recall the June 2000 update to that report entitled "Quality End-of-Life Care: The Right of Every Canadian." It was produced by a subcommittee of the Standing Senate Committee on Social Affairs, Science and Technology that was ably chaired and co-chaired by Senators Carstairs and Beaudoin respectively.

Their commendable work confirmed that Canadians desire the same quality of health care at the end of life as they do at the beginning. This principle was central to the subcommittee's recommendation that a national strategy for end-of-life care be developed, implemented and monitored.

The update also reflected and expanded upon the recommendations made by the original committee. The need for good palliative care, including proper pain management, is becoming increasingly important. It has been a long and difficult struggle to establish palliative care as a viable alternative to other health care initiatives, especially in a time of shrinking health dollars. However, I am confident that the issues surrounding palliative care and pain management will receive due attention in the health care study currently being conducted by the Social Affairs Committee.

I look forward to seeing the committee make strong recommendations in this area as its work progresses and to seeing the government implement them.

It was also brought to my attention at the Canadian Medical Association breakfast hosted by our colleague Dr. Wilbert Keon on April 5 that the services provided by medical and surgical specialists and subspecialist physicians must not be overlooked. I was reminded that current debate has focused on the need to reform the primary care system, although the specialty care system has suffered from funding cuts as well. The CMA has produced a discussion paper that Dr. Keon referred to in his Senator's Statement. It identifies key issues and challenges in this area, and I am certain that the committee will draw on this as well as other sources in its study.


The Canadian Medical Association has also embarked on a study of the future of health, health care and medicine. I am sure that will be most helpful to the committee's study. A variety of groups representing other health care providers and patients will also be able to make a valuable contribution to the work of the committee.

In the meantime, the first of five volumes of the committee's report provides a thorough overview of the origins and background of Canada's health care system. I was pleased that the Standing Senate Committee on Social Affairs, Science and Technology began its study by looking at where we are now and how we got here, as well as public expectations regarding health care. With the abundance of suggestions already out there about options for the future, it would have been easy to put the cart before the horse. I am glad the committee did not succumb to that temptation.

As Senator Kirby noted in this chamber on March 29, 2001, it does indeed provide a solid foundation for the challenges that will confront the committee in the next four phases of this study. The committee has already started tracking some of those difficult challenges by exploring, in a general way, the growing role of such things as drug therapy, home care and the trade-offs between different approaches to dealing with their rising costs.

It is clear that the members of the committee are keeping an open mind regarding all aspects of Canada's health care system against the backdrop of the 21st century, and keeping the needs of Canadians first and foremost. They are asking the right questions. I am confident that they will find the appropriate answers.

For now, their interim report forms a good starting point for the continuation of their work, one which can inspire confidence in Canadians, too, and give them hope that the future of their health care is in good hands.

I know that my colleagues join me in congratulating the Standing Senate Committee on Social Affairs, Science and Technology and wishing its members all the best in their ongoing contribution to the health care debate in Canada.

On motion of Senator Milne, debate adjourned.


National Anthem

Inquiry—Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Poy calling the attention of the Senate to the national anthem.—(Honourable Senator Pépin).

Hon. Gérald-A. Beaudoin: Honourable senators, I should like to say a few words on the subject of Senator Poy's inquiry relating to the national anthem.

At first glance, the English version of our national anthem discriminates against women. I believe it is possible — if so desired by federal parliamentarians — to amend the schedule to the National Anthem Act in order to modernize our national anthem.

I will limit myself to the legal aspect, which I feel is a preliminary step. Before deciding to take action, we need to know whether we have the power to do so as parliamentarians.

The Canadian Charter of Rights and Freedoms, the very heart of our Constitution, contains a most significant provision which guarantees absolute equality of the sexes.


I quote here the English version of section 28, which reads as follows:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.


The effect of this section is that the notwithstanding clause, section 33, cannot in our opinion be applied to the principle of equality of the sexes. No legislator can, by invoking the notwithstanding clause in section 33, enact any measure that violates the equality of the sexes.

In our opinion, even section 1 of the Charter, which addresses reasonable limits, is set aside by the unequivocal wording of section 28, which begins with a notwithstanding clause.


Pofessors William Black and Lynn Smith have written on the meaning of section 28 of the Charter. In the third edition of our collective work, Beaudoin and Mendes, entitled: Charte canadienne des droits et libertés, Wilson & Lafleur, 1996, at pages 894 to 895, state:

The legislative history and the wording of the section also means that section 28 stands in the way of legislative override, pursuant to section 33, to permit sex discrimination. In addition, it probably modifies the power to uphold a discriminatory statute, program or activity under section 1, at least when proposed limitations deny, by intent or effect, the equal enjoyment of rights or freedoms guaranteed elsewhere in the Charter.


As Senator Poy mentioned during her speech, on February 20, the national anthem is one of our symbols. Several attempts have been made to change our national anthem, but so far they have not been successful.


They are private bills to which Senator Poy referred in her speech.


We should examine this issue. Section 28 of the charter provides an important basis. Amending our national anthem to reflect the equal status of men and women could be a nice way to give, in practical terms, effect to section 28 of the Charter.


Canada is probably the parliamentary democracy that protects most adequately the equality between men and women. Section 28 of the Charter enshrines clearly such equality. Furthermore, that section starts with a notwithstanding clause to clearly indicate that it is a very special section. The section is considerably reinforced.


Over the past few years, there has been a tendency among a number of groups, including universities, the media and Parliaments, to feminize titles, duties and designations that used to exist only in the masculine form in French. I am thinking of words such as "premier ministre," "sénateurs," "professeurs," "auteurs," "écrivains," "présidents" and several others. This movement is gaining general acceptance and seems logical. We have entered the era of charters of rights and freedoms, particularly since the 1948 Universal Declaration of Human Rights.


We must, however, distinguish the present problem from the famous "persons" case. In the Muir Edwards case of 1930, our tribunal of last resort at that time, that is the judicial committee of the Privy Council, ruled that the word "person" in section 24 of the Constitution Act, 1867, includes women. The Parliament of Canada did not amend the Constitution of Canada. It was a judicial ruling. It was a question of constitutional interpretation.

We know that our Constitution is composed of three elements: the constitutional texts, the interpretation and rulings of the courts, and, finally, the conventions of the Constitution. The famous ruling of the Privy Council in 1930 is part of our Constitution. In the present case, the words "of thine" would be substituted by the words "thy sons." It would be an amendment to an existing statute by another statute of Parliament.

Honourable senators, I wish to say a few words about the notion of copyright. The rule in matters of copyright is as follows: In Canada, the copyright no longer exists 50 years after the death of the author. Furthermore, if the wording of the national anthem is in the public domain, as it is declared, the Parliament of Canada may change it. The Parliament, therefore, has such a power. As the National Anthem Act itself uses the word "public domain," we have such a power.

My first reaction at this moment is that Parliament may intervene in the field of the national anthem. If ever a bill is presented, the Senate may be the logical legislative house to introduce it. Then the legal question will be studied in detail.

A second point is, should we adopt the bill? If it is the intention to restrict ourselves to the amendment of the words "thy sons," I am of the opinion, in view of section 28 of the Charter, that we may proceed. However, we should avoid rewriting poems, literary works, et cetera. There are some limits. We must be prudent.

Here we are concerned only with one objective, which is the discrimination between men and women. We would be justified to make such an amendment having regard to section 28 of our Charter of Rights and Freedoms. I suggest, honourable senators, that we continue to debate the suggestion made by Senator Poy.

On motion of Senator Poy, for Senator Pépin, debate adjourned.

Canadian Business and Government Bureaucracy

Inquiry—Debate Adjourned

Hon. Donald H. Oliver rose pursuant to notice of February 6, 2001:

That he will call the attention of the Senate to the relationship of Canadian business and the Ottawa bureaucracy and how it was affected by the recent circulation of a memorandum by Peter Dey, the former Chair of the Ontario Securities Commission and now Chairman of Morgan Stanley Canada. He will also draw Honourable Senators' attention to that relationship in relation to a recent publication by the Public Policy Forum dealing with the Two Solitudes.

He said: Honourable senators, I am pleased to rise to speak to this inquiry.

Canada has one of the finest public services in the democratic world. We have excellent managers and we excel in IT and business systems. They serve both our Parliament and our country well. Developing countries look to our systems as something to emulate. It is the senior public servants who assist us as parliamentarians in the development of public policy initiatives that help Canada keep its United Nations' rating as "the best country in the world in which to live."

We are blessed in Canada to have bureaucrats of the calibre of Mel Capp, Kevin Lynch, David Dodge, Ian Green, Peter Harder and others. It is my view that, in the development of new initiatives that help keep us competitive, it is important that our bureaucracy have a direct interface with what I will euphemistically call Bay Street, the business community.

Honourable senators, in the 10 years since being summoned to this place, I have become increasingly concerned about the gulf that exists between business and the institution of Parliament. Canada's leading CEOs and the apparent lack of rapport with Ottawa's leading bureaucrats has been a cause of concern. I have raised this topic frequently, both in the Senate and in addresses to business communities at various seminars.

Last fall, honourable senators, irreparable damage was done to the business-bureaucratic relationship by Peter Dey, the former chair of the Ontario Securities Commission. Newspaper accounts indicate that he had a private meeting with the new Deputy Minister of Finance, Kevin Lynch, who spoke in confidence with him about a number of matters. They also spoke to other bureaucrats. The bureaucrats provided information to Dey and his associates. Bay Street broke that confidence by circulating a memo to the heads of the various financial institutions in Canada, especially the major banks. This incident did not help bridge the gulf existing between business and the bureaucracy.

Honourable senators, I believe that the gulf must disappear if we are to develop and proceed with good financial public policy in the interests of all Canadians. In my opinion, this breach of confidence did more to strain the relationship between the financial sector in Canada and the government than Paul Martin refusing to allow the banks to merge three years ago, and that act alone probably turned the financial services sector back three or four years.

Here is what happened: There was a meeting in Kevin Lynch's Ottawa office last September 25, attended by Peter Harder, the Chairman of Morgan Stanley Canada Limited. They discussed a wide range of issues in the financial services sector. They discussed bank mergers and the methodology that banks would be required to follow under the old Bill C-38, which died on the Order Paper.

Later, Morgan Stanley, over the signature of its chairman, Mr. Dey, circulated a memorandum detailing the contents of what was purported to be a private, off-the-record, get-acquainted meeting. The memorandum, the contents of which were widely circulated in our national newspapers, both The Globe and Mail and the National Post, indicated a willingness on behalf of the Department of Finance to be very cooperative should merger discussions and applications begin again. The note was sent to the chief financial officers of Canada's five major banks. An apology was issued to Mr. Lynch in which Mr. Dey stated, according to the newspapers, that the contents of the memorandum he circulated did not reflect the views of the Department of Finance.

I will not discuss the details of who said what about what and when, and who retracted what, but one lawyer involved in the business of acquisitions and mergers was quoted in The Globe and Mail as saying, "I don't think this reflects well on anyone, what it does is call into question the integrity of the process."

Honourable senators, that is sad. From news reports I have read, this affair breached the trust that must exist between the two if the senior bureaucracy is to consult senior business on the efficacy of planned new public policies.

For too long, Bay Street has demonstrated an inability to comprehend the viable significance of an open relationship with Ottawa, almost as though Ottawa is considered to be unworthy of notice. However, not a day goes by that I do not observe examples of how Ottawa helps shape the destiny of the bottom lines of many of Canada's corporations.


The divide between Bay Street and the bureaucracy must be bridged if Canada is to take its place as a leader in the global economy at the beginning of the 21st century. Both government and industry have vital roles to play in ensuring a prosperous future for all Canadians, but they should not be attempting to carry out their respective roles in isolation from one another or by ignoring each other's needs and desires.

Perhaps Paul Tellier, Chairman and CEO of CNR, and Canada's Outstanding Business Person of 1998, said it best:

...Canada would be an even better country if we had more executive exchanges between the public and private sectors. Business has a responsibility in the political process. This responsibility goes way beyond fundraising or financial contributions. Stay out of the policy-making process and business gets the platform it deserves.

He stated something very similar as chairman of this year's Public Policy Dinner held recently in Toronto.

Concern over the growing lack of understanding between government and business manifested itself in a recent study published by the Public Policy Forum dealing with the general state of the industry-federal government relations. Its paper entitled "Bridging Two Solitudes" should be required reading for anyone who seeks to influence the federal public policy process. Because of the importance of this study and its relevance to the issue I am discussing, I will spend several minutes on its main findings.

Early last year, the Public Policy Forum surveyed corporate executives responsible for government relations, including executives in the financial services sector and senior public servants, to obtain their views on the evolution and present state of their relationship and to determine which government-industry relations practices were most effective.

First and foremost, if there are key messages in the study results, the corporations and the federal government believe that they are carrying out their side of the relationship effectively but, not surprisingly, each has doubts about the other side's performance.

The government respondents view themselves as open and responsive to industry representations and feel that such representations have an impact on government decisions. They are less certain that industry understands the government's decision-making process or that industry offers policy proposals that respond to the needs of the public as well as industry's self- interest.

By contrast, corporate respondents believe they understand how government works and that their proposals are balanced, but they feel that government does not adequately consult them and that their representations do not have real impact on government decisions.

The survey revealed a significant amount of agreement among corporate and government respondents on which advocacy techniques work and which ones do not work. Both groups felt that building coalitions with like-minded corporations, face-to- face meetings with politicians and public servants, and networking activities with one or two groups are the most effective techniques.

When asked to identify what single initiatives industry and government could undertake to improve the relationship between them, both government and the private sector pointed to better-organized representation as the number one improvement. They also identified the need for more communication between government and industry and a more collaborative approach to the relationship.

In their book entitled Business and Government in Canada: Partners for the Future, Professors Wayne Taylor, Allan Warrack and Mark Baetz are more blunt than the Public Policy Forum in detailing the mistakes made by industry when dealing with government. They list seven mistakes or incorrect assumptions, and I will deal with only four of them.

First, they say business still believes that economic power emanates totally from boardrooms. Businesses refuse to recognize that in the past 25 years equal if not greater economic clout now comes out of the Prime Minister's Office, the Privy Council Office and the line departments. CEOs ignore to their peril the fact that they are only additional players in a pluralistic, political system in which government must appease or otherwise deal with numerous competing interests.

Second, business fails to deal with the government in a businesslike manner. The basic tasks for business managers are gathering and analyzing data, identifying and solving problems, formulating and implementing strategies, and making decisions based on well-researched facts. However, when business comes to government, it often pleads cases of self-interest rather than offering to help government through the sharing of information and providing analysis that could help provide solutions of benefit to all sides. One senior bureaucrat told me that business demands are often unsupported by evidence and that alternative solutions are not suggested.

Third, even when intentions are good, businesses may often approach the wrong people with the wrong information at the wrong time, failing to understand government's organizational dynamics.

Finally, in the opinion of the professors, business organizations come before governments lacking agreement among their various members on fundamental parts of their arguments. One particular business organization in an industry approaching government all by itself will usually not bring about positive changes in government public policy. Also, businesses are particularly inept at mobilizing public support for ideas, the punitive bank merger process of several years ago being a perfect example.

On a positive note, on specific matters, especially during the Mulroney years in relation to the free trade file, attempts at consultation and cooperation between the two solitudes were quite rewarding. In 1986, an advisory group of business leaders was appointed for each of the 15 major sectors of the economy. They were collectively called sectoral advisory groups on international trade. The chairs of these groups reported through the International Advisory Committee to the Minister of International Trade. Both groups were staffed by government officials and consulted by various academics and consultants.

Reports of the effectiveness of these groups indicate that they were very successful. Business was able to communicate its concerns to government, and government priorities were influenced by these concerns. Both government and industry were working towards a deadline in an area of vital concern to all international trade. This was a significant priority for both sides.

It is clear to me that business must find an effective method to match its needs with the needs and interests of government and communicate this in an honest and forthright manner. Conversely, government must provide greater access for business and be willing to listen to and digest business arguments. In my opinion, the centralizing of decision making in Ottawa has reduced the power of government departments and their usefulness as contact points for business. Readily accessible contact points are needed for business so that they can build a continuous dialogue with specific government departments and increase government's knowledge about industry problems.

If business is to compete globally and respond effectively to the challenges and opportunities presented in the electronic marketplace, it must develop a working partnership with government. Each must recognize the other's strengths, needs, constraints and perspectives on issues and methods of operations. One way to do that is through regular executive interchange, as mentioned by Paul Tellier. Another is for industry to hire people from government and vice versa.

It is both interesting and instructive to note that the private sector in the United States has long sought to hire senior government officials. Their senior officials' experience, expertise and knowledge of government are highly valued. In Canada, movement from the ranks of the public service to the private sector is less common. It does happen but it is less common. Where it does exist, it would appear to be highly successful. Companies like Power Corporation, TD Canada Trust, CAE and CN have benefited from the knowledge and expertise of people such as Derek Burney and Paul Tellier, to name a few, who have been recruited from senior bureaucratic positions. Such expertise creates opportunities to participate in the public policy process that may not be otherwise recognized as being available. Perhaps, more important, it allows industry to have a realistic assessment of what is achievable in the current political environment.

It is instructive for us as senators to note that the Public Policy Forum study reported that neither industry nor government respondents thought it effective to deal with parliamentary committees. Both sides felt that the influence of the Prime Minister's Office, cabinet ministers and their political staff, and deputy ministers was increasing.


There are some things, perhaps, that senators can do. One is to engage in informed dialogue with business and industry. A dialogue attempting to improve relations with industry occurred when I chaired the Standing Senate Committee on Transport and Communications. I have long been of the view that it is incumbent upon legislators to understand the business community and the environment in which it operates. As chair of that committee, I would invite various companies from sectors of the economy within the committees' mandate to gatherings where they would have an opportunity to tell committee members about the business environment in which they operate, issues of concern to them and the state of the industry. These informal gatherings, which were open to all senators, were beneficial to all concerned. The dialogue provided members of the Senate with an opportunity to know the industry players, gain a better understanding of the challenges and opportunities faced by the industry —

The Hon. the Speaker pro tempore: Senator Oliver's time has expired. Does he ask for leave to continue?

Senator Oliver: I have four more minutes.

The Hon. the Speaker pro tempore: Is leave granted?

Hon. Senators: Agreed.

Senator Oliver: Face-to-face contact with members of Parliament and senators, and regular networking with politicians is an effective way for the business sector to have its policy concerns brought before the public. Parliamentary committees are important players in the public policy arena, but it is up to the private sector to avail itself of this very powerful tool to help resolve difficult public policy issues.

Another method would be for senators to avail themselves of the services of the Business and Labour Trust operated by the Parliamentary Centre for Foreign Affairs, a think-tank located here in Ottawa with which I am sure senators are familiar. The mission of the Business and Labour Trust, which is a private not- for-profit group, is to increase awareness of the needs, hopes and aspirations of each group as they pertain to a particular business sector through the convening of face-to-face meetings among legislators and representatives of particular business and labour groups. I have used their services in the past to great benefit, especially when I was dealing with the telecom area and changes being brought before the Transport and Communications Committee.

We should also become involved in the work of the Public Policy Forum, particularly the work it is doing to analyze the two solitudes of business and government and its attempt to find ways to close the gap between these two pillars. The preliminary work done by the Public Policy Forum on the subject is instructive, but it should be followed up by a more in-depth work stressing the means by which these two groups can work together for better harmony. Senators could be helpful in this further analysis.

Finally, as senators, we should give some thought to having the Senate, either through a special committee or an existing committee that understands the complexity of business and industry, conduct a study that would produce recommendations for change. Such a committee would hear from representatives from the federal bureaucracy and business, allowing each group to express publicly the frustrations they feel and to put on the public record suggestions for change. We could even go back to the structure put in place during the free trade negotiations to see why they worked so well, and whether they could be adapted to current and ongoing situations.

If Canada is to succeed in the global marketplace, government and industry cannot remain as two solitudes. There is a synergy created by them both working together. I have given examples and methods by which these synergies can be developed.

I look forward to the comments and suggestions of honourable senators on this subject, and I do hope that representatives of business and government are listening.

On motion of Senator DeWare, debate adjourned.



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

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(h), I move:

That when the Senate adjourns today, it do stand adjourned until Tuesday next, May 1, 2001, at 2:00 p.m.

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

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Tuesday, May 1, 2001, at 2 p.m.

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