Hon. Francis William Mahovlich: Honourable senators, Brigadier-General
William Denis Whitaker, one of Canada's most highly decorated commanders of
World War II, passed away peacefully on May 30, 2001, in Oakville, Ontario.
General Whitaker was awarded the Distinguished Service Order at the rank of
captain for his achievement in the Battle of Dieppe in 1942. He was the only one
of the 100 officers who landed on the beach to fight his way into town and
Whitaker commanded the Royal Hamilton Light Infantry in 1944 and 1945
throughout most of the fighting in northwest Europe. In April 1995, with the
approach of the fiftieth anniversary of VE Day, the French government awarded
General Whitaker the prestigious Order of the Legion of Honour for his role in
the liberation of France.
In addition to being a war hero, Whitaker also excelled in business, where he
advanced from executive positions in radio advertising to then become the CEO of
the O'Keefe Brewery Company. He was also the president of Major Market
Advertising and a financial consultant with Nesbitt Burns. He was named Member
of the Order of Canada in 1989, was inducted into Hamilton's Gallery of
Distinction in 1995 and was one of the first RMC graduates to be awarded an
honorary doctorate in military science. He also co-authored four books on
Canada's war history with his wife of 28 years, Shelagh Whitaker.
Denis' sports career was equally illustrious, beginning with captaincy of the
RMC hockey and football teams. He led the Hamilton Tigers in 1938 and was named
all-eastern quarterback. He was named to the Canadian Forces Sports Honour Roll
and was a national senior squash champion. He chaired the Canadian Equestrian
Team for 20 years, and under his guidance the team won two Olympic, 15
Pan-American and two World Championship gold medals. He was a founder and member
of the Olympic Trust of Canada. In 1990, Denis and I were inducted into Canada's
Sports Hall of Fame, at which time I was privileged to meet this fine Canadian
Honourable senators, Denis Whitaker was a Renaissance man, as modest as he
was accomplished. "He was not an officer, he was a gentleman," said one of his
close friends. To Canadians, he was both an officer and a gentleman.
Hon. Raymond C. Setlakwe: Honourable senators, those of us who have
reached the age of wisdom have learned in various ways just how strangely
powerful myths can be.
That power is all the more fascinating because a myth is, by definition,
nothing but a pure invention, something along the lines of a fable, a
representation of facts that have been deformed or magnified by the imagination.
We are told that myths play a major role in individual or collective behaviour
Honourable senators, it has been proven that the bad reputation of chrysotile
asbestos is indeed a myth, a pure invention, a deformation of reality. This is a
product of a major Canadian industry, one that used to be prosperous and will be
again, one that sustained the economy of a region of Quebec I know well — it
being my region — and one whose potential export value justifies another
vigorous effort of development.
Proof of this has been provided here in the Senate by Senator Morin, when he
reviewed the convincing facts that demonstrate a marked difference in toxicity
between the amphibole asbestos used in the past and the chrysotile asbestos used
This proof has been clearly established on the industrial level by numerous
specialists who consider chrysotile asbestos more effective, and safer, than
alternative products, which certain governments seem to be promoting merely as a
rather strange form of protectionism.
This proof has also been recognized by the highest court in Brazil as well as
by its Chamber of Deputies. In a recent decision relating to the banning of
asbestos by three Brazilian states, these bodies came out in favour of
maintaining the controlled use of asbestos in their country.
Therefore, the myth that asbestos is toxic is gradually being dispelled,
thanks in particular to the efforts of our government and to the Prime
Minister's initiatives both here in Canada and abroad.
This myth is being debunked thanks to the sustained efforts of the Asbestos
Institute, and to the confidence and determination of the people in the areas of
Thetford and Asbestos, who depend on a safe and viable industry for their
It is thanks to their tenacity, their persuasiveness and their good work that
the Minister of Public Works and Government Services announced in the other
place the development of a policy for the safe use of asbestos in government
So I am full of hope, hope that is shared by workers and businesses that
depend on the industry, that this policy will contribute in large part to
re-establishing chrysotile asbestos, both here in Canada and in countries to
which we export, as a safe product, in terms of health, and as superior to other
substitutes, in terms of the industry.
Hon. Vivienne Poy: Honourable senators, every year during the Week
Without Violence, the YWCA organizes events across the country to raise
awareness of the effects of violence on individuals, families and society.
People take part in these activities to show others the impact that violence has
had on their lives and how the effects are felt from generation to generation.
The YWCA pays particular attention to the education of children and young people
in the hope that violence can be stopped before it starts. During this week,
youths write stories in schools, services are held in churches and art is
displayed as a protest against acts of violence.
In the wake of the events of September 11, this week has taken on new
significance for many Canadians. The tragedy in New York City has left an
indelible mark on people everywhere. We are seeing the emergence of acts of
violence against those of Middle Eastern origin in Canada, in the United States
and around the world. As Canadians, we have always prided ourselves on our
tolerance and respect for others. We should remind ourselves that the criminal
acts of a few terrorists are no excuse for racial intolerance in our country.
I congratulate the Prime Minister for his efforts to reach out to all groups
of society during this difficult time. His visit to a mosque in Ottawa and his
many statements on this issue will help to curb the voices of intolerance.
Nevertheless, I would ask that we listen to the words of Martin Luther King,
Jr., who said that hate will only lead to more hate and violence to more
In this Week without Violence, I ask all honourable senators to join me in
promoting tolerance and peace for the sake of the human race.
Hon. A. Raynell Andreychuk: Honourable senators, I give notice that at
the next sitting of the Senate, I shall move:
That the date for the presentation by the Standing Senate Committee on
Human Rights of the final report on its study into issues relating to human
rights and, inter alia, the machinery of government dealing with Canada's
international and national human rights obligations, which was authorized by
the Senate on May 10, 2001, be extended to Friday, December 21, 2001; and
That the Committee be permitted, notwithstanding the usual practices, to
deposit its report with the Clerk of the Senate, if the Senate is not then
sitting, and that the report be deemed to have been tabled in the Chamber.
Hon. Lorna Milne: Honourable senators, once again I rise to present
422 signatures from Canadians in the provinces of British Columbia, Alberta,
Saskatchewan, Ontario, Quebec, New Brunswick, and Nova Scotia who are
researching their ancestry, as well as signatures from 245 people in the United
States and two from Switzerland who are researching their Canadian roots. A
total of 669 people are petitioning the following:
Your petitioners call upon Parliament to take whatever steps necessary to
retroactively amend Confidentiality- Privacy clauses of Statistics Acts since
1906, to allow release to the Public after a reasonable period of time, of
Post 1901 Census reports starting with the 1906 Census.
These signatures are in addition to the 11,710 that I have presented in this
calendar year. The total, so far, is 12,379 signatures to this Thirty-seventh
Parliament and over 6,000 names to the Thirty-sixth Parliament, all calling for
immediate action on this important matter of Canadian history.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, my question is for the Leader of the Government in the Senate. I
should like to ask if she has been able to contact the Minister of Citizenship
and Immigration to convince that minister that the decision of the Chairman of
the Immigration and Refugee Board was completely irregular, to say the least, to
request applications for a position that has yet to be approved by Parliament.
Following on that, has the Minister of Citizenship and Immigration agreed to
instruct the chairman to withdraw his memorandum seeking applications for
candidacy until the position has been approved by Parliament?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I thank the honourable senator for his question. I want the Senate to know how
seriously I took this matter yesterday afternoon. I immediately sought a meeting
with the Minister of Citizenship and Immigration. I raised the matter with her.
The agreement made was that she would request an immediate amendment to the
circular so that it would be in line with other circulars that have gone out
"pre-passage" of legislation. The amendment would indicate clearly that the
legislation has not yet been passed and that should it be passed, the following
position would be available to potential candidates.
Senator Lynch-Staunton: Honourable senators, does the amendment to the
memorandum soliciting candidacies also amend the date that was set as the
deadline in the original memorandum, being May 22, since we know the bill will
probably not be before us for third reading until October 31? It is to be hoped
that the memorandum will stipulate that, subject to the situation, the position
will be available and candidacies will be examined only after Parliament has
given its consent and Royal Assent has been given to the bill.
Senator Carstairs: Honourable senators, as Senator Lynch- Staunton has
indicated, the date on which the chairman of the board was seeking potential
applicants was October 22. We have committed to passing this legislation through
this chamber on October 31. I passed on to the minister the exact suggestion
made by the Honourable Leader of the Opposition. I have not yet seen the revised
circular. When I do so, I will share it with the Leader of the Opposition.
Senator Lynch-Staunton: Honourable senators, as a comment rather than
a question, I find it extraordinarily disturbing that ministers make basic
corrections when they are in what I consider to be contempt of Parliament only
when Parliament raises the matter. Had Parliament not raised the matter, the
situation of the minister having already applied the bill and the chairman of
the board asking for candidacies for a position that does not exist would still
be taking place.
That is a serious flaw and it is not the first time it has happened. If it
happens again, all honourable senators should participate in some form of action
to impress upon the government our serious concerns about superseding the wishes
of Parliament, even before those wishes are known.
Senator Carstairs: Honourable senators, I should like to add the
following to the comments of the Leader of the Opposition: There seems to remain
a misunderstanding in some quarters of this venerable institution about the
necessity for legislation to be passed by both the House of Commons and the
Senate before that legislation becomes law. I assure the Honourable Leader of
the Opposition that I am making every attempt to clarify this misunderstanding.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, my question is directed to the Chairperson of the Standing Senate
Committee on Legal and Constitutional Affairs. Yesterday I asked whether the
Government of Quebec would be a witness before that committee during its study
of Bill C-7, the youth justice bill. The answer given was that it would be.
Could the chairperson reconfirm that? I have heard rumours that the
Government of Quebec will not attend.
Hon. Lorna Milne: Honourable senators, I will read the list of
witnesses and indicate whether they have been confirmed.
Next Wednesday, we are hearing from the Canadian Criminal Justice
Association, the Association des centres de jeunesse du Québec, the Quebec
Coalition of Alternative Justice and the National Association Active in Criminal
On Thursday, we will hear from the Aide juridique du Québec, the Criminal
Lawyers' Association and the Canadian Council of Criminal Defence Lawyers.
On Tuesday, October 30, the first panel will be provincial officials. I do
not yet have a full listing of which provincial officials will appear. Letters
have gone out and I know that both the Province of Quebec and the Province of
Ontario wish to appear. If they are not able to appear on Tuesday, October 30,
we will make every effort to ensure they can appear at another time.
The second panel that day will be all the Ontario provincial organizations
that have requested to appear, and there are a lot of them.
On Wednesday, October 31, we will hear from the John Howard Society, the
Canadian Association of Elizabeth Fry Societies, academic experts, and then
officials from the Department of Justice and the minister.
These people have been invited. They have indicated that they want to appear,
although I have not yet received a formal response from them.
Senator Kinsella: I thank the honourable senator for that information.
The question is asked with reference to the Government of Quebec because that
government has indicated that it is taking court action with reference to this
legislation. That action colours our analysis of the bill before the committee.
The chair has assured us that the Government of Quebec has been invited and we
were told yesterday that it is appearing.
Should there be a change in plans with regard to that one witness, I would
ask that the chair advise the house.
Hon. Jean-Robert Gauthier: Honourable senators, my question is for the
Leader of the Government in the Senate. In its report for 2000-01 tabled
yesterday, the Public Service Commission informs us in the last paragraph at
page 58, and I quote:
Commissioners also spent time on internal management issues, namely
organizational renewal for the PSC as a department.
As we know, the Public Service Commission has operated, since its
establishment in 1967, independently and at arm's length from the government in
office. The role of the commission is to ensure full compliance with and
application of the merit principle in the hiring of public servants. I have not
heard in over 30 years a single proposal that the public service be administered
by a federal department. It is the case in the United States, but not in Canada.
Could the minister tell us whether this proposal has the support of the
government, and, if so, what the advantages of such a reorganization would be?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
as the honourable senator knows, the Speech from the Throne made a strong
commitment to make our public service the best public service in the world, and
we are acting upon that commitment. A task force was mandated to look at all
statutes that govern human resource management, including the roles and
responsibilities of the various players.
It is my understanding that the task force is examining all options, and one
of the options that it is apparently prepared to review is having the Public
Service Commission become a separate ministry. However, the task force will
simply make recommendations. The government has reached no conclusions on what
those recommendations will be, since the task force has yet to report. It has
not even had any discussions about the establishment of a separate ministry.
This is a report. Among its recommendations, the reports asks for a task
force. That task force has been set up. The task force is examining the
recommendations, but I suggest that we not leap to any conclusions at this time.
Senator Gauthier: Honourable senators, the minister will acknowledge
that the act is not being reviewed by the committee, but rather by the Public
Service Commission, which says clearly:
We are working on organizational renewal for the PSC as a department.
So it is settled. I think this language is neither acceptable nor clear, and
if it is clear, I do not believe that this will work as a department.
Senator Carstairs: Honourable senators, let me make it very clear that
it is not a fait accompli. It is nothing more than a recommendation. The
recommendation is also being reviewed by the task force, but it is not a
recommendation that the cabinet is studying.
Hon. Lowell Murray: To whom will this task force report?
Senator Carstairs: My understanding is that they will report to the
President of the Treasury Board.
Senator Murray: Will the report be public?
Senator Carstairs: I cannot answer that, but I assume that, in due
course, it will be public.
Hon. Gerry St. Germain: Honourable senators, I have a question for the
Leader of the Government in the Senate. It relates to my question of October 3
about the speech made by Ms Thobani at the Women's Resistance Conference held in
I wish to read into the record an e-mail that was sent to the Premier of
British Columbia, senators from the province, and the Minister of Finance. It is
from Mr. Douglas Hensler, Professor of Management, University of Colorado,
I am writing to inform you that my colleagues and I have cancelled our
conference scheduled to be held in Vancouver, B.C. the first weekend of
November. We are doing so because of the remarks of Sunera Thobani and most
assuredly because of Secretary of State Hedy Fry's failure to immediately react
to those comments. We are re-scheduling our conference...and holding it in the
United States at some location in the Pacific Northwest.
Honourable senators, the federal government no longer funds the National
Action Committee on the Status of Women, but they do fund it on a
project-by-project basis. In light of the horrific damage that has been done in
my province, especially in the region that I represent, as a result of this
individual's comments, is there any serious reconsideration being given to
suspending the funding of these types of organizations that are, basically,
allowing hate-mongers to participate?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I shall be clear on this point: I disassociate myself from the comments of
Professor Thobani in the same way that Minister Hedy Fry, Senator Pearson and
the Prime Minister disassociated themselves from those comments. Ms Thobani did
not attend the conference as a representative of the National Action Committee
for the Status of Women, although she happens to be a past president of that
Honourable senators, to damn an organization because a past president made
comments of which we do not approve would seem to be entirely inappropriate.
More important, I find it deeply regrettable that an academic organization — I
presume that it is — would cancel a conference because they did not value free
I may not agree with Ms Thobani's comments — and I certainly do not — but I
do agree with the concept of free speech. If there is not academic free speech
in Canada, then we are in serious trouble.
Senator St. Germain: Honourable senators, I will stand beside the
minister and defend free speech at any given moment in any given place in
Canada. However, we have a law in this land that prevents actions of this
nature. We have prosecuted, in the past, those who have taken advantage of free
speech. There is a loophole in this law concerning the place of origin.
Apparently, the Ontario Human Rights Commission covers this area, and it is my
understanding that it is possible that action may be taken against Ms Thobani
under the Ontario legislation.
Honourable senators, I do not believe in hiding behind the right to free
speech. The fact is that the organization from Boulder, Colorado has cancelled
their conference. Some may say that they are surprised by that action by an
academic group. I do not know if they are an academic group or a professional
group. The letter indicates that they are a "dental task force." There are
other groups that have cancelled events as well, and that sends a clear message
that the government must not only appear to distance itself, but must distance
itself in such a manner as to ensure that these organizations will not cancel
their conferences in the future.
The premier's office has reported that other conferences have been cancelled.
The economy of British Columbia is being challenged now, as the honourable
senator is aware. I am urging the government to distance itself further so that
more of these cancellations will not occur. Is the Honourable Leader of the
Government in the Senate prepared to take my suggestion to cabinet?
Senator Carstairs: I thank the honourable senator for his question.
With the greatest respect, I am not prepared to take that matter to cabinet. An
attack on the National Action Committee for the Status of Women because of the
actions of one former president is not appropriate. It is not any more
appropriate than it would be for me to attack the PC party because the
honourable senator used to be the president.
Senator St. Germain: Honourable senators, during the Meech Lake
Accord, the leader chastised and criticized the Senate to the greatest extent,
and now she stands up and make such a statement. I find that to be shameful. If
we are to have proper dialogue in this place, these cheap shots are
Honourable senators, the fact remains that I am not attacking the National
Action Committee on the Status of Women. Rather my comments are directed towards
the funding of such groups, whether they be the Women's Resistance Conference or
other groups. That is what I urge honourable senators to consider.
Senator Carstairs: Honourable senators, I have certainly expressed,
over the years, my belief in a reformed Senate. Since my father was a member of
this venerable institution for 25 years, I have valued the Senate. I was a child
of 13 years when I used to run up and down these corridors. You cannot find
anything on the record to indicate that I have criticized this institution. I
have indicated that I believe this institution has not reached its fullest
Hon. David Tkachuk: Honourable senators, I have a supplementary
question. Did Ms Thobani receive a standing ovation from the majority of the
people at that conference who listened to her speech?
Senator Carstairs: Honourable senators, I was not in attendance at
that conference. My understanding is that there were individuals who gave her a
standing ovation. I certainly would not have given her a standing ovation. I
understand that Senator Pearson, who was present, did not give her a standing
ovation; and I understand that the Honourable Minister Fry did not give her a
standing ovation. Thus, it was clearly not unanimous. If some individuals in
that audience gave her a standing ovation, that was their right as Canadians. I
do not agree that that speech deserved anything but condemnation.
Senator Tkachuk: Honourable senators, I did not deny that they had a
right to give Ms Thobani a standing ovation if they wished. However, if there
was a standing ovation, could the honourable leader inquire as to whether there
was one or many standing ovations? If there were many standing ovations by the
people who participated in that conference during Ms Thobani's speech, that will
answer my question.
Senator Carstairs: I thank the honourable senator for his question,
but it is not within my purview to obtain that information because it was not a
government conference. The conference at issue was for an organization that
brought together people to talk about victims of violence. That was the purpose
of the conference. This week, we are celebrating the YWCA's Week Without
Violence. I wish to be on the record as supporting that, but at the same time, I
wish to condemn the remarks of someone who made inappropriate comments at a
conference dealing with women and children, not international and foreign
Senator Tkachuk: Did the federal government fund this conference?
Senator Carstairs: Yes, we did fund the conference, as we fund many
conferences, but we do not monitor each one of those conferences. We do not have
individuals in attendance to indicate whether or not there were standing
ovations. I can only assume from the media reports, as I indicated, that there
was a standing ovation. I cannot indicate how many in the audience participated
in that standing ovation, and I suspect neither could anyone else.
Hon. Terry Stratton: Honourable senators, I have a question for the
Leader of the Government in the Senate as a follow-up to yesterday's discussion.
This will be a change of topic.
Since the Prime Minister is in Halifax today seeing off our troops, perhaps
the Leader of the Government can confirm which ships, as named by the Department
of National Defence, are actually going to sea. To my understanding, as of
yesterday, they are the frigates Halifax, Charlottetown and
Vancouver; the destroyer HMCS Iroquois; and the supply ship HMCS
Preserver. Those were the five ships, but the minister announced there would
be six. Can the leader inform us today which was the sixth ship?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the sixth ship has not yet been identified. Three ships will leave today and the
others will leave in due course.
While I am on my feet, I wish to follow up on a question yesterday from
Honourable Senator Tkachuk about whether there have been government press
releases or statements about the activities of the Taliban. We did a Web site
check to see what we could find and determined that one statement dealt with the
identification of religious minorities. There may well be others, but the
government has been very clear in responding to certain activities by the
Taliban in the past.
Senator Stratton: Honourable senators, is there a reason why the
government has not named the sixth ship? We keep hearing reports that, perhaps,
no other ship is ready to sail. Perhaps there is a shortage of sailors. Can the
Leader of the Government in the Senate confirm why that sixth ship is not
available and why it is not leaving now? If it is intended that it will depart,
can the minister indicate the anticipated departure date?
Senator Carstairs: As honourable senators understand, certain security
issues are involved here and I cannot give all the details that everyone would
like to hear in a public forum. The sixth ship has not been identified in the
sense that the partners have not yet decided what type of ship they want at this
point in time.
Hon. A. Raynell Andreychuk: Honourable senators, my understanding is
that the Prime Minister will be going to the APEC meeting in Shanghai. On
September 11, we learned, in graphic form, the lesson of the link between
politics and the economy. Will the Prime Minister raise with his Chinese
counterpart the brutal treatment of the Falun Gong in China?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the APEC meeting is still scheduled to begin on October 20. It is one of a few
conferences that have not yet been cancelled. A number of issues will be raised,
including the economies of APEC nations, particularly in light of September 11.
The Prime Minister will seek allies in the war against terrorism, and terrorism
will now become, perhaps, a more significant part of the agenda than it was
As to the honourable senator's specific question with respect to the Falun
Gong, I will make the Prime Minister aware of the fact that she and other
honourable senators, I am sure, wish that that issue be raised.
Resuming debate on the motion of the Honourable Senator Poulin, seconded by
the Honourable Senator Callbeck, for the second reading of Bill S-31, to
implement agreements, conventions and protocols concluded between Canada and
Slovenia, Ecuador, Venezuela, Peru, Senegal, the Czech Republic, the Slovak
Republic and Germany for the avoidance of double taxation and the prevention
of fiscal evasion with respect to taxes on income.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, a similar bill came to us about two years ago. One of the countries
involved at that time, as it turns out, is now one of America's great allies in
the war against terrorism, namely, Uzbekistan. It was pointed out that this
country's human rights record was one of the most appalling imaginable. Canada
has no great investment in that country and there are problems getting foreign
currencies out. The question that arose at that time was this: Why do we have
tax conventions with countries such as Uzbekistan? Doing so, to my mind and to
the minds of others, sanctions activities in a particular country with which we
are not at all sympathetic. The argument went so far that the bill was referred
not only to the Banking Committee for study of the tax conventions themselves
but also to the Foreign Affairs Committee for study of the human rights aspects.
Those discussions were very valuable. It was hoped that when future bills of
this nature came to us, like this one today, where there are six or seven
nations involved, the human rights records of those countries would at least be
included in the briefing book.
Perhaps the government is more gun-shy now because the reference to the human
rights of each country in the current briefing book is much less expansive than
it was in the book that covered the previous bill to which I just referred.
Fortunately, there are no glaring Uzbekistans in this list. We could quarrel
with one or two countries, but not enough to make an issue of it. However, I
should like to think that when we negotiate with countries with glaringly
delinquent human rights records, the government will advise us of those records.
We can get such information off the Internet through Amnesty International and
other organizations, but the government has a responsibility to bring it to our
For the record, I will raise this matter in front of the Banking Committee.
However, I have no objection to this bill pursuing its ordinary course.
Hon. A. Raynell Andreychuk: Honourable senators, I wish to speak to
this bill as well. The Foreign Affairs Committee has studied the issue.
Previously, income tax conventions were signed with countries where a
commonality of security or other linkages were sufficiently and traditionally
entrenched so that we could have some confidence that their taxation systems
mirrored ours. It was important that we proceeded with this type of initiative.
However, as Canada's influence expanded into other countries around the
world, it became abundantly clear that while the tax department does a full and
complete analysis of the acceptability of the taxation system and the procedures
surrounding taxation, no analysis was being done country by country to determine
whether other issues in those countries were receptive to such a close
One such issue is privacy. In Canada, we give a lot of information to our tax
people. If a double-taxation agreement is in place, information can and often
does get into the hands of the signatory countries. We have no idea whether they
treat confidentiality and privacy in the same manner as we do. We also do not
know whether their concept of good governance and the rule of law takes into
account the same issues that we do, such as human rights and the ability to come
before the courts to defend oneself against government action. No one in the
system stands back and looks at whether these agreements are in Canada's
national interest. All we are looking at is specific financial interest, country
Consequently, we had two bills come before the Foreign Affairs Committee. In
the first one, the taxation people indicated they do not do a countrywide
assessment on all factors. They simply look at financial factors. There was an
undertaking that perhaps it was valid to look beyond that. In the second bill,
which included Uzbekistan, there was some analysis, but it was done as a result
of our prodding. There were assurances given that this kind of countrywide view
would be taken into account. This bill is going to the Banking Committee and,
again, a unanimous recommendation made by a Senate committee is not being
From day to day, we do not know who our allies are or what progress is
occurring in these countries. Uzbekistan may be one we want to look at in great
detail. If we are part of the international community, we treat all our
counterparts equally, and there should be some screening to prevent
superficially identifying some countries as less worthy and some traditionally
more worthy. Canada has always stood on being neutral in that we treat all
countries equally. We do that by way of the process through which all countries
must go if they are to sign a taxation agreement.
I do not believe that the taxation process is sufficient to look at Canada's
national interests on more global questions, nor do I believe it protects and
affords the kinds of assurances that the Canadian government should give to
businesses and individuals in other counties, particularly in our global
Again, honourable senators, I am extremely disappointed that the Foreign
Affairs department has not seen fit to follow through on our recommendations,
and I am extremely disappointed that this house will now move this bill to the
Banking Committee, avoiding what I would consider to be appropriate scrutiny in
the Foreign Affairs Committee.
Hon. Céline Hervieux-Payette: Honourable senators, in the past, I have
sponsored tax bills that concerned other countries where, indeed, the emphasis
was not on human rights. It seems to me that Canada's philosophy has always been
to promote the economic progress of these countries, because the more the wealth
is shared, the more jobs and the more opportunities there are to educate the
This issue was not discussed by the Standing Senate Committee on Banking,
Trade and Commerce, but it can be raised without any problem. The bill seeks
primarily to serve the best interests of Canadian investors and not adversely
affect them. It goes without saying that we support foreign trade, so as to
allow those countries that are not fully developed to create quality jobs and
allow us to export not only our loonies, but also our traditions and values.
Honourable senators, the Standing Senate Committee on Banking, Trade and
Commerce, on which I sit, will review this bill very carefully to protect the
best interests of Canadians.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Sharon Carstairs (Leader of the Government), pursuant to notice
of October 16, 2001, moved:
That a special committee of the Senate be appointed to examine the subject
matter of Bill C-36, An Act to amend the Criminal Code, the Official Secrets
Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and
other Acts, and to enact measures respecting the registration of charities, in
order to combat terrorism, in advance of the said bill coming before the
That the bill be referred to the said special committee in due course;
That the following Senators be appointed to serve on the Special Committee:
namely the Honourable Senators Andreychuk, Bacon, Beaudoin, Fairbairn, P.C.,
Fraser, Furey, Jaffer, Kelleher, P.C, Kenny, Murray, P.C. Stollery and
Tkachuk, and that four members constitute a quorum;
That the committee have power to send for persons, papers and records, to
examine witnesses, to report from time to time and to print such papers and
evidence from day to day as may be ordered by the committee;
That the committee have power to sit during sittings and adjournments of
That the committee have power to authorize television and radio
broadcasting, as it deems appropriate, of any or all of its proceedings;
That the committee have power to retain the services of professional,
clerical, stenographic and such other staff as deemed advisable by the
That the committee be permitted, notwithstanding usual practices, to
deposit any report related to its study of the subject-matter of the Bill with
the Clerk of the Senate, if the Senate is not then sitting, and that any
report so deposited be deemed to have been tabled in the Chamber.
She said: Honourable senators, the government has been responding to the
events of September 11 with a wide variety of initiatives, from increased funds
for certain departments and agencies to the creation of a more secure identity
document for permanent residents, to Operation Apollo, the largest deployment of
Canadian Armed Forces since the Korean War, involving more than 2,000 men and
women. The deployment of troops is a difficult decision for any government under
any circumstances, and I can assure honourable senators that the decision was
not taken lightly. The introduction of Bill C-36, the Anti-terrorism Act, on
Monday of this week in the House of Commons was another important step in
Canada's fight against terrorism.
Honourable senators, we gave careful consideration to the possibility of a
pre-study before deciding to propose it to the Senate. It must be noted that in
recent times, the Senate has rarely resorted to pre-study, preferring instead to
conduct its full committee process on government bills only after they have
passed the other place. Pre-study used to be a prominent feature of the Senate's
work, but it has waned in the past decade.
In the view of the government, and I dare say a good number of my colleagues
on all sides of the Senate who have spoken to me privately, the need to take
steps to ensure the security of Canadians and Canadian interests deserves our
best effort to deal with Bill C-36 in an expeditious manner. The events of
recent weeks have impressed upon all of us the need to respond in a timely way
to reassure Canadians that everything that can be done is being done to
guarantee their safety and liberty.
Pre-study is one way of ensuring timely passage of this bill while at the
same time maximizing the Senate's capacity to make a real contribution to the
legislative process. I am confident that our committee will be able to make a
very important contribution. As a Minister of Crown, I assure honourable
senators that when the Senate committee speaks, the government will be
listening, and listening carefully.
The Hon the Speaker pro tempore: I apologize for interrupting
the Honourable Senator Carstairs, but I am having problems hearing. Please,
honourable senators, out of respect for senators who are speaking, take your
conversations to the reading room.
Senator Carstairs: On this point, let me quote the Prime Minister when
he spoke in the other place on Monday of this week:
...we all recognize that the legislation has of necessity been prepared
quickly. Therefore, the role of the justice committees of the House and Senate
in scrutinizing the bill will be of particular importance. It must examine the
bill through the lens not only of public safety but also of individual rights.
I can assure the House that the government will pay close attention to the
findings and recommendations of the committees. I want the committees to give
the bill a thorough study, while obviously taking into account the need to pass
legislation as quickly as possible.
Being mindful of the need to deal with the bill in a timely way, I am sure
honourable senators will agree that, in this case, a pre- study is warranted. By
choosing this route, we will preserve the Senate's capacity to have input in the
development of the bill, while making it possible to proceed more quickly than
if we dealt with the bill through our more ordinary procedures.
For that reason, I ask all honourable senators to support this motion, which
would establish a special committee of the Senate for the purpose of the
pre-study. I note for senators' interest that it is our intention to refer the
actual bill back to the special committee once it passes second reading in the
Senate. This motion reflects that intention. In no way is this process meant to
stymie debate when we receive that bill in its appropriate form.
I will be addressing the bill itself in detail when it eventually arrives in
the Senate. However, let me take this opportunity to place on the record a brief
overview of the initiatives contained in Bill C-36.
This legislative initiative helps us ensure that the most effective tools
possible are in place to help our police, prosecutors and courts to deal with
the terrorist threats. Criminal Code provisions governing acts such as
hijacking, attacks on aircraft and murder remain important tools that will
continue to be available for prosecuting criminal acts committed by terrorists.
However, the events of September 11 call for additional tools to be made
available to facilitate those efforts. It is not enough to improve our ability
to bring terrorists to justice. We must find ways to incapacitate terrorist
groups, even before they can attack, by striking at their organization and
financing. With the passage of this legislation, it will be an offence under the
Criminal Code to knowingly participate in the activities of a terrorist group.
It will also be a crime to finance terrorism and, more specifically, it will
be an offence to provide or collect property with the intention of using it to
carry out terrorist activity. In this regard, the bill will implement, fully and
effectively, the International Terrorist Financing Convention and United Nations
Security Council Resolution 1373. The bill defines "terrorist activity" in
accordance with the offences in the United Nations conventions and the
definitions used by our allies, but also takes into account Canadian values.
Based on this definition, the bill allows the government to freeze the assets of
terrorists and terrorist groups as required by the UN convention and UN Security
Council. Further, not only will we freeze the assets of terrorists, we will in
this bill create measures to permit the seizure and forfeiture of those assets.
The challenge in developing this legislation has been to respond in a way
that reflects our core values of freedom, democracy and equality. The attacks of
September 11 may have caused us to re- examine the balance between freedom and
security, but rather than retreat, we will proceed in way that reflects our
deepest values and does not abandon them.
This bill balances the need to protect Canadians from terrorist harm with the
need to respect, preserve and promote the fundamental Canadian values guaranteed
in the Charter of Rights and Freedoms. It will provide meaningful protection of
civil liberties through the inclusion of important due process guarantees,
including judicial oversight, access of individuals to effective means of
redress, acknowledgment of rights, privileges and immunities, and other
The bill also reflects the importance of re-examining the necessity and
effectiveness of these measures on an ongoing basis and calls for a
parliamentary review after three years.
In developing this legislation, we have paid close attention to what other
democratic countries are doing in the fight against terrorism. It is important
that we act in a way consistent with the approach of other democratic countries
and that conforms with international law, and above all, it is important to
reflect our values as Canadians.
In order to ensure that we respect and protect Canadian values, we must
engage in a robust debate about these and other measures that the government
will put before Parliament and the Canadian people. The need for an honest, open
and inclusive debate has perhaps never been more pressing than it is now, as we
move forward in the fight against terrorism. By agreeing to participate in a
pre-study, the Senate from the very outset will be able to make an important
contribution to this essential public debate.
Many of us have been horrified to learn that, subsequent to the attacks on
the United States, some groups and individuals have been the target of racial
and religious slurs, and even violent attacks. There is no place for this
behaviour in our country. The anti-terrorism bill contains two proposals that
will strengthen the protection of religious freedom and act to counter hatred
based on race, religion and ethnic prejudice.
The Criminal Code already contains strong measures to combat hate crimes. We
are proposing in this legislation the creation of a new offence in relation to a
place of worship — a church, a synagogue, a mosque, a temple or similar place —
where it is proven that the attack was motivated by hate based on religion. The
maximum penalty for this new offence will be ten years imprisonment. The new
offence sends a clear signal that attacking a religious institution is a serious
The bill also introduces an amendment to the Canadian Human Rights Act to
combat hate propaganda. The act already prohibits the use of telephone
communications to expose people to hatred or contempt because they are
identified as being of a particular religion or ethnic origin. It will now be
amended to ensure that it covers the spreading of hate messages via the Internet
and other computer systems.
I have already touched on the Charter several times in this speech, but let
me say that anyone who follows the work of the Senate would expect nothing less
from this institution than careful scrutiny of this bill through the lens of the
Charter of Rights and Freedoms. For that reason, I should like to take a few
moments to highlight some of the many checks and balances designed to ensure
consistency with Canada's legal framework, including the Charter of Rights and
Freedoms. I will mention just a few of the safeguards that are set out in this
The scope of the provisions of the bill is clearly defined so that the
provisions are targeted at terrorists and terrorist groups. Legitimate political
activism and protests are thereby protected through the precise definition of
Under the participation and contribution offences, the burden of proof will
be on the state to establish that there was intent on the part of the accused,
that the activities were "for the purpose of facilitating or carrying out
The process of adding a group to the list of terrorists incorporates a number
of protections, including provisions for removal, judicial review, and
safeguards to address cases of mistaken identity. As well, the list must be
reviewed every two years by the Solicitor General.
Procedural safeguards built into the civil forfeiture scheme include court
protection of the interests of family members in the principal residence, access
to the property in order to meet reasonable living or business needs and legal
expenses, and appeal procedures.
The Attorney General must consent to prosecute the financing of terrorism
offences. It is the state that carries the burden of proof for establishing that
the accused knew or intended that the money or resources were being used to
plan, facilitate or carry out terrorist acts.
In fulfilling its mandate to collect foreign intelligence, the Communications
Security Establishment must receive authorization from the Minister of Defence
to intercept any communication to or from a foreign target located outside of
Canada that originates or ends in Canada. The minister must be satisfied before
issuing such authorization that measures are in place to protect the privacy of
Police may use preventive arrest provisions to bring a suspected terrorist
before a judge, where there are reasonable grounds to believe that a terrorist
activity will be carried out and reasonable grounds to suspect that imposing
conditions or arrest is necessary to prevent the carrying out of the terrorist
activity. The threat must be specific and involve a specific individual. Except
in exigent circumstances, the Attorney General must consent to the arrest. In
all cases, the detention after arrest must receive judicial review within 24
hours. In addition, the consent of the Attorney General is required before a
judge can be asked to impose supervisory conditions on the release of the person
or detain the person for any longer period, up to a maximum of an additional 48
I would note, for the interest of honourable senators, that the media reports
mentioning arrest without warrant for up to 72 hours have failed to mention the
judicial process that must be invoked within 24 hours to detain a person for
that length of time.
Under the investigative hearing provisions, a judge may order the examination
of a material witness. In order for an investigative hearing to occur, the judge
must be satisfied that the consent of the Attorney General was obtained and that
there are reasonable grounds to believe that a terrorist offence has been or
will be committed. In addition, during the hearing, people are protected from
self-incrimination, and laws relating to privilege and the non-disclosure of
information, as well as the right to counsel, will continue to apply. The
legislation also provides the judge with the authority to include terms and
conditions to protect the interests of the witness, third parties and any
These examples are just an illustration of the special care that has been
taken to preserve the rights of Canadians throughout this bill. I know that our
Senate committee will want to examine each of these protections carefully as it
studies the subject matter of Bill S-36.
Honourable senators, let me be clear. The government recognizes that the
preparation of this legislation was accomplished in a very short period of time.
We want to get it right. The work of the committees of both Houses will be
invaluable to the government as we move forward with this initiative.
For the Senate to make its maximum contribution, our wish is to set in motion
a pre-study that will enable the Senate's deliberations to be taken into account
before the bill passes in the other place. In that way, we can maximize the
potential to bring our diverse expertise to bear on these significant
initiatives, while helping to move the bill along in a timely way. I ask
honourable senators to support this motion.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, I should like to make some comments on this motion before the house. I
wish to begin by making it clear that the opposition intends to support this
The comments I would add at this time cover four areas. First, I want to
speak about the practice of pre-study. Second, I want to speak about the
substantive issues alluded to by the Leader of the Government in the Senate that
are found in the draft Bill C-36. Third, we must examine the conditions that
ought to be present when the state assumes extraordinary powers, such as in
times of emergency. Finally, I should like assurance that we will have
sufficient mechanisms in place to give the kind of oversight required in a free
and democratic society when we give the state extraordinary powers.
Let me begin, honourable senators, by pointing out that on September 18, when
we had our debate on the challenges facing us after the horrible, evil events of
September 11, some of us on this side underscored the importance of the Senate
of Canada taking immediate concrete steps. There is a responsibility, indeed, a
duty on behalf of this branch of Parliament to ensure that we have the
infrastructure in place to deal with the challenges of this new international
environment, which includes, regrettably, horrific acts of terrorism.
We suggested that a pre-study of Bill C-16 might have been an important
concrete step. Bill C-16 dealt with the matter of fundraising. We are quite
pleased that the government has seen fit to use this mechanism of pre-study, and
it should not be dissuaded from using it, notwithstanding the view of some
honourable senators who have held positions of leadership in this place on the
I point out, however, that the pre-study process is effective only if the
Senate committee doing the pre-study gets its work done in a timely fashion. By
"timely fashion," I mean in time for the report of our special committee to be
in the hands of the members of other place, preferably, when the bill is still
at committee stage.
In terms of a practical time line, I would encourage the honourable senators
who will constitute the membership of the special committee to aim for a date in
early November. It is my understanding that the report stage in the other place
may come anywhere between November 1 and November 6.
My recommendation to the special committee is that it keep an eye on the time
line being followed in the other place in order that a report or interim report
could reach the Senate in time so that our recommendations might influence any
changes we feel would be needed in this bill before the bill is out of committee
stage in the other place.
My second point is that our participation in pre-study does not imply any
commitment to an abbreviated process the Senate might undertake to follow when
we receive the bill. We do not know what will be the content of the bill when it
comes from the House of Commons. We must maintain our right to examine that
bill. Clearly, we will be better informed on the content and the subject matter
having done some pre-study work and having had a report from the special
committee, but the bill will have to go through the normal process when it is
In terms of the substantive issues in this bill, honourable senators, my hope
is that the special committee takes a careful look at what appears to be a
failure in the bill as currently written to define terrorism. There is no
definition of terrorism in the bill. Terrorist activities and terrorist groups
are defined, but not terrorism.
Honourable senators, this is not an issue of relativism — the one man's
terrorist is another man's freedom fighter argument — as there are working
definitions of terrorism. National liberation movements are well defined and
well understood in terms of international law.
In his book on terrorism, Paul Wilkinson defines terrorism as premeditated.
He writes that it aims to create a climate of fear directed at a wider audience
or target than the immediate victims, involving attacks on random and symbolic
targets, including civilians, and acts of violence that breach social norms,
thus causing outrage. Terrorism is used to influence political behaviour.
I point this out to highlight that the committee should look at whether it
would be wise to provide in the statute a clear definition of terrorism. We have
a bill right now which sidesteps that matter and gives merely a definition of
Honourable senators, I would hope that the committee and all Canadians would
not hesitate to criticize the government for its failure to ratify two of the UN
conventions dealing with terrorism. The bill provides for the ratification of
the International Convention for the Suppression of the Financing of Terrorism
and the International Convention on the Suppression of Terrorist Bombing. That
should have been done some time ago. Canada negotiated and signed these
conventions two years ago, but this government failed to ratify them.
Certain members of cabinet have suggested that the cabinet itself was worried
about offending minority constituents. Whatever the reasons, I simply make the
point that the government is not without some fault in not keeping up to date.
Those conventions ought to have been ratified some time ago.
Another issue I hope the committee will focus on and explore in its
examination of witnesses is the seizing of assets of groups deemed to support
terrorist organizations. Similar American acts regarding the seizure of assets
of narcotics traffickers have been subject to widespread abuse. Police have been
accused of planting small amounts of drugs in vehicles in order to seize these
vehicles and then purchase them cheaply at auction. An amendment to the bill
giving Parliament a more active oversight role should include an oversight of
the disposal of assets of terrorist groups.
In terms of some of the substantive issues that I see in Bill C-36 that the
committee might examine, my last point relates to the Official Secrets Act.
Amendments to the Official Secrets Act do not include a removal of the reverse
onus in the act. As it stands, the burden is on the accused to prove that he or
she is not in possession of secrets to which they are not privy or information
that he or she has legally divulged to which he or she is privy. This is in
contradiction to the Charter, which puts the onus on the state. Due to the high
probability of a successful challenge under the Charter, prosecutions under the
act are non-existent.
I believe it was back in 1982 that there was an attempt at a prosecution.
Violations are addressed administratively. If removal of the reverse onus is not
included in Bill C-36, then the Official Secrets Act amendments are the weakest
link and, perhaps, the bill will run into some major difficulties before the
The third point, honourable senators, is that we must stand back a little
bit. I hope the committee will use this approach, in part, as a frame of
reference, as it does its work. No state of emergency has been declared. We in
Canada are not in a state of emergency. Therefore, the kinds of extraordinary
powers that are made available by democracies to the state cannot be taken on by
the state without such a declaration. In the last few days, we have heard many
references from government spokespersons that in the drafting of this bill it
has gone through the Charter wringer over and over again. It is a nice metaphor.
I hope they are right when they say that this bill is Charter-proof.
However, honourable senators, there are lacunae in our Charter. Our Charter
has an important place in our democracy, but it is not the perfect instrument.
For example, our Charter does not speak of the derogation of rights in times of
national emergency. I want to draw to the attention of honourable senators the
International Covenant on Civil and Political Rights ratified by Canada in 1976.
In particular, I wish to draw to the attention of honourable senators article 4
of the convention which speaks directly to times of national emergency, when the
life of the nation itself is threatened.
What does the international covenant say? It is an international treaty to
which Canada is bound under international treaty law with the written agreement
of every government of Canada. All the governments of Canada said, "Yes, we wish
Canada to ratify this covenant, this treaty. We will respect the rights and
freedoms to which it speaks."
Article 4 states:
In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the State's Parties to the
present Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely
on the ground of race, colour, sex, language, religion or social origin.
That is the principle. It is the standard. If there is to be derogation, even
in times of proclaimed national emergencies, when some derogation may occur, it
can never be derogation from the right of non-discrimination.
Subsection 2 states that there shall be no derogation at all from article 6,
which deals with the right to life, or from article 7, which deals with torture.
In the bill, for example, there is the provision that a person could be brought
before a judge and made to talk. I am of the view that we would never see the
situation in Canada where people have electrical currents run through them to
make them talk — God forbid. However, let us ensure that the law will be such
that it can never derogate from the right to non- discrimination, from torture,
servitude or slavery. I will not go into all the arguments.
The point I want to make is simply this: We are not dealing with any declared
state of national emergency.
The Hon the Speaker pro tempore: I am sorry to interrupt the
Honourable Senator Kinsella; however, his alloted time has expired.
Is leave granted for the honourable senator to continue?
Hon. Senators: Agreed.
Senator Kinsella: I thank honourable senators.
What we are dealing with here, honourable senators, is not a state of
national emergency where the life of the nation is threatened. We are dealing
with a serious problem, but the committee might want to keep in mind that type
Finally, honourable senators, I wish the committee to be encouraged in its
work to pay particular attention, as Senator Carstairs has alluded to, to the
protection of human rights and civil liberties, that the mechanisms that the
bill provides for, up to this point, are the ordinary mechanisms. If this is a
special circumstance, a special infrastructure may be necessary to provide
appropriate oversight for the exercise of these extraordinary powers.
In my own view, honourable senators, at this early stage, I would like to see
a joint parliamentary commission established for the life of this act that would
provide ongoing oversight from the day it receives Royal Assent, such that the
rights and freedoms of Canadians may be secured. Those who will be exercising
these extraordinary powers will know that there is a parliamentary committee of
the two Houses keeping an eye on the exercise of these powers. This may be
plowing new ground. However, the bill before us is plowing new ground. I am not
sure whether that is the best model. I encourage the committee in the
examination of witnesses to see whether we can come up with a type of oversight
mechanism that would provide for the kind of security and protection that exists
under the CSIS Act in the form of the Security Intelligence Review Committee.
That committee is composed of a few members of the Privy Council; therefore
it has the security in respect of the public interest. The CSIS Review Committee
has done a good job in providing the oversight — not the micro-management of the
work of the agency, but rather that broader overview to ensure that the rights
and freedoms of Canadians are not arbitrarily interfered with, given the
extraordinary powers held by the officers of CSIS. Perhaps something of that
nature would be appropriate under this act.
Clause 145 provides for a review after three years. That model, perhaps,
could be worked on by the committee allowing a review of the operation to
commence immediately following Royal Assent, rather than after three years. I
would encourage the honourable members of the committee to determine whether a
mechanism might be identified to bring an amendment to that effect to the bill.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, I wish to move an amendment to the motion before us. I move, seconded
by the Honourable Senator Stratton, that the motion be amended by adding after
the first paragraph the following:
That the committee in its examination shall inter alia explore the
protection of human rights and civil liberties in the application of this Act;
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
Motion in amendment agreed to.
The Hon. the Speaker: Honourable senators, the debate may continue on
the motion as amended.
Hon. Anne C. Cools: Honourable senators, I have a question for Senator
An Hon. Senator: No.
Hon. Jerahmiel S. Grafstein: Honourable senators, I rise to note and
reiterate my objection, which should come as no surprise to many senators, to a
Senate committee pre-studying bills in parallel with the House of Commons. The
Senate should be free to examine and exercise its sober second review, only
after the Commons has done its work, in respect of the government's response to
this threat of terrorism. The Senate has demonstrated in the past that it can
fashion its practices in a timely way and yet not rush to judgment.
This bill contains many admirable provisions, yet it grants awesome new
powers to the state. These new powers should be carefully studied by the Senate,
after the Commons does its work, to determine if the response by the other place
is in keeping with the nature of the threat as it applies to Canadian security.
The Canadian public expects the Senate to carefully consider this bill,
especially in turbulent times such as these.
Honourable senators, as a question of principle, I disagree with the practice
of the pre-study of bills by the Senate because it is inconsistent with the
Senate's carefully crafted constitutional mandate of sober second thought.
I should hope that those honourable members selected to this special
committee would consider that the bill's granting of such extraordinary powers
is finite and should expire after five years, after ensuring that there is no
further clear and present danger to Canadian security.
Honourable senators, if we in the Senate have learned any lesson, it is that
the principles and practices of the Senate march best when they march together.
Hon. Gérald-A. Beaudoin: Honourable senators, I wish to second the
amendment of Senator Kinsella. There are some who may say that the amendment is
unnecessary, first, because all legislation must respect the Charter of Rights
and Freedoms since it is part of the Constitution and, second, because Bill C-36
on terrorism does not contain a notwithstanding clause. For that I am deeply
However, I second the amendment because it is good to ensure that the special
committee on terrorism, which the Senate is being asked to strike today, keeps
rights and freedoms firmly in mind. I wanted to say that it is entirely possible
to ensure the safety of all Canadians and still respect our constitutional
Charter, which greatly enhances our democratic values.
We quite rightly defend our rights and freedoms. We must also respect them in
all our legislation.
Hon. Serge Joyal: I rise this afternoon to speak to the motion. As the
Honourable Leader of the Government in the Senate mentioned in her presentation,
the committee will report to this house and then will consider what the other
place has done with the bill. The bill will then proceed, as I understand,
There are concerns that I wish to share with honourable senators, because a
member of the committee is in a better position to express and relay that
information. As a senator, I can speak freely at any sitting of the committee
and I intend to do so.
Honourable senators, Bill C-36 is important, not only in size but in terms of
implications. I am certain you remember that two weeks ago I spoke to Bill C-24
in respect of the anti-gang legislation. That is another complex bill that
concerns the issues of rights and rules of law. As well, there is Bill C-7 in
respect of youth criminal justice, which also concerns Charter issues and
international covenant issues, because it is the object of a reference in the
Quebec Court of Appeal on those specific points.
Honourable senators, those three bills are now before us. We are dealing with
them in various committees. My opinion is that they "cut short on the skin of
the Charter." In fact, they are almost unconstitutional. One of the bills, as I
mentioned, is already before the Court of Appeal of Quebec, and earlier today
questions were raised about that matter during Question Period.
Bill C-24 raises the importance of monitoring the criminal activities of
police during the course of investigations. This is a very important bill. I
studied the issue last summer during the recess. In my comments following
Senator Kelleher's speech, I gave the example of the Police Act of Great
Britain. It provided a mechanism to monitor decisions of the police to ensure
that if, in extraordinary circumstances, the police must resort to criminal
offences in the course of normal activities, they could be monitored so that the
ordinary citizen is protected.
This bill, which is also an important bill, has a preamble. The sixth
paragraph of the preamble, as the Honourable Senator Carstairs has stated,
refers to the Canadian Charter of Rights and Freedoms and the values that
underpin the Charter. This is broader than the values underpinning the Charter.
Those of us who have been participating for more than 20 years in the
discussions related to the Charter — and I see Senator Fairbairn will be
chairing the special committee — will remember that the whole concept of the
Charter was based on a fundamental principle that is the rule of law. The
Supreme Court Canada in the Reference re Secession of Quebec was clearly
eloquent on the process of the rule of law. I should like to read two lines from
paragraph 70 of their opinion. It states:
70. The principles of constitutionalism and the rule of law lie at the root
of our system of government. The rule of law, as observed in Roncarelli v.
Duplessis...is "a fundamental postulate of our constitutional structure."...
It provides a shield for individuals from arbitrary state action.
None of us deny that different circumstances prevail today in the fight
against organized crime or in the fight against terrorism. I am of the opinion
that the principle of the rule of law is paramount in the examination of any
extraordinary power given to police forces. When I read the clauses of the bill
dealing, for instance, with the interception of communications, with the
interception of e-mail, with communication between Canadians or someone in
Canada and abroad, things that are now covered with this bill, and when I read
in the bill that the authorization for the invasion of privacy is extended from
sixty days to one year, I ask: What kind of control is placed on those special
authorizations to ensure that there is no "bavure"? We all know — and I quoted
from it two weeks ago — that in 1981, the McDonald commission established a set
of principles that should guide anyone dealing with the control of police
activities that might be against the rule of law.
I want to refer again to a principle of the McDonald commission. I think it
is important for honourable senators to have this principle in mind because it
is paramount to any discussion that we will have on this bill. The McDonald
commission states clearly that nothing should prevail over the rule of law. The
needs of national security and national defence should not prevail over the rule
of law. To me, this is fundamental. In fact, so fundamental is the interception
of Internet and e-mail communications, given the advent of modern devices that
we know terrorists use extensively, we must be sure that there is a monitoring
capacity. I do not think we should invent that monitoring capacity.
Honourable senators, we must learn from the example of the British House of
Commons and House of Lords. Their report of June 1999 chronicled an extensive
consultation on the interceptions of communications in the United Kingdom. The
report recommended a procedure to monitor the interception of communications, a
code of practice, a compensation mechanism and the appointment of an independent
commissioner who reports to the Prime Minister, who tabled the report in
Parliament. There is control over what is clearly an invasion of the privacy
rights covered in our Charter.
Honourable senators, I do not wish to prolong the debate, but this matter is
of paramount importance. As I stated earlier, we are close to crossing, as the
French expression states:
"le Rubicon des droits et libertés" or the Rubicon of rights and
freedoms. If there is one important feature of our democratic system, one key
component of our rights and freedoms, it is the constitutional protection
afforded us by the Canadian Charter of Rights and Freedoms and the
international instruments Canada has signed.
Let me quote again Lord Chief Justice Woolf of Great Britain, who declared in
September, in the wake of the evidence we are all aware of, that:
We are a country governed by the law and we mustn't allow the stresses and
tensions, which are understandable, to deflect us from that...
Honourable senators, if there is an institution of Parliament that can
exercise that sober second thought, it is the Senate of Canada. Essentially,
that is why we are here. We are here to exercise an independent, long-term
perspective, a monitoring capacity over the direction that this country is
taking. This country finds itself in an evolution, and we may look back and say,
"What have we been doing? Where are we as a society?" This is an extremely
I now want to go over the last point made by Senator Kinsella. If we are to
give exceptional power in this bill to the police forces and to the
investigative authorities generally, then we should reflect on what the
Americans did last week. What did the Congress do last week when they adopted
special powers for their police? The compromise between the Senate and the
Congress was an expiration clause of those powers.
A number of clauses in this bill could remain in our statute books because
they are needed to recognize the conditions in which the police forces operate
now, but other powers are in front of us today because of exceptional
circumstances. When those exceptional circumstances are dealt with in the
appropriate time — and in the U.S. Congress it is five years — those powers will
This bill contains a sunset clause, as Senator Carstairs has mentioned and as
Senator Kinsella has echoed. It is an important clause, but we could go a step
further in committee deliberations to protect the unique character of Canada.
I shall end by quoting from Justice Earl Warren. He was a famous American
judge who, in 1967, had to judge the important Robel case. He said:
It would be ironic indeed if, in the name of national defence, we would
sanction the subversion of those liberties...which make the defence of the
In other words, to use another common image, it would be the snake that bites
its tail. We want to protect our freedom and liberties, but in so doing we may
I commend the Leader of the Government in the Senate for having recognized
that this bill needs sober second thought because there are elements in it that
raise questions, and if there is a fundamental role that we have as senators, it
is to reflect on the long-term implications and the kind of society we are
building by adopting those extraordinary powers.
Hon. Jim Tunney: Honourable senators, as you know, I am rather new to
this place. We are talking about a pre-study, an experience which probably most
honourable senators have not had before. What I wish to say is partly in the
nature of a question, if Senator Kinsella would care to entertain it. Is it not
slightly ahead of time to be putting forth an amendment before we have had a
look at the bill? I want to read this bill in its entirety. I will be making
some judgments on the contents of it. I am not saying I would oppose the
senator's amendment. I may very well support that amendment, but I would not be
surprised if in due course that same senator might want to change, add to or
redo his motion in some way. That is my question, my concern. I am looking for a
little bit of education here.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
it should be recognized that, if I speak now, I will close the debate, but I
wanted to take the opportunity to answer Senator Tunney's question either now or
The Hon. the Speaker pro tempore: Is leave granted, honourable
senators, for Senator Carstairs to respond to Senator Tunney?
Hon. John Bryden: Honourable senators, I find myself once again
concerned by the use of the phrase "the rule of law." Whatever we do in
consideration of this significant piece of legislation, we must be governed by "the rule of law." I have never been able to settle clearly in my mind what
the rule of law is. I understand in part what the rule of law is, but is there a
superior rule of law? Presumably, if we pass this bill and it becomes law, then
the people who act under it and who act in accordance with it will be acting in
accordance with the rule of law. As I understand law, the bill will be, at that
stage, a law. People are not acting arbitrarily; the state is not acting
arbitrarily; they are acting in accordance with the new law.
Then we get thrown back, and I have heard this so many times, right from the
old days of the Pearson bill: "Whatever happens, it must be done in accordance
with the rule of law because there is a reference to the rule of law in the
Charter of Rights and Freedoms."
I am hoping that the case before us is so significant that the committee, and
the chamber when the matter comes back to us later, will have an opportunity to
consider how this rule of law operates. Let me give you a very brief idea of why
I find it a difficult concept to put in context.
In the first "whereas" section of Bill C-36, it states:
WHEREAS Canadians and people everywhere are entitled to live their lives in
peace, freedom and security...
I believe the next "whereas" clause could have been inserted as follows:
WHEREAS the Constitution of Canada empowers the Parliament of Canada to
make laws for the peace, order and good Government of Canada...
Then all other "whereas" clauses could flow from that. If ever there were a
time in Canada for Parliament's preeminence to make laws in the interests of the
peace, order and good government of Canada, we are probably in such a state at
Presumably, if our Parliament makes a law in furtherance of its Constitution
— which empowers it to make those laws for the peace, order and good government
of Canada — it is acting in accordance with the rule of one of our superior
laws, if not the supreme law, being the Constitution Act, 1867.
At the end of the "whereas" clauses, it states that we are also to be
concerned with the rights and freedoms guaranteed by the Canadian Charter of
Rights and Freedoms. This is the question that comes to my mind: If the
Parliament of Canada, acting in the interest of peace, order and good Government
of Canada, makes a law that comes into apparent conflict with the Charter of
Rights and Freedoms in certain circumstances, in what sense are we acting in
accordance with the rule of law and in what sense are we acting in contravention
of the rule of law?
I want to make one other comment. I know I am not being very helpful here. As
Senator Joyal indicated, one principal reason for the Charter of Rights and
Freedoms is to protect the ordinary citizen from arbitrary actions by the state.
My observation is, if what we arrive at through this bill does not act
arbitrarily against the Charter of Rights and Freedoms, and it is in furtherance
of our parliamentary right to peace, order and good government, then it is the
Charter that would act as some sort of check to help us to avoid any
arbitrariness. In that regard, do we then need a British procedure or another
type of procedure? That country does not have a Charter of Rights and Freedoms
under which to act to prevent arbitrary actions of the state against their
As I understand the little bit of history that I know, it is not accidental
that the Constitution of the United States — and this is not precise — states
that the Constitution's role is to preserve the life, liberty and pursuit of
happiness of the individual. That is a paraphrase of the underlying principle of
the U.S. national government. The underlying principle of the Constitution of
Canada at the time of Confederation is not the same. The underlying principle
was that the Parliament of Canada would act for the peace, order and good
government of Canada, and they are not the same.
I put these comments on the record because this whole issue concerns me
greatly. I have not done a great deal of work on constitutional law. Senator
Beaudoin and Senator Kinsella will help me, but as we go through this bill, we
must grapple with some fundamental issues in order to hit the proper balance as
the Senate of Canada in exercising our sober second thought and our collective
I would be very appreciative if the committee and this chamber could come to
grips with some of these issues in reaching a final position on this bill.
Hon. Joan Fraser: Honourable senators, I cannot resist. As Senator
Bryden was rising to speak, I was, in preparation for the work that lies ahead,
reading the decision of the Supreme Court of Canada in the 1986 Oakes
case. That was the case in which the Supreme Court set out the criteria that
must be met if any law is to stand the Charter test under section 1.
Section 1 of the Charter of Rights and Freedoms guarantees the rights and
freedoms set out in the Charter subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic
society. In the Oakes case, the Supreme Court explained the tests that
must be met by any bill, including the one we will be looking at. To establish
that a limit is reasonable and demonstrably justified in a free and democratic
society, two central criteria must be satisfied. First, the objective must be of
sufficient importance to warrant overriding a constitutionally protected right
or freedom. The standard, we are told, must be set high. Second, once a
sufficiently significant objective is recognized, then the party invoking
section 1 — the government — must show that the means chosen are reasonable and
To make that decision, one must check three components of the test. First,
measures adopted must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on irrational
considerations. Second, the means should impair as little as possible the right
or freedom in question. Third, there must be a proportionality between the
effects of the measures responsible for limiting the Charter right or freedom
and the objective that has been identified as of sufficient importance.
The court goes on to say that the more severe the deleterious effects of a
measure, the more important the objective must be if the measure is to be
reasonable and demonstrably justified in a free and democratic society.
I thought it was perhaps worthwhile to recall those principles, honourable
The Hon. the Speaker pro tempore: Honourable senators, it is my
duty to inform the Senate that if Senator Carstairs speaks now, her speech will
close the debate. Do other senators wish to speak?
Senator Carstairs: Let me begin by thanking senators for their
participation and reminding them that we are voting this afternoon not on the
bill, not on the principle of bill, but simply on a motion to pre-study the
Senator Kinsella, in his motion of amendment, which, by the way, has already
passed, indicated that he wanted the breadth of the study to include issues of
the protection of human rights and civil liberties. Quite frankly, the spirit of
that amendment was one that I readily accepted when it was presented to me
earlier today. The idea is that the committee will now go off and do its
pre-study of the whole bill, but within that study, the committee will pay
particular attention to the issues of human rights and civil liberties. With
that, I am in full support. I hope the Senate will move in support of this
The Hon. the Speaker pro tempore: It was moved by the
Honourable Senator Carstairs, seconded by the Honourable Senator Milne, that —
An Hon. Senator: Dispense!
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Resuming debate on the motion of the Honourable Senator Cools, seconded by
the Honourable Senator Wiebe, for the second reading of Bill S-9, to remove
certain doubts regarding the meaning of marriage.—(Honourable Senator Wiebe).
Hon. Jack Wiebe: Honourable senators, I rise today to speak in support
of Bill S-9, to clarify the definition of marriage. If I am stopped after 15
minutes, I will sit down accordingly.
Bill S-9 will remove any doubt of ambiguity as to the historic and
traditional meaning of marriage, which is a union of a man and a woman to the
exclusion of all others. For myself, and I dare say the vast majority of
Canadians, marriage is a spiritual as well as a physical union between a man and
a woman. These are statements that are neither new nor are they
earth-shattering, but it seems in this modern era that they bear repeating. I
want to say again, it is my pleasure to take part in this debate on an issue
that our modern world seems to have forgotten.
Without a union between a man and a woman, none of us would be here. The
union of males and females of almost any living thing is required in order for
the species to survive. Despite advances in science and reproductive technology,
it basically can be no other way.
It goes without saying that marriage is not a brand new institution. From the
very beginning of human life on earth, the union of male and female was
recognized as necessary for the continuation of life, and this fact in itself is
reason enough for its special designation.
The religions of the world can agree on very few things, but they can agree
that the definition of marriage is a union between a man and a woman.
Christians, Muslims, Hindus, Jews, Buddhists and those of other faiths of the
world have reached consensus on this matter, and may I suggest so should our
I do not wish to mix church and state within this honourable chamber, but
this is one area where I feel they are connected. Marriage has its roots in the
religions for its ceremonies, in biology for the basis of family, and in the law
for the clarity of meaning. In my own very strong religious beliefs, marriage is
an institution established by God, and in some Christian and Orthodox
traditions, it is considered a sacrament. The married state between a man and
woman has long been recognized as a stable platform on which to build a stable
family life. The biological nature of marriage is to have and raise children,
building a new generation that enables Canada to have a strong and bright
future. The ceremony of uniting a man and woman by vows, by commitment, by the
recognition of this union by the Church and by the government is part of that
very long tradition.
In recent years, there has been an emphasis on different relationships, and
the traditional concept of what constitutes a marriage has been pushed into the
However, in June of 1999, the Department of Justice requested the Angus Reid
polling company to conduct a poll. The poll found 67 per cent of Canadians
supported the extension of benefits based on economic interdependency and need,
but on the premise that the traditional definition of marriage as one man and
one woman to the exclusion of all others remain the law of Canada. That is why
Bill S-9, the clarification of the definition of marriage, is so important.
Honourable senators, we need a law that allows for a clear understanding that
marriage is a coming together of a man and a woman to form a union. We need not
allow the courts to misunderstand the law, and that is why clarifying the intent
to follow nature and the traditions of our society becomes so very important.
This is why I agree with the recent decision of the British Columbia Supreme
Court ruling by Justice Ian Pitfield that "politicians, not judges, should
settle the matter" of the definition and the meaning of marriage. Judges are in
a position to make incremental changes to the law to reflect changes within
society. However, recognizing same-sex marriages would be a major change, not an
incremental one. Justice Pitfield said:
The change would affect a deep-rooted social and legal institution....A
change of the nature proposed would create new issues of social concern.
The capacity to marry is within the federal government's constitutional
jurisdiction, and it is the federal government alone that can enact legislation
to clarify or redefine marriage or change the rules on the capacity to do so. We
have an opportunity with this bill to clarify and maintain the definition of
It is important to note that marriage is not defined by federal statute, but
there are two acts that touch upon the substance of the relationship. The first
is the Modernization of Benefits and Obligations Act, 2000. Section 1.1 reads as
For greater certainty, the amendments made by the Act do not affect the
meaning of the word "marriage", that is, the lawful union of one man and one
woman to the exclusion of all others.
The Marriage (Prohibited Degrees) Act of 1990 does not define marriage, but
it states that relatives, brothers and sisters cannot marry.
The Senate should take this opportunity to clarify and ensure that there is a
clear definition of marriage.
The Random House Dictionary defines marriage as:
...the social institution under which a man and a woman establish their
decision to live as husband and wife by legal commitments, religious ceremony.
Merriam-Webster's Collegiate Dictionary, 10th edition, defines
...the state of being married; the mutual relation of husband and wife; the
institution whereby men and women are joined in a special kind of social and
legal dependence for the purpose of founding and maintaining a family.
Gage Canadian Dictionary simply defines marriage as:
...married life; living together as husband and wife.
The legal definition that is still applicable today of a marriage
relationship is the judicial decision from Hyde v. Hyde and Woodmansee
in 1866. Let me briefly quote from that decision:
Marriage has been well said to be something more than a contract, either
religious or civil — to be an institution. It creates mutual rights and
obligations, as all contracts do, but beyond that it confers a status. The
position or status of "husband" and "wife" is a recognized one throughout
Christendom: The law of all Christian nations throw about that status a
variety of legal incidents during the lives of the parties, and induce
definite rights upon their offspring. What, then, is the nature of this
institution as understood in Christendom? Its incidents vary in different
countries, but what are its essential elements and invariable features? If it
be of common acceptance and existence, it must needs have some pervading
identity and universal basis. I conceive that marriage, as understood in
Christendom, may for this purpose be defined as the voluntary union for life
of one man and one woman, to the exclusion of all others.
For 135 years, the basic social unit of our society and its legal definition
has not changed. It was the House of Lords that made that decision. Let our
upper chamber maintain this important principle.
This is a case that will eventually end up in the Supreme Court. The Senate
now has an opportunity to offer guidance and a clear definition of what marriage
Honourable senators, I heartily endorse Bill S-9. I urge all of us to respond
to the judicial activism that is taking place in our courts. I urge your support
for this particular legislation.
If another honourable senator wishes to speak, I will sit down, but it is my
understanding that Senator Banks, who is unable to be with us today, wishes to
speak to this motion.
On motion of Senator Wiebe, for Senator Banks, debate adjourned.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I move that the Senate do now adjourn and that all items on the Order
Paper and the Notice Paper that have not been reached stand in their place.
The Senate adjourned until Thursday, October 18, 2001, at 1:30 p.m.